| PRACTICE — Pleadings — Striking out — Claimant suffering personal injuries — Defendant making pre-action admission that liability would not be in issue — Proceedings commenced following withdrawal of admission — Whether part of defence putting liability in issue to be struck out — CPR rr 14.1(5), 3.4(2)
Walley v Stoke on Trent City Council [2006] EWCA Civ 1137
CA: Brooke, Smith and Wall LJJ: 31 July 2006
Where, in a personal injury case, a pre-action admission of liability was withdrawn by the defendant and proceedings were issued, an application could be made under CPR r 3.4(2) for the defence or part of it to be struck out as either an abuse of process or as otherwise likely to obstruct the just disposal of the case.
The Court of Appeal so stated when allowing the appeal of the defendant, Stoke on Trent City Council, from a decision of Judge Rubery who in the Stoke on Trent County Court on 9 August 2005 had dismissed the defendant’s appeal from a decision of Deputy District Judge Evans in the same court on 24 February 2005 to grant an application by the claimant, John Walley, under CPR r 3.4(2) to strike out the main part of the defendant’s defence and to enter judgment for the claimant (where the defendant had also cross-applied for permission to resile). The strike-out application had been founded on the defendant’s withdrawal of a pre-action admission as to liability, and the circuit judge when dismissing the defendant’s appeal had assumed that the court had a general discretion under CPR r 14.1(5) to hold a defendant to a pre-action admission or to allow him to withdraw it. On appeal, the defendant challenged that finding.
SMITH LJ said that the issue was whether the court had jurisdiction to enter judgment for a claimant in reliance on an admission made by a defendant before commencement of proceedings but which the defendant had subsequently withdrawn. Following Sowerby v Charlton [2006] 1 WLR 568 it was clear that CPR r 14.1(5), which provided that a court was empowered to permit a party to withdraw an admission, applied only to admissions made in the course of proceedings and not to pre-action admissions. Sowerby’s case had caused consternation: it appeared to some that defendants were now free to withdraw pre-action admissions and there would be nothing that a claimant could do about it. However, although in light of Sowerby’s case the instant decision could not stand because the circuit judge had made an erroneous assumption about his powers under CPR r 14.1(5) in relation to a pre-action admission, the court nevertheless had power under CPR r 3.4(2) to strike out a defence or part of it as an abuse of process, or as being otherwise likely to obstruct the just disposal of the case. However, the threshold applicable to CPR r 3.4(2) was much higher than would be the case were the court exercising a broad discretion under CPR r 14.1.(5). It was appropriate to review the instant case by reference to CPR r 3.4(2), and these were the conclusions: first, for a claimant to show that the withdrawal of an admission would amount to an abuse of the process of the court, it would usually be necessary to show that the defendant had acted in bad faith, and that could simply not be shown here; secondly, in order to show that the withdrawal was likely to obstruct the just disposal of the case, it would usually be necessary for the claimant to show that he would suffer some prejudice which would affect the fairness of the trial, but again the facts did not lead to such a finding. Accordingly the withdrawal was neither an abuse of process nor was it otherwise likely to obstruct the just disposal of the case; and a strike-out was not appropriate.
WALL LJ agreed.
BROOKE LJ delivered a concurring judgment.
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