| Practice — Pleading — Claim for wrongful building design — Application for withdrawal of admission made in pre-action protocol and repeated in defence — Principles to be applied — Whether withdrawal permitted — CPR 17.1(2)(b).
White v Greensand Homes Ltd and another [2007] EWCA Civ 643
CA:(Chadwick, Latham and Thomas LJJ): 28 June 2007
A defendant, who has made a mistaken admission that he had been the designer of a building in pre action protocol correspondence which he repeated in his defence filed in proceedings, could not withdraw the admission without the court’s permission. In considering whether to grant permission the court had to have regard to the question of any prejudice to either party arising from either the grant or refusal of such an application.
The Court of Appeal so stated when allowing an appeal by the second defendant, BSF Consulting Engineers Ltd (BSF), from Judge Toulmin, GMG, QC, sitting in the Technology and Construction Court, who on 30 March 2007 dismissed BSF’s an application to withdraw its admission made during pre-action protocol correspondence and in a defence to a claim, based on Defective Premises Act 1972 and negligence, brought by Ray Malcolm White (for and on behalf of the members of Equity Red Star Syndicate No 0218 at Lloyds) as the insurers of the owner of a house. BSF, having mistakenly admitted that it was the designer of the building, applied to withdraw that admission on the ground that the actual designer was KWE Designs Ltd which had been wound up and dissolved.
CHADWICK LJ said that CPR 17.1.2(b) required that, where a party had served a statement of case (including a defence, see CPR 2.3(1)), he might amend it only with the court’s permission. In deciding whether or not to grant permission the court should , in a case where the effect of the amendment was to withdraw an admission made in an earlier statement of case, have regard to CPR 14.1 and to the Practice Direction which supplemented that rule. In particular, the court should, now, have regard to the matters listed in para 7.2 of that Practice Direction. Those matters included the relative prejudice which would be suffered by each party if the admission was (or was not) withdrawn. By contrast, if the admission was made in pre-action correspondence and had not been repeated following the commencement of proceedings — in particular, where it had not been made in an earlier pleading — the question for the court (in a case not falling within CPR 14.1A) was whether to allow it to be withdrawn in the party’s pleaded case would be to allow an abuse of process or a course likely to obstruct the just disposal of the proceedings. But, in that context also, the relative prejudice which would be suffered by each party if the admission was (or was not) withdrawn would be a factor which the court had to take into account. It had to do so in order to give effect to the overriding objective — to deal with a case justly. Fairness might require that a party who, by pre-action admission, had led the other party to act to his detriment should not be permitted to withdraw that admission. But, if the detriment was insubstantial, fairness would normally require that the case be determined on the basis of the real issue in dispute — albeit that an ill-advised admission might have been made at an earlier stage.
THOMAS and LATHAM LJJ agreed.
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