Sowerby v Charlton

A pre-action admission of liability does not constitute an admission under rule 14.1 of the Civil Procedure Rules 1998. The rule concerns admissions made by parties about a case formulated in legal proceedings. Its streamlined mechanisms for entering judgment are inconsistent with treating pre-action correspondence as an admission under Part 14.

Nevertheless, summary judgment on liability may be entered where the defendant has no real prospect of resisting liability. When deciding whether an admission made after proceedings began may be withdrawn, the court considers all the circumstances and seeks to give effect to the overriding objective.

The claimant suffered catastrophic injuries, including paraplegia, after falling from an unguarded platform outside the defendant’s property. Before proceedings, the defendant’s solicitors made an informed admission of breach of duty, but the defence subsequently denied primary liability.

Master Tennant struck out the relevant defence and entered judgment on liability. Judge Playford QC dismissed the defendant’s appeal in [2005] EWHC 949 (QB). On the second appeal, the central questions were whether a pre-action admission fell within rule 14.1 of the Civil Procedure Rules 1998 and, if not, whether judgment on primary liability should nevertheless stand because the defence had no real prospect of success.

1. Appeal dismissed. The judge had erred in holding that Part 14 of the Civil Procedure Rules 1998 applied to a pre-litigation admission. The Master’s order nevertheless stood because the defendant had no real prospect of resisting primary liability.

2. Rule 14.1 forms part of a carefully constructed scheme principally regulating cases after proceedings have begun. A party’s “case” is formulated in a claim form or particulars of claim, and a person would not ordinarily be described as a party before proceedings commence. The rule-makers could readily have included pre-action admissions expressly. Treating correspondence before proceedings as falling within Part 14 would also complicate its streamlined procedures for entering judgment, particularly in money claims.

3. The Personal Injury Pre-Action Protocol reinforced that construction. It distinguished pre-action letters and responses from statements of case and created only a limited presumption that admissions would bind defendants in claims within its stated value range. It did not treat all pre-action admissions as Part 14 admissions.

4. Despite that conclusion, summary judgment was justified. The unguarded eight-foot drop presented an obvious risk of extremely serious injury. The defendant knew that parties occurred at the ground-floor flat and could reasonably foresee that visitors might leave after drinking. A second handrail or guard was an inexpensive precaution. The informed admission made after investigation, and the experienced first-instance judge’s assessment of liability, provided further support. Although contributory negligence remained a live issue, a complete denial of primary liability had no real prospect of success.

5. The court added, without needing to decide the withdrawal issue, that pre-CPR authority should not be used to construe rule 14.1. Standerwick v Royal Ordnance Plc did not assist, and Gale v Superdrug Stores Ltd should be approached with caution. The guidance in Braybrook v Basildon & Thurrock University NHS Trust was valuable for applications to withdraw admissions made after proceedings began. The court must consider all the circumstances, including good faith, prejudice, responsibility for prejudice, prospects of success, public interest and the proximity of trial.

1. Court of Appeal (Civil Division): Dismissed the defendant’s appeal, while holding that Part 14 of the Civil Procedure Rules 1998 did not apply to the pre-action admission. The judgment on liability stood on the alternative basis that the defence had no real prospect of success.
2. High Court, Queen’s Bench Division: Judge Playford QC dismissed the defendant’s first appeal in [2005] EWHC 949 (QB), following a rehearing because the Master had given no reasoned judgment.
3. Master: Master Tennant struck out the paragraphs denying primary liability, directed judgment for the claimant on liability and ordered a preliminary trial of contributory negligence.