Dar v Vonsak & Anor

On an appeal from a case-management decision, the court should interfere with the refusal to withdraw an admission only where the judge was wrong in principle, materially misunderstood the facts, ignored a relevant factor, relied on an irrelevant factor, or acted outside the generous ambit of reasonable disagreement.

An application to withdraw an admission must be assessed by reference to the relevant considerations in CPR 14 PD 7.2. The court may make a tentative assessment of the available evidence when considering prospects of success, without conducting a mini-trial. Serious allegations of fraud require particular care because the opposing party must have a fair opportunity to defend himself. Lateness and equivocal evidence may justify refusing permission.

The claimant brought proceedings arising from a road collision. The second defendant insurer had admitted liability in September 2010, but later sought permission to withdraw the admission, amend its defence to allege fraud, rely on late expert evidence and bring a counterclaim.

Her Honour Judge Faber refused the applications at the Central London County Court. The insurer appealed, arguing that she had failed to appreciate the significance of the expert evidence, had conducted an impermissible mini-trial and had exercised her discretion perversely by giving excessive weight to delay.

The appeal concerned the proper approach to reviewing that case-management discretion, including the assessment of prospects of success and prejudice.

1. Appeal dismissed. The judge’s refusal to permit withdrawal of the admission was upheld.

2. An appellate court reviewing this type of discretionary case-management decision should interfere only if the judge misunderstood the facts materially, misdirected herself in law, took account of an irrelevant matter, failed to take account of a relevant matter, or acted outside the generous ambit within which reasonable disagreement is possible.

3. The considerations in CPR 14 PD 7.2 were the correct framework. They included the grounds for withdrawal, new evidence, the parties’ conduct, prejudice, the stage reached, prospects of success and the interests of the administration of justice.

4. The judge was required to make some tentative evaluation of the evidence because prospects of success were relevant. That did not amount to a mini-trial. She was entitled to consider the earlier expert report disclosed by the insurer, even though the insurer did not intend to rely on it, because CPR 35.11 permitted another party to use a disclosed expert report at trial. The approach was consistent with Gurney Consulting Engineers v Gleeds Health and Safety Ltd [2006] EWHC 43 (TCC).

5. The insurer’s fraud case was weakened by its substantial delay, its failure promptly to plead fraud or obtain supporting evidence, and the disposal of the damaged vehicle. The expert evidence based on photographs was equivocal and produced conflicting opinions. The judge was entitled to conclude that the prospects of proving fraud were uncertain.

6. The seriousness of an allegation of dishonesty increases the importance of ensuring a fair trial and an adequate opportunity to answer it, engaging Article 6 rights under the European Convention on Human Rights. That consideration had to be balanced against the need to prevent abuse of the court’s process. The weighting of those factors was a matter for the first-instance judge, as recognised in Woodland v Stopford [2011] EWCA Civ 266.

• Central London County Court: Her Honour Judge Faber refused permission to withdraw the admission of liability and refused the related applications to rely on late expert evidence, amend to plead fraud and bring a counterclaim.
• High Court (Queen’s Bench Division): Permission to appeal was initially refused by Mackay J on paper and granted on renewal by Stuart-Smith J. Eady J dismissed the appeal and upheld the case-management decision.