Cavell v Transport for London

A pre-action admission may be withdrawn only with the court’s permission. The court must consider all the circumstances, each factor identified in the relevant Practice Direction, and the overriding objective. The factors have no fixed hierarchy, and their weight varies with the case. Where withdrawal is said to result from error, the absence of a proper explanation and of new supporting evidence may be particularly significant. The court should not conduct a mini-trial, but may assess whether the grounds relied on have substance. Potential difficulty in establishing contribution or indemnity does not necessarily justify withdrawal where the underlying facts can still be proved independently.

The claimant suffered a back injury after falling from his bicycle on a cycle path for which the defendant was responsible. During pre-action correspondence, the defendant’s claims handlers stated that liability would not be an issue, subject to causation. After proceedings were issued, the defendant pleaded a defence on liability and sought permission to withdraw the admission. The application relied on the alleged strength of the liability case and possible prejudice in pursuing contribution or indemnity from a contractor. The issue was whether permission should be granted under the withdrawal provisions governing pre-action admissions.

1. The application was dismissed. The statement that liability would not be an issue, subject to causation, admitted primary liability for the accident but made no admission about whether the injury, or any part of it, was caused by the accident.
2. The court’s power to permit withdrawal was governed by CPR 14.1A and Practice Direction 14, paragraph 7.2. The court had to consider all the circumstances, including each listed factor, without treating any factor as having predetermined priority. The approach in Woodland v Stopford [2011] EWCA Civ 266 provided useful guidance.
3. The court was not required to conduct a mini-trial. It could nevertheless examine the grounds advanced for withdrawal. The defendant’s evidence did not establish that the liability case was sufficiently strong to justify withdrawal. There was contemporaneous evidence of a defect, the defect remained present after the relevant inspection records, and it was later described by the defendant’s employee as a pothole.
4. The defendant’s contribution and indemnity argument did not justify withdrawal. Under the Civil Liability (Contribution) Act 1978, the admission could not itself prove the existence of a roadway defect against a contractor. The defendant would have to prove the defect, but the claimant indicated that he would assist in doing so. Any resulting difficulty was potential prejudice, not exclusionary prejudice.
5. The admission had followed an initial denial, a lengthy review, consultation with the defendant and the involvement of experienced claims handlers. No explanation was provided for the alleged error, and no new evidence supporting withdrawal was identified. Those matters were of very considerable significance. It would not further the administration of justice to permit withdrawal after mature consideration where there was no evidence that the admission had been improperly made.