Wood v Days Healthcare UK Ltd & Ors

Permission to withdraw a pre-action admission is governed by a broad, global discretion under CPR Pt 14.1A and Practice Direction 14 paragraph 7.2. The court must evaluate all relevant circumstances and weigh the listed factors without treating any one as automatically decisive. Material new evidence may include a dramatic and unexpected increase in the value and character of a personal injury claim, even where the underlying accident is unchanged. Finality and certainty are important, but they do not displace the required overall assessment of justice and fairness. Where the claimant has obtained judgment against another defendant, that judgment may substantially reduce the prejudice of permitting withdrawal.

The claimant brought personal injury proceedings concerning the failure of a wheelchair. Days had made a formal pre-action admission of liability in 2010, when the claim was presented as a fast-track claim worth less than £25,000. By 2012 the claimant’s condition and alleged losses had materially changed, and proceedings were issued claiming more than £300,000.

Days applied under CPR Pt 14.1A for permission to withdraw the admission. The High Court refused the application and entered judgment against Days on the admission. The claimant had also obtained summary judgment on liability against another defendant, D2. Days appealed, contending that the judge had failed properly to assess the new evidence, prejudice and the interests of justice.

1. Appeal allowed. The order refusing permission to withdraw the pre-action admission was set aside, and permission to withdraw was granted.
2. Under CPR Pt 14.1A and Practice Direction 14 paragraph 7.2, the court must adopt a global approach. It must consider all the listed factors and all the circumstances, then decide whether withdrawal is just and fair. The factors have no prescribed hierarchy.
3. The judge materially erred by treating the increased value of the claim as merely an inherent risk of personal injury litigation. The change from a claim reasonably assessed at under £25,000 to one exceeding £300,000 was highly material new evidence concerning injury, causation and quantum. The claimant’s own solicitors accurately described the claim as having changed entirely in character and amount.
4. The judge also failed properly to account for the fact that Days had not seen the MHRA report. Although the report was not new in existence, it was evidence Days had not considered because of an investigative oversight. The judge had found that Days would not have admitted liability had it seen the report.
5. The judge’s approach to the interests of justice was also flawed if it treated the issue as a balance between finality and fair outcome. Finality is relevant, but it cannot replace the global assessment required by the Rule and Practice Direction. The summary judgment obtained against D2 was a relevant circumstance which reduced the claimant’s need to continue against Days and was wrongly discounted.
6. Standing back and considering the circumstances as a whole, justice required permission to withdraw. The parties were directed to endeavour to agree a consequential Minute of Order.

• Court of Appeal (Civil Division): [2017] EWCA Civ 2097. Days appealed against the High Court’s refusal to permit withdrawal of the pre-action admission. The appeal was allowed and permission to withdraw was granted.
• High Court of Justice, Birmingham District Registry: the application to withdraw the admission was refused, and judgment was entered against Days on the admission.