Blake v Croasdale & Anor

An admission of primary liability made under the RTA Protocol includes an admission that the defendant caused loss. It therefore precludes reliance on an ex turpi defence based on the claimant’s alleged participation in a joint criminal enterprise, unless the admission is withdrawn.

Permission to withdraw an admission after proceedings have begun is governed by the circumstances identified in the Practice Direction to CPR 14. The court must not conduct a mini-trial. At this stage, it is sufficient that the proposed defence raises a real issue to be tried and has a realistic prospect of success. Proportionality, prejudice, the parties’ conduct, the stage of proceedings and the interests of justice are material.

The claimant suffered severe brain injury as a rear-seat passenger in a vehicle involved in a fatal road traffic collision. The second defendant, the driver’s insurer, admitted primary liability in pre-action correspondence but maintained that contributory negligence remained in issue.

After proceedings were issued, the insurer sought to withdraw the admission so that it could rely on an ex turpi defence based on an alleged joint criminal enterprise involving drug dealing. The claimant opposed withdrawal, arguing that the defence had no realistic prospect of success and that the admission should remain binding.

The court had to determine whether the admission covered causation and, if so, whether permission should be granted to withdraw it.

1. Binding admission. The admission of primary liability was made in the context of the RTA Protocol and was subsequently reaffirmed. An admission of liability under the Protocol includes an admission that the defendant caused some loss to the claimant. Since the ex turpi defence relied on the alleged criminal enterprise being the true cause of the loss, the admission necessarily precluded that defence. The admission was therefore binding under CPR 14.1B and could be withdrawn only with permission.
2. Realistic prospect of success. The proposed defence was supported by pleaded circumstantial evidence, including items associated with drug dealing, relevant messages, fingerprints and possession of cash and a weapon. The question was not whether the defence was likely to succeed or whether the evidential burden had provisionally been satisfied. The question was whether there was a real issue to be tried. The defence was not plainly baseless and could not properly be struck out.
3. Overlap with contributory negligence. The same alleged drug-dealing facts were relevant to the pleaded contributory-negligence case. Unless that pleading itself was struck out, the facts would have to be considered at trial in any event. It was therefore sensible for the causation and contributory-negligence issues to proceed together.
4. Discretion. Applying the factors in paragraph 7.2 of the Practice Direction to CPR 14, the court considered the insurer’s initially proportionate approach, the absence of serious misconduct, the prejudice to both sides, the early stage of proceedings, the absence of an imminent trial and the realistic prospects of the defence. Refusing withdrawal would discourage proportionate admissions. Permission was granted to withdraw the admission or admissions.