Wharfside Regeneration (Ipswich) v Laing O'Rourke Construction South Ltd & Ors

Permission to withdraw an admission is governed by a broad discretion. The court must consider all the circumstances, including the applicant’s reasons, the parties’ conduct, prejudice, the stage of the application, the merits of the proposed case and the administration of justice. The factors are not hierarchical, and the court must balance them in accordance with the overriding objective.

At an interlocutory stage, the court should not determine technical disputes which depend on expert evidence or usurp the trial judge’s function. It is sufficient that the proposed case is realistically arguable and can be addressed without material prejudice. Where the balance favours reconsideration, permission to withdraw the admission and amend the pleading should be granted.

The claimant brought proceedings concerning allegedly defective external cladding on residential blocks. The defendants had admitted that replacement, rather than repair, was the appropriate remedial solution, partly because the estimated costs were then similar.

After the claimant’s estimated replacement costs increased substantially, the defendants sought permission to withdraw the admission and amend their defence to plead that a repair scheme remained appropriate. The claimant opposed the application, arguing that the repair case was hopeless, insufficiently particularised and prejudicial. The central issue was whether the defendants should be permitted to withdraw the admission before trial.

1. Applicable principles. Paragraph 7 of Practice Direction 14 to CPR 14.1 confers a wide discretion. The court must consider all the circumstances, including the reasons for withdrawal, the parties’ conduct, prejudice, the stage of the application, the prospects of success and the administration of justice. The factors are not hierarchical. Each must receive due weight, and the court must strike a balance in accordance with the overriding objective.
2. Interlocutory assessment. The court must avoid determining technical issues which depend on opposing expert evidence or usurping the function of the trial judge. The proposed repair case was not so weak that it could be rejected at this stage. The defendants’ expert evidence provided an arguable basis that the proposed repairs could achieve a fire-safety performance equivalent to a different cladding system and comply with the relevant building regulation.
3. Prejudice and preparation. The repair scheme was sufficiently detailed for the claimant to assess its feasibility, cost and regulatory implications. The issue had previously been considered by the experts, and the forthcoming trial was not imperilled by the amendment. Questions concerning compliance, cost, buildability, contractor availability and building-control approval were matters for evidence and submissions at trial.
4. Nature of the admission. The admission concerned the reasonable remedial course in the circumstances and costings then available. It did not admit that retaining the original cladding necessarily breached building regulations.
5. Disposition. The defendants faced substantial prejudice if prevented from advancing a realistically arguable repair case, whereas the claimant could address it before trial. Permission to withdraw the admission was therefore granted, and permission to amend the defence was granted, subject to drafting points.