Arboleda-Quiceno v Newham London Borough Council

Permission to withdraw a pre-action admission must be determined by a global balancing of all the circumstances identified in CPR PD 14.7.2. The court should assess the merits of the proposed defence, but an interlocutory application is not ordinarily an occasion for a detailed paper trial on disputed witness evidence. A real, rather than fanciful, prospect of success may be sufficient where the evidence requires testing at trial. More detailed analysis may be appropriate where the new evidence is documentary or consists of CCTV footage. The court must also weigh prejudice, the stage of proceedings and the administration of justice. Admissions should generally be maintained, but finality is not absolute where refusing withdrawal would deprive a party of a fair opportunity to defend a substantial claim.

The claimant brought a personal injury claim against the defendant local authority after injuring his knee while playing five-a-side football at recreation grounds managed by the defendant. The defendant admitted negligence and/or breach of statutory duty in pre-action correspondence, while admitting neither injury nor loss.

After proceedings were issued and a claim exceeding £2.9 million was advanced, the defendant sought permission to withdraw the admission. It relied on evidence that the claimant had played on a different pitch from the one containing a hole and alleged fundamental dishonesty. The Deputy Master refused permission under CPR PD 14.7.2. The defendant appealed, alleging errors in the assessment of the claim’s character and the merits of the proposed defence.

1. Appeal allowed. The Deputy Master had erred in assessing the merits of the proposed defence by conducting a detailed evaluation of disputed witness evidence on the papers. That assessment deprived the court of the benefit of hearing the witnesses and was effectively a trial on the papers.
2. Under CPR PD 14.7.2(f), the merits of the claim or part of the claim affected by the admission are a relevant factor. The court is not invariably confined to asking whether the proposed defence has a real prospect of success. A fuller examination may be appropriate where the new evidence is documentary or consists of CCTV footage. However, disputed witness evidence containing no glaring or gross inconsistencies should ordinarily be tested at trial rather than resolved conclusively at an interlocutory hearing.
3. The claim had not changed so radically in size or character that this factor justified refusing withdrawal. The letter of claim identified a serious knee injury, continuing treatment and further investigations, without stating a prognosis. The later value of the claim did not make it a fundamentally different claim. The approach in Wood v Days Healthcare UK Ltd [2017] EWCA 2097 was materially distinguishable on its facts.
4. On reconsidering the application, the evidence gave the proposed defence more than a fanciful prospect of success. The claimant was not shown to suffer irremediable prejudice from withdrawal, whereas refusing withdrawal would deprive the defendant of a liability defence to a very substantial claim. The defendant’s undertaking also removed the reasonable-maintenance defence.
5. Applying a global, stand-back assessment of the CPR PD 14.7.2 factors, the administration of justice favoured permitting the liability issues to proceed to trial. The reasoning in Woodland (by her father and litigation friend Ian Woodland) v Stopford & Ors [2011] EWCA (Civ) 266 supported that conclusion.
6. The defendant was granted leave to withdraw its pre-action admission. Any dispute about the scope or meaning of its undertaking was left for Andrew Baker J to determine.

• High Court (Queen’s Bench Division): Appeal from the Deputy Master’s order dated 14 January 2019 allowed. The defendant was given permission to withdraw its pre-action admission.