Sabbagh v Khoury & Ors

An admission under CPR Part 14 is not confined to a constituent element of a cause of action, a matter capable of determining judgment, or an assertion in a pleading. A written concession that a transaction is valid and effective may therefore be an admission requiring permission to withdraw.

Permission to withdraw depends on all the circumstances, particularly the real risk of prejudice to each side. Where withdrawal would not have altered the earlier jurisdiction decision and refusal would prevent the claimant advancing her case, permission should be granted.

A foreign defendant submitting to jurisdiction on a qualified basis may resist new claims introduced by amendment. A claimant cannot use a Reply to introduce an alternative cause of action or evade jurisdictional scrutiny.

The claimant brought claims concerning the alleged misappropriation of assets and shares belonging to her late father. During earlier jurisdiction proceedings, she conceded in written submissions that the 1993 share sale agreements were existent, valid and effective. The Court of Appeal subsequently established jurisdiction over the claims.

After amending her Particulars of Claim, the claimant sought to withdraw the concession in her Replies and pleaded matters which the defendants said amounted to an alternative claim based on non-intentional wrongdoing. The claimant applied for declarations and permission to withdraw the concession. The defendants applied under CPR r.3.4 to strike out the relevant parts of the Replies.

The issues were whether the concession was an admission under CPR Part 14, whether withdrawal should be permitted, and whether the Replies improperly introduced a new cause of action.

1. Qualified submission to jurisdiction. Foreign defendants may qualify an acknowledgment of service and submit to the English jurisdiction on a claim-by-claim basis. Where the submission is qualified, a claimant seeking to introduce an additional claim by amendment must satisfy the jurisdictional requirements. The same result cannot be achieved by pleading the new claim in a Reply, for which permission is not required. Such conduct may be an abuse of process attracting strike out under CPR r.3.4(2)(b) (paras [15]-[16]).
2. Meaning of admission. CPR r.14.1(1) applies where a party admits the truth of the whole or any part of another party’s case by notice in writing. The provision is not limited to admissions which entitle the other party to judgment, distinct ingredients of a cause of action, or matters set out in pleadings. A written submission may constitute notice in writing. The claimant’s concession concerning the 1993 agreements was an admission, not merely a non-denial (paras [35]-[49]).
3. Withdrawal of the 1993 concession. Permission was required under CPR r.14.1(5). Applying the factors in Practice Direction 14 and the principles in BT Pension Scheme Trustees Ltd v British Telecommunications plc, the decisive considerations were prejudice if withdrawal were allowed and prejudice if it were refused. The defendants suffered no material prejudice: the claimant was not a party to the relevant arbitration agreements, the jurisdiction outcome would have been unchanged, and the concession had no material effect on the succession issue. The claimant would otherwise be unable to deploy her whole case. Permission was granted (paras [50]-[60]).
4. The 1995 and 1998 agreements. Although the claimant had been party to those agreements, the defendants produced no evidence that they had altered their jurisdiction strategy or abandoned arbitration in reliance on the wider oral concession. The challenge to withdrawal therefore failed in relation to those agreements also (paras [61]-[71]).
5. Alternative non-intentional case. If the claimant intended to advance an alternative cause of action based on imprudence or carelessness rather than intentional wrongdoing, it had to be pleaded by amendment to the Claim Form or Particulars of Claim. The challenged parts of the Replies created confusion and failed to set the proper agenda for trial. The Replies were to be amended to reflect the case actually advanced, or the offending material was to be struck out (paras [72]-[74]).

The judgment records earlier jurisdiction decisions in the same litigation, but this was a first-instance decision on the applications concerning withdrawal of the concession and the Replies.