June Dorothy Marshall & Anor v Dean Kimberley Marshall & Anor

A pre-action admission is assessed by examining the correspondence as a whole and the circumstances in which the statement was made. The party who first raised an issue does not obtain a “first mover” advantage preventing the other party from subsequently admitting it. A clear admission in a formal pre-action protocol response is subject to the same withdrawal control as an admission in a defence.

Permission to withdraw under CPR 14.5 requires consideration of all the circumstances. The listed factors have no fixed hierarchy. Particular weight may be given to the absence of a full and frank explanation, substantial delay, conduct during negotiations, and the administration of justice. The court should not conduct a mini-trial when assessing prospects of success.

The claimants sought judgment on an alleged pre-action admission under CPR 14.4 and consequential strike-out relief. The defendants denied making an admission and, alternatively, sought permission to withdraw it under CPR 14.5.

The dispute concerned whether the death of a partner had dissolved the Country Market Partnership. In a formal response to the claimants’ letter before action, the defendants stated that there was no dispute that the Partnership had to be wound up and its business sold. They later asserted that the Partnership remained ongoing. The issues were whether the response contained an admission and, if so, whether withdrawal should be permitted.

1. Admission. The defendants’ formal response contained a pre-action admission that the Partnership had come to an end on Peter Marshall’s death. The question was not determined by which party first put dissolution in play. The correspondence had to be read as a whole, together with the surrounding facts and circumstances.
2. The letter before action was a formal pre-action protocol communication which clearly set out that the Partnership had ended on Peter’s death and that the business was to be wound up. The defendants’ response, prepared after legal advice, stated that there was no dispute that the Partnership must be wound up. Read consecutively with the letter before action, that was sufficiently clear and certain for CPR 14. An admission in such a response is not treated differently from an admission in a defence for the purposes of withdrawal after proceedings have begun.
3. Withdrawal. The discretion under CPR 14.5 required consideration of all the listed circumstances, without any predetermined hierarchy. The court applied the guidance in Woodland v Stopford & Others [2011] EWCA Civ 266, including the need to give each factor due weight and to balance them against the overriding objective.
4. The defendants had not provided a full and frank explanation of how the admission was made or why it should be withdrawn. There was no new evidence. Their change of position was delayed for years, was initially expressed only in without-prejudice correspondence, and was not promptly formalised. The admission had been made after consideration and legal advice, and the subsequent provision of an opinion stating that the Partnership was dissolved was not qualified or explained.
5. The court did not conduct a mini-trial on prospects of success. Both sides’ positions were arguable, making that factor neutral. Although prejudice to the defendants favoured withdrawal, the defendants’ grounds, conduct and the interests of the administration of justice carried substantial weight. Permission to withdraw was refused. The claimants’ application for judgment on the admission succeeded, with consequential matters to be dealt with in the order.

First-instance decision. No prior appellate decision is stated in the judgment.