Woodland v Stopford & Ors [2011] EWCA Civ 266

Case No A2/2010/1625[2011] EWCA Civ 266
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE HOLMAN
(Sitting as a Judge of the High Court)
9MA91650
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 16 March 2011
Before
LORD JUSTICE WARDLADY JUSTICE ARDENLORD JUSTICE MOORE-BICK
Between
Annie Rachel WoodlandAppellant(1) Beryl StopfordRespondents(2) Deborah MaxwellRespondent(3) The Swimming Teachers AssociationRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Ian Little (instructed by Pannone LLP) for appellantMrs Wendy Outhwaite QC (instructed by Fishburns Solicitors) for respondentHearing Hearing date: 24th February 2011
Judgment

Introduction

[1]This case concerns the withdrawal of an admission of liability in a claim brought by Annie Woodland by her litigation friend, her father, for damages arising out of the tragic accident which befell her on 5th July 2000. His Honour Judge Holman, sitting in the Manchester District Registry ordered that the defendant, the Swimming Teachers Association, have permission to withdraw its admission of liability. Annie appeals with permission granted by Pitchford LJ.[2]It is a very sad case indeed. Annie was 10 years old at the time. Her school, the Whitmore Junior School, had arranged with Direct Swimming Services, which we now know was the name under which Mrs Beryl Stopford traded, to provide swimming lessons at the Gloucester Park Swimming Pool managed by the Basildon District Council. Mrs Stopford was not present when the lessons took place. She engaged Paula Burlinson and Deborah Maxwell to conduct the lesson on her behalf, Ms Burlinson acting as the instructor on the day and Ms Maxwell as the lifeguard. There is now a hot dispute as to whether or not these two ladies were employees of Mrs Stopford or whether they were independent contractors. School teachers were also present. So were the Council’s staff at the swimming pool.[3]The class was divided into groups reflecting their swimming ability. Annie was one of the better swimmers and with others in that group was swimming probably her first length of the pool when she got into difficulty. Precisely what happened is not clear at this stage. It is sufficient for the purpose of this judgment simply to record that she was seen to be in distress by fellow pupils, was vertical in but submerged under the water and was eventually pulled to the side of the pool. By the time she was laid out on the side of the pool, she had ceased to breathe and attempts, probably more than one, were made to resuscitate her. Tragically she had suffered an hypoxic brain injury which has left her with severe learning disabilities, an inability to live independently and a substantial handicap in the labour market. Her claim for damages is thought to exceed £2 million and may now be close to £3 million.

The events leading to the admission of liability

[4]By early in 2001, Mr Woodland had instructed a firm of solicitors, Beviss and Beckinsale (B&B) in Honiton, Devon, to pursue a claim for damages for these catastrophic personal injuries. B&B wrote a letter of claim to Basildon D.C. and on 10th March 2001 the Council’s insurers, Royal and Sun Alliance, replied firmly denying that any member of their staff was responsible and stating that the claim should be redirected to Mrs Stopford. B&B therefore sent a letter of claim to her on 22nd March 2001 alleging that there was no adequate level of supervision for the swimming lesson. The important point about this letter is that it was expressly said to be “written pursuant to the Personal Injury Accident Pre-Action Protocol”. Crawford & Co responded on 16th May 2001 in these terms:
“Dear Sirs, Our Principals : ASSITALIA/SWIMMING TEACHERS ASSOCIATION Your Client : Miss A.R. Woodland Incident : 5th July 2000 We confirm our involvement as claim handlers on behalf of our principals Assitalia and have been passed your correspondence of 22nd March 2001 to Mrs B. Stopford. …”
Our Principals : ASSITALIA/SWIMMING TEACHERS ASSOCIATION Your Client : Miss A.R. Woodland

Incident : 5th July 2000

[5]There has been some chaos and confusion about the role of and relationship between the various parties identified in that letter but, as we teased it out during the hearing, the position now seems to be tolerably clear. Mrs Stopford must be a member of a professional association, the Swimming Teachers Association (“STA”). STA has block insurance cover with Assitalia, now part of the Assicurazione Generali SpA Group, for the benefit of its Insured who include not only Mrs Stopford but also Ms Maxwell, though not Ms Burlinson. So we assume that Mrs Stopford passed the letter of 22nd March to STA who referred it to Assitalia who in turned asked Crawford & Co to handle the claim on its members behalf.[6]On 20th November 2001 Crawford & Co wrote to B&B stating that they had completed their inquiries into liability and confirming that they did not accept that any liability attached to “our clients”, the correspondence still being headed in the same way as the earlier letter. It is apparent that inquiries had indeed been made. The letter continued:
“Ms Burlinson and Ms Maxwell will say that your client was in the pool for no more than 15 seconds before she was discovered. We enclose the Health and Safety report dated 11th May 2001 which outlines the matter and confirms the procedures that should be in place, which of course were at the time, and does not recommend any amendments. We will argue that there was adequate supervision at the time of the event, and that a lifeguard(s) and not a pupil pulled your client from the pool. Your allegations are denied and we do not believe any further supervision at the time would have prevented the accident, or resulted in your client being rescued any sooner. We enclose statements and H.S.E. report in support of our repudiation and await confirmation that your client’s claim has been withdrawn.”
[7]The Health and Safety Executive report dated 11th May 2001 addressed to Mrs Stopford is a cursory document suggesting that the medical information the author had been given indicated that Annie was rescued promptly and, perhaps surprisingly, that she had made a full physical recovery. The report did, however, make a number of suggestions for the future arrangements for group swimming lessons.[8]This report was profoundly unsatisfactory for Annie’s parents and Mr Woodland appears to have taken or instigated the taking of a number of statements, including some from Annie’s fellow pupils. At his urging the H.S.E. carried out a further investigation which commissioned Linda Bishop Bailey of the Institute of Sport and Recreation Management to provide a report which she did in April 2002. It is a 24 page report drawing upon statements taken by H.S.E. as well as contemporary reports from Ms Maxwell, Ms Burlinson, school teachers, school children and members of staff at the pool. The statements written at the request of Annie’s father were also available to Ms Bailey. She summarised the varying accounts of the incident. Her conclusion was:
“12.1 Although it appears that there were two sets of contradictory reports – from the point of view of the children and from that of the staff – in fact there are only two statements which are out of sync with the others. These are the statements of Kayleigh Teeboon [a fellow pupil] and [the name is redacted]. 12.2 I have no doubt that Ashleigh [another schoolgirl] was instrumental in spotting Annie in difficulty and in bringing her to the side with the help of her friend Kayleigh. They probably saved her life. 12.3 Annie should have been spotted by the lifeguard or the swimming instructor for the group when she first got into difficulties and certainly when Ashleigh and Kayleigh went to her assistance. 12.4 The lifeguard and the instructor were distracted from or not applying proper attention to their duties. The instructor was probably distracted by her teaching role and the main failure was that of the person specifically on the pool side to lifeguard the children [a reference to Mrs Debbie Maxwell].”
[9]I pick up the story by reciting from the judgment of

Judge Holman:

“It was not until 29th January 2003 that Annette Hall [the H.S.E.’s Principal Inspector] wrote to Mrs Stopford with her conclusions. In the letter she stated she had interviewed four children and had sought expert opinion from the I.S.R.M. [the Institute of Sport and Recreation Management] and also an occupational health and safety physician who specialised in aquatic health and safety. She reported that the physician considered it likely that the Claimant had inhaled a large quantity of water causing her to suffer hypoxia, which resulted in unconsciousness. The letter continued that both experts were clear that there was a delay in spotting the claimant and that it was likely she was in trouble for one to one and a half minutes before rescue was undertaken and resuscitation started. She opined that the life guarding systems that should have been in place “to some extent”
. The lifeguard was, of course, Ms Maxwell. Annette Hall advised that “after careful consideration” of the evidence “coupled with the time taken since the original investigation” she had decided not to take any action against the individual involved. She indicated that she would be writing to the parents, to Basildon DC and to Essex County Council with her conclusions. Whether the parents reported to B&B I do not know. If they did, I also do not know whether there is any evidence of this in the B&B file. Mr Little’s skeleton argument [for the claimant] contains an assertion that a copy of the LBB report was forwarded to the Claimant’s parents in July 2005, but I do not know the evidential basis for this.”[10]It is a deeply depressing feature of this case that we do not know what was happening to this claim as years of seeming inactivity then passed. All we know is that it was not until May 2007 that the claim was resurrected, 5 ½ long years since Crawfords had denied liability and over four years after the H.S.E. had completed its second investigation. On 1st May 2007 B&B wrote to Crawford & Co reminding them of previous correspondence under the above reference (which is as I have previously set out) dating back to 2001 and 2002. B&B wrote:
“We have now obtained from the Health and Safety Executive a copy of the report of Ms L.B. Bailey of I.S.R.M. Consultants dated April 2002, a copy of which we enclose for your use. As you will see, the expert opinion of Ms Bailey is extremely critical of your Principals insured, Direct Swimming Services, and in the light of the contents of Ms Bailey’s Expert Opinion we invite you to reconsider your stance and to accept liability. One matter which needs to be clarified in any event is the legal status of Direct Swimming Services. It is our understanding, on the basis of information provided by Essex County Council, that Direct Swimming Services is, and was at the time of the incident on 5th July 2000, a firm (as opposed to a Limited Company), the sole principal of which was Ms B. Stopford, and that your Principals Assitalia, are the insurers of Ms Stopford. Please confirm that this is indeed the case.”
[11]I am not sure of the response but be that as it may, the next event is the crucial one. On 27th November 2007 Natalie Smart, the Client Team Manger at Crawford & Co wrote to B&B in these terms:
“Dear Sirs, Our Principals : Assitalia Your Client : Miss A.R. Woodland Incident : 5th July 2000 We refer to your recent correspondence. As per our recent telephone discussion, we can confirm that liability will be conceded for this claim in full. There are no allegations of contributory negligence. …”
Crawford & Co sought copies of the medical reports, school reports and a schedule of special damages. We are told that on 17th December 2007 Crawford & Co confirmed in a letter to B&B that their client’s full name and address was The Swimming Teachers Association Ltd. Our Principals : Assitalia Your Client : Miss A.R. Woodland

Incident : 5th July 2000

[12]Conduct of the claimant’s case then passed to Pannone LLP some time early in 2008. We were informed by Mr Little that they had great difficulty in obtaining the file from B&B and that when they did receive papers they were incomplete. In their dealings with Crawford & Co, they indicated they were undertaking investigations into quantum, in particular in respect of neurological and care reports. They sought an interim payment on more than one occasion of £5,000.[13]In November 2008 Fishburns Solicitors took over the conduct of the defendant’s case, informing Pannone that they had been instructed by Assitalia/Generali to represent the interests of their insured, the Swimming Teachers Association. They noted that there was a request for an interim payment, liability having been previously admitted. On 18th November 2008 Fishburns asked for a complete copy of the report written by Ms Bailey in April 2003, their copy being incomplete, and they also asked for various witness statements referred to therein. Pannone’s queried why that information was necessary given that liability had been agreed. On 5th December 2008 Fishburns replied that they did, of course, understand that liability had been admitted by the loss adjustors but wished for further information “simply to complete our investigation of the case in its entirety”. They said:
“We are sure that you will understand that having taken this case over, it is preferable to have a complete understanding of the entirety of events and not simply those relating to quantum. We are not seeking to go behind the admission of liability, merely to understand the entire case.”
Pannone in reply saw no reason to incur additional costs providing liability evidence when the same had been admitted.[14]The correspondence dribbled on, mainly about issues of quantum and interim payment. On 10th March 2009 Fishburns sent a cheque for £5,000 as an interim payment. In March Pannone enquired about the insurance cover and about Direct Swimming Services. Fishburns told them Assitalia insured the Swimming Teachers Association, not Direct Swimming Services, but they were not particularly forthcoming about insurance-related information and that generated further correspondence. On 16th July 2009 Pannone put Fishburns on notice that they required a further interim payment of £100,000 and asked whether Fishburns had authority to accept service of the proceedings.[15]Then came the bombshell which precipitated the dispute which is now before us. On 27th July 2009 Fishburns wrote as follows:
“A concession of liability regarding this matter was provided, on behalf of the Swimming Teachers Association Ltd, by a letter from Messrs Crawfords dated 27th November 2007. The Swimming Teachers Association Ltd hereby now forthwith, and with immediate effect, retracts in full that concession/admission and any other statements or acts that could in any way be construed as any form of admission/concession of liability or responsibility and/or any waiver of rights to alleged contributory negligence and/or to seek a contribution and/or indemnity from any third party. All liability thus now remains in issue and of all the rights of the Swimming Teachers Association Ltd regarding all of the above and this matter generally are thus (and remain) fully reserved.”
That seems a fairly comprehensive retraction. Just to make assurance doubly sure they wrote later that day stating that the withdrawal also applied to Assistalia/Generali as well as the Swimming Teachers Association Ltd. For present purposes it is accepted that inasmuch as the admission bound Mrs Stopford, the withdrawal should be treated as having been made on her behalf also.[16]Not surprisingly Pannone did not accept that retraction of the admission of liability and gave notice that proceedings would be issued. They complained:
“This incident occurred nine years ago. Your letter gives no reasons or grounds for the withdrawal of the admission and this not satisfactory given that the admission on liability was given by Crawford & Co on 27th November 2007. Your firm has been dealing with this matter since November 2008. At no time previously have you indicated that liability was in issue.”
They received no more adequate explanation.[17]On 25th November 2009 a claim was issued by Annie Woodland by her litigation friend, Mr Woodland. For some reason or another the defendant named in the claim was the Swimming Teachers Association. Mr Ian Little settled the particulars of claim and he more accurately named Beryl Stopford as the defendant, who, or whose servants or agents, failed properly to take care and to supervise the claimant or promptly to notice and to heed that the claimant was in difficulty and to intervene so as to ensure that she did not sustain injury. The admission of liability was pleaded.[18]In due time a flurry of applications were issued. The claimant sought permission to amend the claim and particulars of claim properly to join Beryl Stopford and also to add Deborah Maxwell as a defendant, expressly alleging that Ms Maxwell was employed by Mrs Stopford as a swimming teacher/lifeguard. The Swimming Teachers Association remained a defendant, the unusual claim against it being that since Mrs Stopford and Ms Maxwell were members and “had the benefit of indemnity provided by the [S.T.A] organisation” the Association was liable to indemnify them in respect of their negligence. The claimant also applied for judgment to be entered in her favour pursuant to C.P.R. 14.1A(4)(a).[19]The defendants’ riposte was to apply for an order that permission be given to the defendant (then only the STA) to withdraw the admission of liability made on 27th November 2010 pursuant to r.14.1A(5) of the CPR.[20]These applications were listed before Judge Holman along with other directions to be given at the case management conference. We are told by counsel that, and we applaud the fact that, this Judge of vast experience took the eminently sensible, pragmatic course of dealing with the main issue, the withdrawal of the admission of liability, on the basis that the amendments should be treated as if they had been made and that Mrs Stopford and indeed Ms Maxwell were proper parties to the proceedings. Having heard argument on 26th April 2010 he handed down a thorough and carefully considered judgment on 10th May 2010.

The judgment under appeal

[21]The Judge set out the legal framework and I gratefully adopt it. He said:
“23. In Sowerby v Charlton [2005] EWCA Civ 1610, [2006] 1 WLR 586 the Court of Appeal held that Part 14 of the Civil Procedure Rules (CPR), which deals with admissions, was not intended to apply to pre-action admission. This approach was confirmed in Stoke on Trent CC v Whalley [2006] EWCA Civ 1137. In consequence, the CPR were amended with regard to pre-action admissions made after 6th April 2007 by the insertion of CPR 14.1A. This provides: “(1) A person may, by giving notice in writing, admit the truth of the whole or any part of another party's case before commencement of proceedings (a ‘pre-action admission’). (2) Paragraphs (3) to (5) of this rule apply to a pre-action admission made in the types of proceedings listed at paragraph 1.1(2) of the Practice Direction to this Part if one of the following conditions is met – (a) it is made after the party making it has received a letter before claim in accordance with the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; or (b) it is made before such letter before claim has been received, but it is stated to be made under Part 14. (3) A person may, by giving notice in writing, withdraw a pre-action admission – (a) before commencement of proceedings, if the person to whom the admission was made agrees; (b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court. (4) After commencement of proceedings – (a) any party may apply for judgment on the pre-action admission; and (b) the party who made the pre-action admission may apply to withdraw it. (5) An application to withdraw a pre-action admission or to enter judgment on such an admission – (a) must be made in accordance with Part 23; (b) may be made as a cross-application.” 24. This provision is supplemented by paragraph 7.2 of Part 14 Practice Direction, which reads: “7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including – (a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and (g) the interests of the administration of justice.” 25. In addition, the court has also to have regard to the overriding objective as set out in CPR 1.1. The concept of dealing with the case justly involves considerations of equality of arms, expense, proportionality, expedition and fairness, and allocation of court resources.”
The Judge directed himself impeccably. “(1) A person may, by giving notice in writing, admit the truth of the whole or any part of another party's case before commencement of proceedings (a ‘pre-action admission’). (2) Paragraphs (3) to (5) of this rule apply to a pre-action admission made in the types of proceedings listed at paragraph 1.1(2) of the Practice Direction to this Part if one of the following conditions is met – (a) it is made after the party making it has received a letter before claim in accordance with the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; or (b) it is made before such letter before claim has been received, but it is stated to be made under Part 14. (3) A person may, by giving notice in writing, withdraw a pre-action admission – (a) before commencement of proceedings, if the person to whom the admission was made agrees; (b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court. (4) After commencement of proceedings – (a) any party may apply for judgment on the pre-action admission; and (b) the party who made the pre-action admission may apply to withdraw it. (5) An application to withdraw a pre-action admission or to enter judgment on such an admission – (a) must be made in accordance with Part 23; (b) may be made as a cross-application.” “7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including – (a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made; (b) the conduct of the parties, including any conduct which led the party making the admission to do so; (c) the prejudice that may be caused to any person if the admission is withdrawn; (d) the prejudice that may be caused to any person if the application is refused; (e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial; (f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and (g) the interests of the administration of justice.”[22]He then proceeded to apply that legal framework to the facts of this case and in summary made these findings:(1) he correctly observed that he had to consider all the circumstances but was specifically directed to consider the seven factors set out above. He was critical of the fact that each side had some documents relating to the matter which the others had not seen but he correctly ruled that he could only deal with the matter on the material put before him.(2) I set out his ruling in full:
“Specific reference is made to whether new evidence has come to light. It is easy to see why: the emergence of fresh evidence is likely to be a highly relevant factor. It does not follow that a court cannot permit a party to withdraw an omission where no new evidence has come to light. The application is not made on the basis of new evidence. It is prompted by a careful re-appraisal of what is known.” (3) As to whether CPR 14.1A(2) was met, he decided that on a proper construction of the correspondence the admission was made on behalf of Mrs Stopford. He could not understand why STA was a defendant but he took account of the amendments that were to be made to add Mrs Stopford and Ms Maxwell. The admission could only embrace Ms Maxwell if Mrs Stopford was vicariously liable for her acts and omissions but it was only in the amended particulars of claim that it was alleged that Ms Maxwell was employed by Mrs Stopford. (4) Turning to conduct, he observed that why Crawfords had changed their minds having already conducted an investigation leading to a denial of liability was unclear, but a possible clue may have lain in the very modest reserve they suggested. He did take into account that for some months Fishburns had corresponded with Pannone on damages’ aspects, including making a payment into court and had then withdrawn the admission out of the blue having previously assured Pannone that they were not seeking to go behind it. On the other hand, the refusal by Pannone to supply documents was held to be “unhelpful”. (5) Dealing with prejudice to the claimant, he took account of the passage of time and the problems of recalling events after 10 years, although he accepted the defendant’s point that delay up to May 2007 was not the fault of the defendant and recollections would already have been seriously impaired by then. There was ample time to investigate the position of Ms Burlinson and to join her before the limitation period expired. He was told that H.S.E. had destroyed its file and that was “an important feature” which he had to take into account, but it was not possible to measure the full extent of the prejudice without knowing precisely what documents Pannone had in its possession. The witnesses had been identified in the report by Ms Bailey and Mrs Stopford and Ms Maxwell were certainly still available. (6) The prejudice to the defendant was the deprivation of their opportunity to defend the claim on the merits, paying their policy excess as well as the damage to the professional reputation of those involved. Satellite litigation against Crawfords was not to be encouraged. (7) He considered that it was not a late application given the early stage the proceedings had reached. (8) He recognised he could not conduct some form of mini-trial into the prospects of success but it was not difficult to discern that the central bone of contention was that Ms Maxwell and Ms Burlinson should have appreciated earlier than they did that Annie was in difficulty and should have embarked sooner on rescuing her. The original conclusion by H.S.E. was that she had been rescued promptly. There were concerns about the report of Ms Bailey because she did not speak to people involved in the incident and “the dangers of attempting in this sort of incident to form an opinion based only on paperwork are manifest”
. She appreciated there was “a not insignificant body of other evidence which she considered might be of assistance” but she took no steps to obtain it. Caution had to be applied to statements from school children taken at the request of Mr Woodland for there was an obvious risk of contamination of their evidence. As the report indicated, there were many contradictions in the statements. He concluded:
“Against that background, for LBB [Miss Bailey] to reach the conclusion based on the material in her possession that Ms Maxwell and Ms Burlinson were at fault is open to serious challenge. It is also of note that there are no criticisms directed at Mrs Stopford.”
He also correctly observed that medical issues would arise and causation might be an issue. Finally he observed that whether Mrs Stopford was vicariously liable for the acts or omissions of Ms Maxwell or Ms Burlinson was not obvious. Thus he concluded:
“… it is far from a foregone conclusion that there is no viable defence to the claim. It cannot even be said that there is probably no viable defence.” (9) Finally, he considered the interests of the administration of justice. He took account of the importance of admissions in the structure of civil litigation, the stress placed on the parents when “the bombshell of retraction was first dropped some 21 months later and without explanation”
. He acknowledged that the parents were perfectly entitled to express the view that it would be unjust to reopen the matter. However, justice cut both ways and it was not in the interests of the administration of justice to impose on the other party a state of affairs where there is good evidence that this might result in an injustice. Nor it is in the public interest to engender satellite litigation. He recognised that to permit the defendant to resile would result in expense and delay and a further inroad on the precious court resources. He took account of the overriding objective. Last but certainly not least the value of the claim was relevant and being in excess of £2 million, anxious scrutiny needed to be given to the risk of injustice of saddling a defendant with such a liability. He also thought it would be highly artificial and unjust for the court to be required to investigate the merits to determine the claim against Ms Maxwell, who was not bound by the admission, but to deny that opportunity to Mrs Stopford.[23]He ended his judgment in this way:
“51. I have a balancing exercise to perform, and I express my thanks to counsel for the helpful way in which they deployed the arguments. There are factors in favour of both sides. Looking at the circumstances, in my view the interests of justice lead me to conclude that the balance, albeit by no great margin, comes down in favour of the defendant.”

Discussion

[24]Mr Ian Little confined the main burden of his attack on the Judge’s judgment to his failure to give proper weight to the fact that no new evidence prompted the withdrawal of the admission which was only made after a re-appraisal of the facts of the case. There was no proper explanation for this change of mind. He did not pursue the wider written grounds of appeal which doubted the strength of the case that Ms Maxwell was an independent contractor and which challenged the Judge’s assessment of the prospects of success.[25]Mr Little relied heavily on the judgment of Steel J. in American Reliable Insurance Company v Willis Ltd [2008] EWHC 2677 (Com) for his central submission that the lack of new evidence and the failure to explain the change of mind were crucial factors to weigh in the balance. In that case Steel J. said this:
“16. There is, it seems to me, a serious threshold difficulty with regard to this application. Although it is only one of the circumstances which the court must have regard to in considering whether to give permission for a party to withdraw an admission, it nonetheless seems to me to be an important one. It is the first one in the list, namely: “the grounds upon which the applicant seeks to withdraw the admission, including whether or not new evidence has come to light which was not available at the time the admission was made”. 17. There is … no new evidence whatsoever. What is entirely absent, it seems to me, is any real explanation of the reasons why and justification for the application. … 18. This, it seems to me, is, as I put it, a formidable threshold difficulty. Where a party makes an application of this kind in circumstances where highly important and, it must be accepted, prejudicial admissions are made, the court is entitled, it seems to me, to receive a fairly full and frank explanation of how things have gone wrong, or at least appear to have gone wrong, namely to identify the basis upon which the background to the admission is to be withdrawn, the reasons for it, how it came about that the admission was made in the first place, and so on.”
[26]That was a very unusual case in very unusual litigation well known in the Commercial Court. There the defendant sought to withdraw admissions in their original defence which had been made because it was thought not to be realistic to challenge certain findings and conclusions of Thomas J. made in previous litigation as to the honesty of a witness and the honesty of the underwriting of the business. One can see immediately why those factors were important in that case and that they may well have presented “a formidable threshold difficulty” for the defendant. That is not to say that they will always assume that significance in every case. As Steel J. himself later observed, the explanation of the background is only one of the criteria he had to consider, along with all the circumstances of the case. In my judgment it would be quite wrong to lift his observations out of the context of that case and elevate them into a threshold test which all applications to withdraw admissions must cross to ensure success. It is quite clear to me that CPR 14.1A(3) confers a wide discretion on the court to allow the withdrawal of a pre-action admission and paragraph 7.2 of Part 14 of the Practice Direction lists the specific factors the court must take into account in addition to the need to have regard to all the circumstances of the case. These factors are not listed in any hierarchical sense nor is it to be implied in the Practice Direction that any one factor has greater weight than another. A judge dealing with a case like this must have regard to each and every one of them, give each and every one of them due weight, take account of all the circumstances of the case and, balancing the weight given to those matters, strike the balance with a view to achieving the overriding objective. Cases will vary infinitely and the weight to be given to the relevant factors will inevitably vary from case to case. Sometimes the lack of new evidence and the lack of explanation may be the important considerations; in others prejudice to one side or the other will provide a clear answer and in all the interests of justice will sway the balance. It would be wrong for this court to circumscribe the manner of the exercise of this discretion or to give any more guidance than is trite, namely, carry out the task set by the Practice Direction, weigh each of the identified factors as well as all the other circumstances of the case and strike a balance with due regard to the overriding objective.[27]As to Mr Little’s first complaint that there was no new evidence to justify the change of mind, Judge Holman had that well in mind as a factor to weigh in the scales in favour of the claimant but he correctly directed himself, to repeat it, that “It does not follow that the court cannot permit a party to withdraw an admission where no new evidence has come to light.” That is perfectly proper approach to take.[28]Then Mr Little complains of the conduct of the defendant and its (or her) failure to provide any satisfactory explanation for the change of stance. Judge Holman characterised it as having been prompted by a careful re-appraisal of what was known following the disclosure of the second H.S.E. report. He accepted that there was no clear indication of why Crawford & Co changed its mind, having already made an investigation leading to a denial of liability. He speculated about their assessment of the value of the claim. He took account, against the defendant, of the interim payment and their going behind the assurance that they were not seeking to withdraw the admission. Once again the Judge has had full cognisance of the strength of the claimant’s case with regard to this factor. In fact Ms Tracy Sell-Peters, the solicitor having conduct of this case on the defendants’ behalf, did give an explanation for the re-appraisal, namely, “the STA believes that there was insufficient investigation of the facts” and in particular blamed Crawfords for failing to obtain detailed witness statements from the principal individuals involved, failing to obtain copies of the expert evidence and witness statements considered in the second H.S.E. report, failing to question why Ms Bailey resolved all of the factual discrepancies in favour of the ten year old children rather than those of the lifeguards and swimming teachers who were present, failed to question the involvement of the claimant’s father in garnering further evidence and failing to obtain independent expert evidence on the complicated issues of breach of duty and causation. It is those failures which led to the Judge’s concerns about satellite litigation. As Ms Sell-Peters acknowledged, “This is not a case where new evidence has prompted a change of position, but one where a party, on behalf of whom an admission has been made, has sought to withdraw that admission almost at the very instant it realises that those acting on its behalf had acted in error.”[29]Mr Little highlights those factors which support the claimant but the Judge also had to bear prejudice in mind, which he analysed fairly, the stage in the proceedings, which he did not consider to be too late, the prospects of success, which he concluded were there and the overall interests of the administration of justice not to exclude the defendant from the judgment seat, all of which required a balance to be struck at the end of his assessment of the weight to be given to those matters.[30]That is exactly what the Judge did. He weighed the factors pro and con, and it is important to emphasise that there were matters in favour of the claimant but he concluded, as he set out in paragraph 51 of his judgment (see [23] above), that the balance, “albeit by no great margin”, came down in favour of the defendant.[31]In my judgment he was fully entitled to come to that conclusion. It hardly needs to be said that for this Court to interfere with an exercise of discretion, especially one made in the exercise of the judge’s case management powers, he must be shown to have taken into account some matter which he ought not to have borne in mind or had regard to some factor which he ought not to have held to be material. Failing that and failing an error of principle, which is not asserted in this case, the challenge to the exercise of discretion depends upon the judge having exceeded the generous ambit within which there is room for reasonable disagreement. In my judgment it cannot possibly be said that Judge Holman was plainly wrong in the conclusion he reached. It was well within the range of reasonable decisions that could be made in a case of this sort. I would dismiss this appeal.[32]I fully understand that Mr and Mrs Woodland will be distressed by this decision and will feel utter consternation that, so many years after this terrible accident and after an admission of liability, suddenly and unexpectedly they have to prepare for a trial on all fronts. I am totally sympathetic. Some of the delay is, on the facts known to us, inexplicable and one can readily see how matters could have taken a wholly different course. My sympathy for them, and for Annie, does not, however, deflect me from having to dismiss their appeal.[33]I agree.[34]I also agree.

Cited in 16 later judgments

and 7 more of the most senior