Industrial Maintenance Engineers (IME Contracts) Limited v Webster Miller Limited [2026] EWHC 393 (Comm)

[2026] EWHC 393 (Comm)Case No LM-2025-000093
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
LONDON CIRCUIT COMMERCIAL COURT
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 09/03/2026
Before
HIS HONOUR JUDGE BIRD SITTING AS A JUDGE OF THE HIGH COURT
Between
INDUSTRIAL MAINTENANCE ENGINEERS (I.M.E CONTRACTS) LIMITEDClaimantWEBSTER MILLER LIMITEDDefendant
Brendan McGurk KC (instructed by Wynterhill LLP) for ClaimantHarry Wright (instructed by Kennedys Law LLP) for DefendantHearing Hearing dates: 10 February 2025
Approved Judgment.............................This judgment was handed down remotely at 10:30am on 09 March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]On 2 December 2021, in the course of unloading within the Claimant’s warehouse, the Defendant’s driver caused structural damage. The Claimant seeks damages for losses incurred. There is an issue between the parties about liability. This judgment deals with the Claimant’s application for summary judgment based on an apparent pre-action admission said to be binding on the Defendant.[2]The Defendant was responsible for the acts of its driver and had the benefit of insurance issued by the Third Party (“GLI”) which would (in the event that liability is, in one way or another, established) cover the relevant loss.[3]On 3 December 2021, the Defendant’s broker (“Wrightsure”) notified the claim to GLI making it plain that the incident had occurred in the warehouse (and so not on a road or highway or in a public space). The claim was acknowledged on 6 December 2021 and on the same day, GLI instructed loss adjusters (“Artemis”) to investigate and assess the loss.[4]GLI (acting through Mr Dalton of Artemis) emailed Mr Carl Winkworth, the then finance manager of the Claimant on 13 December 2021 noting that “the file” had been passed to him to “progress forward to settlement”. He gave Mr Winkworth 2 options: provide more detail about the cost of required work or accept a without prejudice offer of settlement. Mr Winkworth replied very quickly. He explained that work to provide further estimates was ongoing and rejected the without prejudice offer.[5]On 5 January 2022 a little after 5pm, Mr Dalton emailed Mr Winkworth and Mr Will Rockett, the Claimant’s Managing Director. He wrote:
“Hi Carl,I had tried to call back but unfortunately I was unable to get through. To confirm the insurer has advised that liability is accepted, though I am struggling to get through to our Contractor Manager, so will aim to revert back to you in the morning. I hope that is of assistance to you. Kind regards, Allan Dalton….”
Allan Dalton….”[6]On 6 January 2022, at 8.30am Mr Dalton followed up having discussed matters with the contractor manager and on 7 January 2022 Mr Winkworth noted that “the team” had visited the Claimant.[7]On 10 March 2022, the Defendant contacted GLI to discuss renewal premia for the relevant insurance. It noted there was “[n]o denying the warehouse incident but hopefully the £800k reserving is a little over the top.” On 25 March 2022 GLI informed the Defendant that the loss “was now with our large loss team”.[8]On 17 March 2022 GLI made an interim payment of £173,500 to the Claimant without any reservation of rights.[9]On 5 April 2022, GLI declined cover on the ground that the Defendant’s equipment was not being used on a road or highway or in a public space.

The procedural history

[10]The Claimant issued proceedings on 24 August 2024 against the Defendant. At paragraph 28 of the Particulars of Claim the Claimant pleads the 5 January admission and avers that Artemis were acting within the scope of their authority so that the Defendant was bound by the admission. At paragraph 30 it is averred that the admission is binding by operation of CPR 14.1.[11]In its Defence, the Defendant denies liability and raises, in the alternative a contributory negligence argument. It pleads to paragraph 28 at paragraph 36 of the Defence averring that the 5 January email is not a binding admission for 4 reasons: Artemis were not acting for the Defendant, the admission made no reference to the Defendant, the admission was made on a without prejudice basis and Mr Dalton had no actual or ostensible authority to bind the Defendant. Paragraph 30 of the Particulars of Claim is denied at paragraph 39 of the Defence, on the ground that there was no admission of the Claimant’s case. In the alternative, the Defendant signalled an intention to apply to withdraw the admission under CPR 14.1(2)(b).[12]The Clamant filed a Reply and pleaded that condition 1(iii) of the relevant policy of insurance gave GLI a contractual right to deal with the Defendant’s defence of the matters giving rise to the claim in the name of the Defendant and as the Defendant’s agent. The right was exercised on 6 December 2021 when GLI took over the claim and passed management of it to Artemis. It was also pointed out that GLI had no freestanding liability, and the only liability was that of the Defendant. The term (the conduct of defence term or “CoD”) provides:
“No admission, offer, promise, payment or indemnity shall be made or given by or on “your” behalf without “our” previous consent in writing. “We” shall be entitled if “we” so desire to take over and conduct in “your” name defence or settlement of any claim or to prosecute in “your” name for “our” own benefit any claim for indemnity or damage or otherwise and shall have full control and discretion in the conduct of any proceedings or in the settlement of any claim and “you” shall give all information and assistance as “we” may require and shall not act in any way to “our” detriment or prejudice “our” interests.”
[13]On 15 January 2025, the Defendant issued an additional claim (see CPR 20) against GLI. That claim has been settled. The terms are confidential. The claim was brought “without prejudice to” the Defendant’s defence of the claim and sought “declaratory relief and/or damages against GLI in respect of any liability which it is found to owe to [the Claimant].”[14]The additional claim pleads the admission at paragraph 18.5 and identifies it as containing or evidencing “a clear admission of the insurer’s liability.” At paragraph 18.7 it pleads that an interim payment (without any reservation of rights) was made on 17 March 2022.[15]The Part 20 pleadings include the following admissions:a. that GLI exercised its rights under the CoD and formally took over the conduct of the Claimant’s claim (see GLI’s Defence at 2.3; Artemis were instructed to manage the claim, 18.4 and GLI instructed Loss Adjusters to seek to deal with the Claimant and 18.6.4 which refers specifically to the “conduct of the defence”),b. Artemis had authority to make an admission binding on the Defendant (GLI’s Defence at 23.1).[16]The Claimant issued an application for summary judgment against the Defendant on 16 September 2025, having previously given notice of its intention to do so and having afforded the Defendant an opportunity to respond. On 8 October 2025, the Defendant issued a fall-back application to withdraw its admission.[17]The headline issues to be decided are:a. Did the relevant admission of liability bind both the Defendant’s insurer and the Defendant?b. If so, should the Defendant be permitted to withdraw the admission?

Summary Judgment

[18]The test for summary judgment is not in dispute and so I need not set out the tests exhaustively.[19]I remind myself that the test for summary judgment is set out in CPR 24. The court may grant summary judgment if it is satisfied that the Claimant has no real prospect of success and there is no other compelling reason why the claim should be disposed of at trial. Here, "real" means more than fanciful.[20]In order to decide if the evidence shows a more than fanciful prospect at trial, there must be some evaluation of the evidence. In carrying out that exercise, a degree of caution is needed. The court must not conduct a mini (or any) trial. The following principles are derived from Easyair v Opal Telecom 2009 EWHC 339 Ch and paragraph 142 of Amersi v Leslie [2023] EWHC 1368 KB a decision of Nicklin J:a. The court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence what can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;b. If a party faced with a summary judgment application wishes to rely on the likelihood that further evidence will be available at trial, they must substantiate that assertion by describing, at least in general terms, the nature of the evidence, its source, and its relevance to the issues before the court. ICI Chemicals & Polymers Ltd -v-TTE Training Ltd [2007] EWCA Civ 725 [14] per Moore-Bick LJ. Fundamentally, the question is whether there are reasonable grounds for believing that disclosure may materially add to or alter the evidence relevant to whether the claim has a real prospect of success: Okpabi -v- Royal Dutch Shell Plc [2021] 1 WLR 1294 [128] per Lord Hamblen.

Preliminary points

[21]Before dealing with the 2 issues I have set out at paragraph 17, 5 relevant questions arise. It is convenient to deal with them first:a. Does the 5 January 2022 email contain an admission and if so what is the extent of it (in particular did it leave contributory negligence to be decided)?b. Is the email part of a without prejudice chain of communications so that it cannot be relied upon?c. What is the correct interpretation of the CoD (in particular does the absence of written consent from GLI mean the apparent admission is not binding on anyone)?d. What version of CPR 14 applies to the admission (if it is an admission): The version in force when the admission was made or the version in force from 1 October 2023?e. Does Walley v Stoke-on-Trent City Council [2006] EWCA Civ 1137 impose a requirement that a party seeking to resist the withdrawal of an admission must show that withdrawal “will affect the fairness of the trial” as Mr Wright argues at paragraph 80 of his skeleton argument. Does the 5 January 2022 email contain an admission and if so what is the extent of it (in particular did it leave contributory negligence to be decided)?[22]The apparent admission is set out at paragraph 5 above. I am satisfied that it plainly amounts to an admission of liability. The words must be given their ordinary meaning and be interpreted objectively. A reasonably informed reader, aware of the context of the email (the circumstances of the relevant incident, the extent of the damage and the desire to “progress forward to settlement”), could only read the email as an acknowledgement that liability was agreed and that the only issue to be determined before the Claimant received a payment, was the issue of quantum.[23]In Maes Finance Ltd v AL Phillips & Co [1997] WL 1104736 Sir Richard Scott said:
“The question whether contributory negligence can be raised for the first time on an assessment of damages, liability having already been established, cannot, in my judgment, now be answered simply by categorizing contributory negligence as a "defence". Whether it can be raised after judgment depends, in my opinion, on the nature of the issues that were settled by the judgment. It may be that the obtaining of a judgment for damages to be assessed, whether summary judgment or judgment at trial, would have settled some issue on which an allegation of contributory negligence would depend. If that were so, then contributory negligence could not be raised without first having the judgment set aside.” first having the judgment set aside.”
[24]The pleading of contributory negligence (see paragraph 28 of the Defence) refers back to paragraphs 7 to 10 of the Defence which appear at section B of the pleading under the heading “the incident”. It is plain from the pleading that any argument about contributory negligence would require an in-depth examination of the facts surrounding the relevant incident. The specific allegation of contributory negligence (in short that the Defendant’s driver was following instructions given by the Claimant at the time the damage was caused) is in reality advanced as a full defence to the claim. Paragraph 10 of the Defence makes that explicit, where the Defendant pleads that the Claimant expressly acknowledged full responsibility for the damage. It is impossible to see how a trial of the contributory negligence issue would avoid dealing with a full exploration of the circumstances of the incident and so of liability.[25]It follows in my judgment that if contributory negligence allegations were to be pursued the liability admission would necessarily have to be withdrawn, because the acceptance of liability “settled some issue on which an allegation of contributory negligence would depend” namely, that the Claimant’s apparent admission of full responsibility was incorrect. The present case is an example of a situation where the contributory negligence plea is in fact a defence.[26]I am therefore satisfied that the issue of contributory negligence was compromised. Is the email part of a without prejudice chain of communications so that it cannot be relied upon?[27]It is in my judgment plain that the admission was not made on a without prejudice basis. I accept that there are circumstances in which correspondence will be treated as without prejudice even if not expressly marked as such, because its nature is plain from the surrounding circumstances. This is not such a case.[28]I accept that there was some without prejudice correspondence on 13 December 2021. It dealt with a global offer for settlement and resulted in an express rejection of the offer. The negotiations that attracted the without prejudice privilege therefore came to an end. It cannot be suggested that the 5 January 2022 email was somehow a resurrection of the same negotiations. The without prejudice negotiations (in respect of which privilege has been waived) dealt with a full and final settlement necessarily dealing with liability and quantum and the 5 January 2022 email simply deals with liability.[29]I also accept that GLI have not asserted that any without prejudice privilege attaches to the email of 5 January 2022. The Defendant pleads that the emails “contained or evidenced a clear admission of the insurer’s liability.” GLI’s response (see paragraph 18.6.5 of their Defence) is to admit the communication and not to raise any issue of privilege. What is the correct interpretation of the CoD (in particular does the absence of written consent from GLI mean the apparent admission is not binding on anyone)?[30]It is common ground that the loss adjusters were instructed in accordance with the CoD.[31]Mr Wright, for the Defendant submits that the first sentence of the CoD “No admission, offer, promise, payment or indemnity shall be made or given by or on “your” behalf without “our” previous consent in writing” means that any admission made by Artemis is not binding. As a “literalist exercise focused solely on a parsing of the wording of the particular clause” Mr Wright’s argument has some force. However, such an exercise is not a helpful one in the search for the correct interpretation of the CoD as a whole.[32]In my judgment the proper meaning of the CoD is something I can deal with within this summary judgment application.[33]The remainder of the CoD gives GLI the power to deal with the claim between the Defendant and the Claimant and to do so in the Defendant’s name. The power appears to be absolute (although it was accepted it would be subject to Braganza limitations) and no formal notice or process of the decision is required.[34]Mr Wright seeks to limit the express words of the rest of the CoD by reference to the words of the first sentence. The natural effect of his submission is that GLI could only make an admission within the claim, if it had given itself “previous consent in writing.” Faced with the absurdity of that position Mr Wright accepted that GLI would not need such permission but asserted that its agent (Artemis) would. I am unable to accept that submission.[35]It is in my judgment plain that the first part of the CoD is addressed to what the insured can and cannot do, whilst the second part is addressed to what the insurers can and cannot do. Read in that way the entire provision fits together and makes commercial sense. What version of CPR 14 applies to the admission (if it is an admission): The version in force when the admission was made or the version in force from 1 October 2023?[36]The difference between the pre-October 2023 version (“the old version”) and the post October 2023 version (“the new version”) lies in the treatment of a pre-action admission. Under the old version, I accept that most pre-action admissions could be withdrawn without the need to seek the court’s permission. The admission contained in the 5 January 2022 email, if governed by the old version could have been withdrawn without the need to seek permission. I understand this to be common ground.[37]It is also common ground that there is a presumption that legislation dealing with matters of substantive law will not have retrospective effect. The presumption does not apply to legislation concerned with matters of procedure. In the latter case the presumption is in effect reversed; the relevant provision is to be construed as having retrospective effect unless there is a clear indication that was not the intention of the legislature (see para.30 of the judgment of Vos LJ, as he then was, in Wagenaar v Weekend Travel Limited [2014] EWHC Civ 1105).[38]Mr Wright says the changes to CPR 14 brought about a change in the substantive law and not mere procedural change. He relies on Yew Bon Tew v Kenderaan Bas Mara [1983] AC 553, a decision of the Privy Council and on L’Office Cherifien Des Phosphates v Yamashita-Shinnihon Steamship Co. Ltd(the Boucraa) [1994] 1 AC 486 a decision of the House of Lords.[39]The Privy Council in Yew Bon Tew had to consider if a statute that lengthened a limitation period had retrospective effect. The claimant had been injured in a road traffic accident. At the time of the accident the limitation period for bringing an action was 12 months. After the expiry of the limitation period, the limitation period was increased to 3 years. After the coming into force of the new and longer limitation period, the claimant issued a claim. The claim was struck out. The Privy Council upheld that decision.[40]The Privy Council accepted that the limitation statute was procedural in nature, but that it could sometimes give rise to substantive rights. To determine if the statute had retrospective effect (if the longer limitation period applied), it was necessary to see whether the statute, if applied retrospectively “would impair existing rights and obligations.” It was concluded that at the time the new period came into effect, the Defendant had an existing right (to raise the time bar and so defeat the claim) and that treating the statute as retrospective would impair that right. The Privy Council found that an accrued right to plead that a claim was time barred was “in every sense a right, even though it arises under an act that is procedural.” It followed that the accrued right was not to be taken away unless the statute could only be construed to show that was the intention.[41]In the Boucraa, owners of a vessel damaged on hire referred the dispute to arbitration. In 1992 the charterers applied to dismiss the claim on the ground of delay relying on a statutory provision introduced earlier that year. The charterer relied on delay from before the coming into force of the relevant provision. The arbitrator dismissed the claim, and the House of Lords eventually upheld that decision. It was held that the question in each case was whether the consequences of retrospectivity were so unfair that Parliament could not intended that as an effect.[42]Mr Wright submits that the Defendant had a right to withdraw the admission when the old version was in force and the introduction of the new version took that right away and that applying the new version would be so unfair that it could not have been intended.[43]I am unable to accept those arguments. The relevant right (to plead the time bar) in Yew Bon Tew completely extinguished the claimant’s right to bring an action, it was therefore a substantive right and not a mere procedural right (even though, as the Privy Council pointed out, it arose under a procedural statute). The relevant right in the present case (to withdraw an admission) neither creates not destroys a right to sue. The right, properly understood, is not substantive it is merely procedural. In my view on that analysis, the impact of retrospectivity is not so unfair that retrospectivity cannot have been intended. Does Walley impose a requirement that a party seeking to resist the withdrawal of an admission must show that withdrawal “will affect the fairness of the trial”?[44]Walley is an example of the treatment of pre-action admissions under the version of the CPR that pre-dated the old version. In short, the position was that the then relevant CPR provision did not apply to pre-action admissions at all. The Defendant made a pre-action admission of liability and withdrew it before proceedings were issued. The Defendant filed a defence denying liability and Mr Walley applied under CPR 3.4 to strike out the Defence on the ground that it was an abuse of process or was otherwise likely to obstruct the just disposal of the claim. The Defendant responded with an application to withdraw the admission. A Deputy District Judge struck out part of the Defence and entered judgment for damages to be assessed. On appeal to the circuit court, the judge upheld the decision.[45]The Court of Appeal decided the matter as a strike out application. That is clear from paragraph 31. The reason was, as explained above, a pre-action admission could be withdrawn without the need for permission. In essence, the Court of Appeal had to decide if the Defence (based on the withdrawal of the admission) was an abuse of process or was otherwise likely to obstruct the just disposal of the claim. It was accepted (paragraph 31) that the strike out test “presented a much higher threshold for the claimant to cross than would be the case if the court were exercising a broad discretion [to allow the withdrawal of an admission]” (at paragraph 35 it was described as a “more restricted” test).[46]The threshold was higher because (see the submissions at paragraph 32 accepted by the Court at paragraphs 34 and 35)a. “In order to rely on abuse of process, it would usually be necessary for the claimant to show that the defendant had acted in bad faith. Bad faith was not suggested in this case. In order to show that withdrawal of the admission would be likely to obstruct the just disposal of the proceedings, the claimant would have to show that he would suffer real prejudice if the admission were withdrawn.”b. “…in order to show [that the denial of liability in the Defence] is likely to obstruct the just disposal of the case, it will usually be necessary for the claimant to show that he will suffer some prejudice which will affect the fairness of the trial.”[47]The substance of the Defence (the denial of liability) was the embodiment of the withdrawal of the admission, that is why the Court of Appeal (at paragraphs 34 and 35) examined whether the withdrawal of the admission (in effect the pleaded denial) was an abuse of process or was likely to obstruct the just disposal of the claim. At paragraph 36 the Court of Appeal concluded that Mr Walley could not “demonstrate that the council’s withdrawal of its pre-trial admission is either an abuse of the process of the court or is otherwise likely to obstruct the just disposal of the case.”.[48]It follows that Walley is not authority for the proposition that in order to resist the withdrawal of an admission a party must show that the withdrawal will affect the fairness of the trial. It is authority for the proposition that under the then prevailing CPR, the impact of the withdrawal of a pre-action admission could only be challenged by an application to strike out. The main issues Did the relevant admission of liability bind both the Defendant’s insurer and the Defendant?

The main issues

[49]In my judgment the admission plainly bound both GLI and the Defendant. That is the effect of the CoD. GLI took over conduct of the claim and made the admission. The making of the admission would be empty if the Defendant insured was simply able to countermand it.[50]I do not accept any of the reasons put forward by the Defendant to support the proposition that the admission is not binding.

Withdrawal of the admission

[51]CPR 14.5 is a helpful guide to the factors I should have regard to when considering whether to allow the admission to be withdrawn. I remind myself that I must consider all the circumstances of the case.

Grounds for seeking to withdraw the admission

[52]Generally, admissions are useful because they save time and cost, they promote the overriding objective and ensure the parties and the court can concentrate on the relevant issues. These general points are based on the premise that the party making the admission does so for good reason and after mature reflection. The Defendant asserts that it is not in that position. It did not make the admission and would have declined to make it if consulted.[53]Further, the insured is in an unfortunate position. In normal course, the comfort for an insured whose insurer makes an admission binding on it, is that the insurer provides cover. Here, that is not the case. The insurer has refused to indemnify. It follows that the insured is stuck with all the disadvantages of the admission but none of the benefits.[54]In my view, there is an answer to these points. In short,the Defendant and GLI have compromised all issues between them concerning GLI’s refusal of cover (including the effective reneging on the admission) and (as they are entitled to do) are keeping the terms of the compromise confidential. It seems to me in those circumstances it would be wrong to attribute any weight to the apparent unfairness of the situation the Defendant finds itself in. I also bear in mind that the insured has no right of veto over the admission because it has surrendered the power to make it to the insured by signing up to the CoD.[55]The CoD makes it plain that the Defendant is bound by the admission. That is the contractual bargain to which the Defendant agreed. Against that background, it seems to me that the potential unfairness (which may have been wholly remedied) is not relevant to my determination.

Is there new evidence that was not available when the admission was made?

[56]There is no new evidence.

The conduct of the parties

[57]I do not accept that the Claimant is guilty of any relevant or culpable delay. Proceedings were issued within the limitation period, and the Claimant plainly and clearly put the admission in issue. The Claimant served a draft summary judgment application on 12 June 2025 and allowed the Defendant some time to reply. The draft was served about 2 months after the Defendant had replied to the claim and produced its defence to GLI’s counterclaim. It was in my judgment prudent to wait for the pleadings to close before considering an application for summary judgment and it was very sensible to serve the application first in draft.

Prejudice to any person if the admission is withdrawn or not

[58]The Defendant has positively relied on the admission in its claim against the insurer. It may be that reliance on the admission made a real contribution to the decision on the part of the insurer to settle the claim. I cannot say for certain that the admission was a material factor, but it is in my judgment very likely. If that is right, then withdrawal of the admission would plainly result in unfairness. The Defendant would, on withdrawal, have had the benefits of the admission without taking any of the burdens.[59]From the Claimant’s point of view, the withdrawal of the admission would deprive it of judgment on liability and so compel it to deal with the cost and inconvenience of a litigated claim on liability on a basis that it did not consider would come about when the proceedings were issued.[60]I do not regard the relative size, or financial might of the parties as a relevant factor.

Stage of the proceedings

[61]The proceedings are at early stage. There has not yet been a CMC.

Prospects of success

[62]I accept that the Defendant has a real (as opposed to a fanciful) prospect of success in defending the claim. I would put the prospects of success, as things stand, no higher.

The interests of the administration of justice

[63]The overriding objective deals with the administration of justice. This heading deals with matters beyond the particular facts of the case before me. In considering the interests of the administration of justice I bear in mind the need to deal with cases justly and at proportionate cost.

Withdrawal

[64]I am satisfied that it would not be appropriate to permit the withdrawal of the admission.[65]There is in truth no substantive good reason for the withdrawal. By operation of the CoD the admission should be treated as an admission made by the Defendant. There is no basis to suggest it was made in error (the fact that the Defendant would have refused to agree to the admission is not evidence of an error because the Defendant had no right to object) and every reason to treat it as an admission made by an experienced professional person (Mr Dalton) after appropriate discussion.[66]The unfairness that arises as a result of GLI’s subsequent refusal to indemnify is wiped out by the settlement reached between GLI and the Defendant on the additional claim.[67]In truth, prejudice suffered by the Defendant comes not from the admission but from 2 sources: GLI’s subsequent decision to refuse cover and the operation of the CoD. The Defendant has dealt with the first by settling its claim against GLI and the second is in reality not prejudice at all because it arises out of a legitimate compromise of the claim of the kind given to GLI by the Defendant.[68]Taking into account all the circumstances of the case it is in my judgment plain that permission to withdraw the admission must be refused.

Conclusion

[69]For all these reasons I refuse permission to withdraw the admission and grant summary judgment on liability to the Claimant.