Counsel are encouraged to make admissions where it is appropriate to do so in order that litigation is conducted efficiently; however, they are at the same time rightfully cautious to make admissions, whether in a pleading, notice to admit, or by other means, as they are difficult to withdraw. In Glover v. Leakey, 2016 BCSC 1624, rev'd in part 2018 BCCA 56, the defendant denied liability for a motor vehicle accident where that same defendant had admitted liability in a separate action arising from the same accident, but involving a different passenger, that had settled. The trial judge found the inconsistent pleadings constituted an abuse of process. On that basis, the trial judge struck the denial of liability from the response to civil claim. An appeal was allowed in part on the basis that the inconsistent pleadings, without more, did not constitute an abuse of process.

The plaintiff, Diana Glover, was injured in a motor vehicle accident where her husband, the defendant Kenneth Roger Leakey, was the driver. Ms. Glover sued her husband in negligence. Mr. Leakey denied liability.

Mr. Leakey and Ms. Glover had previously settled a negligence claim made by another passenger in the vehicle and, in the context of that action, Mr. Leakey had admitted negligence in the response to civil claim.

At the trial in Glover, counsel for the plaintiff applied to have the denial of liability in the defendant's response to civil claim struck as an abuse of process. When this application was heard there was a misunderstanding between the trial judge and counsel. The trial judge mistakenly understood that counsel for the defendant had acceded to the suggestion of counsel of the plaintiff that the trial judge hold her decision on the abuse of process application until after the jury had returned its verdict. Due to the misunderstanding, the trial judge charged the jury and the jury returned a verdict finding the defendant was not liable.

At that point, counsel made submissions with regard to how to deal with the jury verdict. The trial judge: (1) declared a mistrial (as the confusion at trial had resulted in counsel for the plaintiff not cross-examining the defendant about the prior admission); (2) dismissed the defendant's application to enter the jury verdict; (3) granted the plaintiff's application to strike the denial of liability in the response to civil claim; and (4) granted the plaintiff judgment on liability.

On appeal, the issue (with respect to the defendant's admission of liability in the other action) was whether the inconsistent pleadings, without more, amounted to an abuse of process. In addressing this question of law, the Court focused on the distinction between formal and informal admissions. A formal admission is made through a pleading or a notice to admit and, in keeping with the language of Rule 7-2(2), the matter is admitted for the purposes of the action only. A formal admission in one action is admissible in another action as an informal admission and may be used to impeach a party who takes an inconsistent position in the second action; however, informal admissions are merely evidence and are not conclusive (see: para. 30).

Relying on inconsistent pleadings may amount to an abuse of process in some circumstances, but to give rise to such an injustice there must be something more than the mere inconsistency (see: para. 32).

Abuse of process is a flexible doctrine and one circumstance in which it may apply is where litigation before the court is in essence an attempt to relitigate a claim that has already been determined, especially where the strict requirements of issue estoppel are not met; however, courts have been cautious in their application of abuse of process in this context, especially where the prior action has not proceeded to judgment (see: para. 40). In Glover, the previous, related litigation had settled before trial. As there was no prior adjudication of the matter the finality principle of abuse of process was not engaged.

The Court identified several other reasons the inconsistent pleading could not be said to bring the administration of justice into disrepute:

1. the plaintiff had not in any way relied on the admission at the trial and was not misled or confused by it;

2. the inconsistent plea was not a positive averment, it was merely a denial; this was significant as it could not be said that by denying liability the defendant was pleading facts known to be untrue; and

3. it is consistent with good practice to encourage parties to make admissions and settle claims where they should be settled; if an admission in one proceeding created an abuse of process in a later proceeding settlement would necessarily be discouraged.

The Court found the denial of liability ought not to have been struck as an abuse of process. The trial judge erred in finding the defendant had abused the process of the court simply by denying his negligence in the action at bar after admitting liability and settling another action arising out of the accident in question. A new trial was ordered where the defendant would be entitled to contest his liability.

The Court upheld the trial judge's order granting a mistrial. The granting of a mistrial "is an exercise of discretion that is not to be interfered with lightly" (see: para. 50). In the circumstances of the case it could not be said the jury would necessarily have reached the same result if the defendant had been cross-examined on the prior admission.