Background

Picture the scene: the trust receives a letter of claim setting out allegations of negligence in relation to care it has provided. An internal investigation is carried out and the reviewing clinician is critical of the treatment. The letter of response admits negligence. It seems the most pragmatic course of action: the claimant’s solicitors can stop incurring the costs of investigating liability, it will lead to earlier resolution and of course, the trust has to comply with its duty of candour. Further, given the admissions made, the claimant is paid interim payments totalling £50,000 which he spends. Over a year later court proceedings are issued and an independent expert is instructed to consider the claimant’s prognosis to help value the claim. He advises that in his view, there was no negligence and the outcome for the claimant would have been the same in any event. The trust finds itself with a full causation defence. Good news…or is it? This situation arose in a recent case dealt with by Hill Dickinson.

The law - the Civil Procedure Rules (CPR)

Only the court can grant permission to withdraw from an admission of liability after commencement of proceedings. When considering whether or not to grant permission, the judge will consider the following checklist set out in the CPR:

(a) The grounds upon which the admission is to be withdrawn including whether or not new evidence has since come to light (a). (b) The parties’ conduct (b). (c) The prejudice that may be caused if the admission is withdrawn (c) or if it is refused (d). (d) The stage in the proceedings at which the application to withdraw is made (e). (e) The prospects of success of the claim if the admission is withdrawn (f). (f) The interests of the administration of justice (g).

Case law - How have the courts applied the CPR?

In exercising their discretion, judges have placed emphasis on different parts of the checklist arriving at different conclusions. Although helpful guidance can be found in many of the judgments, the lack of consistency makes predicting the outcome difficult. Below, we consider some recent decisions:

In the case of Moore -v- Worcestershire Acute Hospitals NHS Trust (2015), the judge allowed the defendant to withdraw an admission made based on a misreading of its expert’s report, despite the fact that the mistake was not realised for over three years. Here, the judge placed significant emphasis on the interests of justice (paragraph (g) in the checklist above) and found that the trust should not be prevented from asserting a genuine defence. The mistake was a genuine one and did not arise out of deliberate conduct (b). It was also important that the application to withdraw was brought early on in the proceedings (e).

However, in Foster -v- United Lincolnshire Hospitals NHS Trust (2016), an admission was made based on a document from 1994. An expert was instructed later and advised that he believed that the document was inaccurate (report received in November 2015). The trust made an application to resile in February 2016, before the trial in March 2016, but this was refused. The court considered the stage of proceedings and proximity to trial (e) and found that the defendant had delayed bringing the application for three months.

In Hill Dickinson’s recent case, where the defendant filed an application to resile from an admission made three years earlier, judgment was handed down in the claimant’s favour in September 2016 and permission to withdraw was refused. The judge did find that there would be prejudice to the defendant if the application was not allowed (d) namely the loss of a potentially bona fide defence. However, when considering the stage of proceedings (e) although no trial date was fixed, it had been around three years since the admission had been made and the claimant had relied upon the admission and stopped investigating liability. Overall, the judge held that the defendant had chosen not to seek expert evidence at the outset which made it entirely foreseeable that they might need to resile in the future. This risk could have been avoided by obtaining a relatively cheap report at the outset and so on balance, it was in the interests of the administration of justice to refuse the application (g).

Top tips

Although not always consistent, there are common themes in many of the judgments and helpful guidance for defendants wishing to resile from admissions. Here are a few dos and don’ts:

Do

  • Think carefully before making admissions: has there been full investigation?
  • Put the claimant on notice as soon as possible if you are going to make an application to resile and make the application as early as possible after that
  • Show that new evidence has come to light

Don’t

  • Leave it too close to a trial
  • Change your tactics or make an application as a strategic manoeuvre
  • Change your mind