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Sowerby v Charlton, Court of Appeal, 21st December 2005

23 January 2006
The issues

Withdrawing Admission of Liability – Admission Made Pre Action – Whether Defendant Needed Permission of Court to Withdraw Permission – CPR 14.1

The facts

The Claimant brought a claim for catastrophic personal injuries suffered in April 2003 when she was visiting a house in Richborne Terrace, Vauxhall in London. The front door of the property was at a higher level than the pavement and she had to go up 8 stone steps to the platform outside the front door. There was a handrail on the left hand side of the steps but not on the right hand side. To the right hand side of the front steps were steps leading down to a basement flat. On each side of the front steps was a low stone pediment about one and a half to two inches high. On the night in question the Claimant seems to have fallen over the edge of the platform outside the front door, a distance of at least 8 feet on to the hard surface or the stone steps below. As a consequence of the accident the Claimant was rendered paraplegic.

In October 2003 a Letter of Claim was written by her solicitors. The Defendant’s insurers responded on 12th November seeking details of the claim. The matter was passed to the insurer’s solicitors. Eventually on 10th May 2004 the Defendant’s solicitors stated in a without prejudice letter “having investigated this claim the Defendant is prepared to admit a breach of duty”. There then followed a proposal for settlement of the contributory negligence issue. This admission was contained in what purported to be a “without prejudice” letter. On 30th June the Defendant’s solicitors re-stated their letter dated 10th May this time as an open letter. Proceedings were started and the Defence was filed on 24th September 2004. Primary liability was put in issue. The Claimant applied to strike out paragraphs of the Defence. The Master granted that application. The Judge upheld the Master’s decision on the first appeal. The Defendant appealed to the Court of Appeal.

The decision for the Court of Appeal was whether CPR 14.1 which provided that a party could admit the truth of the whole or any part of another party’s case in notice by writing and CPR 14.5 which provided that the Court could allow a party to amend or withdraw an was capable of embracing admissions made before an action was started.

The decision

1. The CPR was a new procedural code. A Court would not be assisted by considering authorities on the point which pre-dated the introduction of the new code. The CPR was principally concerned with the regulation of cases after an action had started. The rule seemed to have been so carefully drafted that the rule makers could not have intended pre action admission of liability to be embraced by the words “a party may admit the truth of the whole or any part of another party’s case” in CPR 14.1.

2. The Court was fortified in its conclusion that Part 14 was not intended to embrace pre action admissions by the fact that those who had drafted the pre action protocol personal injury claims clearly did not believe that it had that effect. The protocol specifically referred to the presumption that in claims with a value of less than £15,000.00 admissions pre action would bind the Defendant. It was clear that the protocol did not intend any such presumption to pre action admissions of liability in Multi Track claims. The Judge below had therefore been wrong. This was not the end of the appeal however.

3. The Defendant had installed a second handrail after the Claimant’s accident although she had never received any complaint or request from any tenant for such a handrail and had never had any reason to think that one was at all necessary. Nobody had advised her to add another handrail to the front steps at any time. On the date in question the Claimant and her boyfriend had met up with two Australian friends for a drink after work in the Bank area and afterwards had visited another public house in the Vauxhall area, a tapas bar, and a third public house before finishing up in the ground floor flat at 10 Richborne Terrace where she had another drink. She maintained that she had probably had 5 or 6 drinks but was not drunk. Hospital notes described her as intoxicated. There was clearly a live issue on contributory negligence. The Court however had to determine whether there was any real prospect of the Defendant warding off a finding of primary liability.

4. This was a finely balanced case. As in a decision of Mackay J in Lips v Older [2004] EWCH 1686 the consequences of the fall was significant and the steps to be taken to prevent it were inexpensive and reasonable. In the circumstances the Court found it inconceivable that any High Court Judge would fail to find the Defendant at least partly liable. Summons Judgment therefore might be entered against the Defendant and the Master’s Order could therefore stand.

5. The Court commented that the decision in Gale v Superdrug should now be approached with caution because it was concerned with the effect of a regulatory regime abolished after that decision was made. On the other hand the Judgment in Braybrook v Basildon & Thurrock University NHS Trust provided valuable guidance on the way in which a Court should exercise its discretion when determining whether or not to permit the withdrawal of an admission that was made after an action was commenced.


Summner J in Braybrook drew the following principles from the cases in the CPR with regard to how the Court should consider its discretion. Amongst the matters to be considered would be:-

a) The reasons and justification for the application which must be made in good faith.

b) The balance of prejudice to the parties.

c) Whether any party had been the author of any prejudice that they might suffer;

d) The prospects of success of any issue arising from with withdrawal of an admission;

e) The public interest, in avoiding wherever possible satellite litigation, disproportionate use of corporate resources and the impact of any strategic manoeuvring.

Generally he commented, the nearer any application was to a final hearing the less chance of success it would have even if the party making the application could establish clear prejudice.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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