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Asharaf v Devon County Council, Plymouth County Court, 18 September 2007

18 September 2007
The issues

Admission – resilement – Pre amendment to CPR 14 – Estopple – waiver – whether Defendant should be allowed to resile from admission, Claimant having apparently accepted resilement by conduct.

The facts

The Claimant brought a claim for personal injuries arising from a tripping accident in March 2003.

During pre-action correspondence the Defendant admitted primary liability on 24 November 2005. Following negotiation an apportionment of liability was agreed on a 90/10 basis in the Claimantís favour. Due to impending limitation, proceedings were issued on 16 February 2006 and served on 19 May 2006. The Defendant instructed external solicitors on 2 June 2006 who reviewed the file and considered that this was a case which had a reasonable prospect of defence.

The value of the claim as pleaded in the Claim Form was up to £50,000. Since the matter was likely to allocated to the multi-track, on the basis of the decision of the Court of Appeal in Sowerby v Charlton (2005) CPR rule 14.1 did not embrace the pre-action admission of liability and accordingly the Defendant, in its defence, resiled from its admission of liability and entered a full defence claim.

On 4 July 2006 Allocation Questionnaires were filed by both parties. The Claimantís Allocation Questionnaire listed that it was intending to call two witnesses purely on liability issues. No request was made by the Claimant at this point for an Order regarding the 90/10 offer despite a box requesting the Claimant to inform the Court of other directions necessary.

On 26 July 2006 the Court allocated the case to the multi-track. A telephone case management conference was listed to be heard on 11 August 2006 and in readiness the parties were to prepare a case summary and proposed directions to be agreed if possible. Liaison between the parties led to agreement being reached as to the case summary and proposed directions which were subsequently filed at Court. The case summary detailed the background of the case including the 90/10 offer and the fact that the Defence resiled from its admission of liability. The parties agreed proposed directions which included disclosure and inspection of documents and exchange of witness evidence. The parties then proceeded through directions exchanging Lists of Documents relating to liability and quantum and exchanging witness statements.

On 6 December 2006 the Claimant issued an Application Notice with the Court requesting that Judgment be entered in favour of the Claimant against the Defendant on a 90/10 basis for an amount to be decided plus costs. The Claimant clearly sought to enforce the 90/10 apportionment previously agreed on the basis that the parties had entered into a binding contract. An Order was made in the terms as applied for by the Claimant on 15 December 2006 and on 21 December 2006 the Defendant made a Counter Application to set aside that Order on the basis that even if there was an intention to enter in to legal relations, the Claimant had accepted the Defendantís breach by virtue of the delay of some 5 months in making their application to challenge that breach.

The substance of the Defendantís case was that the Claimant had waived her entitlement to rely on the 90/10 agreement because of the conduct of the Claimantís representative. If the Claimant had not intended to waive her position under the agreement the Claimant should have applied for summary Judgment after service of the Defence. On the facts the Defendant argued that the case comes within the concept of approbation/ reprobation or blowing hot and cold. The Court was referred to the case of Express Newspapers v News (UK) 1990 in which Sir Nicholas Brown-Wilkinson VC stated that there was a principle of law of general application that ‘it was not possible to approbate and reprobate. That means you are now allowed to blow hot and cold in the attitude that you adopt. A man can not adopt two inconsistent attitudes towards another, he must elect between them and having elected to adopt one stance cannot thereafter be permitted to go back and adopt an inconsistent stanceî. On the basis of this authority the Defendant submitted that it would not be right to allow the Claimant, having had the benefit of sight of all the evidence on liability and the Defendant having incurred the costs of preparing for trial to be allowed to blow hot on assessment and blow cold on a fully contested trial.

In the alternative the Defendant observed that there had been a waiver, or alternatively an estoppel by forbearance on the part of the Claimant. In summary the Defendant argued that there were three requirements:

1. Unequivocal representation by words or conduct
2. Reliance upon that representation by the other party
3. Action to the detriment of that other party

The Defendantís submissions were that in consequence of the clear indications in the Claimantís Allocation Questionnaire and case summary that the Claimantís solicitors were expecting a trial on liability. The fact that the Defendantís solicitors continued the preparation for a trial on both liability and quantum and incurred costs in so doing the three requirements were met on the facts.

Counsel for the Claimant argued that there was no expressed waiver of the contract. It was contended that the case summary should not be interpreted as a concession that the Claimant had resiled from the agreement on liability. Rather the view of the solicitor who prepared the case summary was that the issue of liability should be dealt with as a preliminary issue at the trial as happened in the case of Flynn v Wills heard before his Honour Judge Overend at the Exeter County Court (2001). Counsel for the Claimant argued that there had been insufficient delay to amount to an acceptance of breach. The value of the claim was to be determined by agreement or in default by the Court. Consequently it was argued that it was not possible for there to be a breach of the agreement until after the assessment or agreement as to damages had taken place. Counsel for the Claimant further argued that it could not be waiver or estoppel as both require an unambiguous representation as the result of a positive and intentional act done by the party granting the concession with knowledge of all the material circumstances and the party to whom the concession was granted must act in reliance on that concession. Counsel for the Claimant argued that in the present case there had been no such clear and unambiguous representation.

The decision

The essence of the present case was whether the Claimantís solicitors in words and conduct following the service of the defence and in giving replies to the Allocation Questionnaire, compiling the case summary, giving disclosure documents relevant to liability and serving witness statements containing evidence relating to liability was enough either to engage the principle of approbation and reprobation and/ or to amount to waiver or equitable forbearance.

It was concluded that the statements in the Allocation Questionnaire and case summary and the actions in preparing and serving witness statements without attaching any qualification or reservation did amount to approbation and reprobation (or ‘blowing hot and coldî).

In the alternative the Court found that the three elements of equitable forbearance, were established on the facts. The statements in the Allocation Questionnaire and the case summary and the subsequent action taken in relation to disclosure and exchange of witness statements amounted to a sufficient unequivocal representation that the Defendantís solicitors relied on representations and acted to their detriment by undertaking work relating to liability and incurring costs in relation to such work.

The Court came to the conclusion that the degree of delay in this case (5 months) would not in itself be enough to cross the threshold.

The Order enforcing the 90/10 agreement dated 15 December 2006 was therefore set aside.

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