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Woodland v Swimming Teachers Association & Ors, Court of Appeal, 16 March 2011

21 March 2011
The issues

Resilement – withdrawal of admission of liability.

The facts

In July 2000 the Claimant had a tragic accident when having swimming lessons at the Gloucester Park swimming pool in Basildon. Her school had arranged for Direct Swimming Services for lessons at the pool. The class had been divided into groups reflecting their abilities. The Claimant was one of the better swimmers and was probably swimming her first length when she got into difficulty. What happened was unclear but she was seen to be in distress and submerged and was eventually pulled to one side of the pool. She had ceased to breathe and attempts were made to resuscitated her. Tragically she suffered an hypoxic brain injury which has left her with severe learning disabilities. The claim had a value of between £2 million to £3 million.

A letter of claim was written by the Claimant’s solicitors in 2001 to Basildon District Council. The Council’s insurers denied liability and suggested that the claim be redirected to Mrs Stopford who traded as Direct Swimming Services. The Claimant’s solicitors consequently sent Mrs Stopford a letter of claim in March 2001 alleging inadequate supervision. Mrs Stopford was a member of a professional association, The Swimming Teachers Association, who had block insurance cover with Assitalia, part of Assicurazione Generali SpA Group. The second letter of claim was passed to STA who referred it to Assitalia, who asked Crawfords to handle the claim on its member’s behalf. The Health and Safety Executive carried out an investigation and a further investigation.

The HSE principle inspector wrote to Mrs Stopford in 2003 to say that the experts instructed were clear that there had been a delay in spotting the Claimant and that it was likely that she had been in trouble for 1 to 1.5 minutes before rescue was undertaken. The principle inspector referred to lifeguarding systems in place “to some extent”. The report that the HSE had commissioned from Linda Bailey of the Institute of Sport and Recreational Management had stated that the Claimant should have been spotted by the lifeguard or swimming instructor for the group when she first got into difficulties and that the lifeguard and instructor were distracted from or not applying proper attention to their duties. The principle inspector confirmed however to Mrs Stopford that after careful consideration, coupled with the time taken since the investigation, no action would be taken against the individuals concerned. This was in 2003. It was unclear what had happened after that and all that was known was that it was not until May 2007 that the claim was resurrected. In May 2007, the Claimant’s solicitors wrote to Crawfords with a copy of the report of Ms Bailey.

In November 2007 Crawfords admitted liability with no allegations of contributory negligence. In the following year, the case was passed to new solicitors who had difficulty in obtaining the file from the previous solicitors and when they did the papers were incomplete.

An interim payment was requested and sent in the sum of £5,000. In 2009 a further interim was requested of £100,000. In July 2009 the solicitors then appointed on behalf of the Defendant sought to resile from the admission.

Proceedings were subsequently issued and the Defendants applied for an Order withdrawing the admission of liability pursuant to Rule 14.1A(5) of the CPR. The matter came before the Judge who permitted the withdrawal of the admission.

The Claimant Appealed.

The decision

The Court would not interfere with an exercise of discretion, particularly one made in the exercise of case management powers unless it could be shown that the Judge had taken into account some matter which he ought not to have borne in mind or had had regard to some factor which he ought not to have held to be material. In the absence of that and in the absence of any error of principle, the challenge to the exercise of discretion depended upon the Judge having exceeded the generous ambit within which there was room for reasonable disagreement. The Claimant relied on the decision in American Reliable Insurance Company v Willis Ltd and the emphasis put in that case on the absence of new evidence as forming a formidable threshold for the resiling party to overcome, together with the absence of any real explanation of the reasons why and justifications for the application.

That was an unusual case in unusual litigation in the Commercial Court. In that context the factors considered by the Judge were important. That was not to say however that they would always assume that significance in every case. It would be wrong to take the Judge’s observations in that case out of context and elevate them into a threshold test which all applications to withdraw admissions must cross to ensure success.

CPR 14.1A(3) conferred a wide discretion on the Court to allow the withdrawal of a pre-action admission. Paragraph 7.2 of Part 14 of the Practice Direction listed the specific factors the Court had to take into account in addition to the need to have regard to all the circumstances of the case. Those factors were not listed in any hierarchical order, nor was it to be inferred from the Practice Direction that any one factor had greater weight than another. A Judge had to have regard to each and every one of them, give each and every one of them due weight, take account of all the circumstances of the case, and strike a balance with a view to achieving the overriding objective. Sometimes the lack of new evidence and the lack of explanation might be the important considerations. In other cases, prejudice to one side or the other would provide a clear answer. It would be wrong for the Court to circumscribe the manner or the exercise of the discretion or to give any more guidance than was trite, namely to carry out the tasks set by the Practice Direction.

In this case the Judge had been fully entitled to come to the conclusion he had reached.

Appeal dismissed.

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