Department of Constitutional Affairs - Her Majesty’s Courts Service - Consultation on Pre-Action Admissions
Response by Thompsons Solicitors - October 2006
Thompsons only acts for trade union members and the victims of injury, never for employers or insurance companies. At any one time the firm will be running 70,000 claims.
The firm participates regularly in government consultations on legislative issues. It has also responded to the HMCS consultation Part 36: offers to settle and payments into court and considers that these two consultations should be considered alongside each other.
This is because there are clear consequences for the way in which defendants treat and make pre and post action admissions arising out of any decision to remove a requirement to make payments into court.
1. Should pre action admissions be given some weight by the civil procedure rules?
a) Should a defendant require the permission of the court to withdraw an admission made before the action proper was commenced?
We do not believe that a defendant should be allowed to withdraw an offer at any point, except where fraud can be proved.
Defendants are currently making applications to court to withdraw admissions and these are being granted. This makes a mockery of the intention of the Civil Procedure Rules (CPR) to speed up cases and not bog the courts down dealing with unnecessary and unjustifiable applications.
When a defendant insurer admits liability, the claimant solicitor will often stop investigating the claim, which prevents further costs being incurred. This is as intended by the CPR. Claimant solicitors are constantly criticised by defendants for ramping up costs. But our duty is to ensure that costs are reasonable, necessary and proportionate and this is why investigations will be stopped on an admission of liability.
If the defendant changes their mind and withdraws an admission, investigations have to re-start and evidence may have gone cold. Much extra work tracing witnesses and employing experts may need to be done. It can be of little surprise to the defendants if claimant costs then become disproportionate.
We attach an Appendix to this response with real examples of the issues and difficulties presented when defendants resile from admissions.
b) Should a claimant be able to apply for judgment on the basis of a pre-action admission which was withdrawn before the action was commenced?
A claimant should be able to rely on pre-action admissions whether this is withdrawn pre or post action. If a defendant has properly investigated liability and following those investigations makes an admission of liability then they should be bound by that admission. A claimant should have the certainty of knowing that where an admission is made they can stop liability investigations.
Enabling a client to apply for judgment on the basis of a pre or post-action admission will mean that liability investigations can be stopped without risk of them having to be restarted, thus saving considerable time and costs.
See our comments above on the implications of stopping investigations.
c) It could be generally assumed that continued investigation of an admitted point by the claimant following admission on that point will carry adverse cost consequences, to be ordered under the courts general powers at 44.3. Should a specific costs exclusion also be created?
Where a defendant is bound by an admission of liability then there should be no need for a claimant to continue investigating the admitted point. There is therefore no need for any adverse cost consequences save that the claimant cannot recover the costs of further investigations on an admitted point. The current rule under CPR 44.3 is sufficient to deal with this point and no further cost exclusion is required.
2. What constitutes an admission?
a) How strictly should a revised rule circumscribe the form of admission?
To avoid vague admissions it would be appropriate that a revised rule should require that admissions be stated to be Part 14 admissions on liability and should make it clear what issues are admitted and what remain in dispute. This would ensure it is understood that a car driver who at the scene of an accident admits that it was their fault, is not making a binding admission and that investigations into liability should take place.
This would also ensure that a claimant only continues to investigate liability on the issues that remain in dispute, if any, and that defendants have properly considered the issues and carried out their own investigations properly, so that mistakes are not made.
b) Should such a written admission only be applicable if made after receipt of a pre-action letter?
It is not appropriate that written admissions should only be applicable if made after receipt of a pre-action letter as it is not uncommon for claimants to attempt to settle a claim with defendants directly and to receive an admission, but to instruct solicitors where quantum cannot be agreed.
In such cases, where claimants try to settle a claim themselves, liability is often admitted. It would be unfair if a defendant was then able to withdraw the admission once solicitors are instructed. This would also lead to further, unnecessary costs as a solicitor would have to investigate liability afresh.
We suggest that defendants are required to express written admissions as Part 14 admissions. This technical requirement would prevent accidental admissions by the parties to the accident, as with the scene of accident scenario above.
3. Should a test for withdrawal be introduced?
We do not accept that there should be a test for withdrawal in most circumstances. It would be too easy for a defendant to resile from an admission after a test. The only circumstance where a defendant should be entitled to make an application for withdrawal should be where fraud is proven.
A definition of what amounts to fraud needs to be agreed to avoid the defendants relying on minor discrepancies between sums claimed and evidence in support.
4. Specific Defence Situations
a) What should be the consequences of a defence of limitation after an admission being made?
If a claim is investigated properly the defendant will also have investigated limitation. The defendant should not be able to withdraw an admission where they have failed to carry out due diligence in their work. A claimant is not entitled to re open investigations where a claim is settled in error. In such circumstances the solicitor would be negligent.
The defence mindset is to avoid liability. Their investigations will include looking for ways to avoid paying out, so the idea that they will overlook limitation is unrealistic. And if, unbelievably, they have overlooked it, then the only consequence should be for them – they must stick to their admission and take on board the lessons of not properly investigating claims.
b) What should be the consequences if a new defence is exposed?
If a claim is investigated properly then all possible defences should be investigated before an admission is made. There can be no excuse for the defendant who fails to properly investigate.
A claimant’s representative cannot make new allegations, and would be negligent if they had failed to spot a key allegation.
So if a defence is later exposed then the defendant’s representative should also be considered negligent. They cannot withdraw an admission because of their failure.
If there is a change in law which exposes a new defence then a defendant should still be bound by an admission already made.
c) What should be the consequences of a defence which only becomes apparent after an admission had been made (e.g. new evidence)?
Where a claimant compromises a claim, ie on a 50/50% basis, they are then not able to withdraw from that compromise where new evidence comes to light to suggest that they could do better than the compromise. Investigations should be carried out by the defendant insurer before admitting liability and so they cannot resile from that admission or seek to renegotiate the compromise if new evidence does subsequently come to light.
If the new evidence was obtainable prior to the compromise the claimant’s representative would be considered to be negligent for failing to investigate it. A defendant should face the same sanction.
The cases listed below are real cases taken by Thompsons which illustrate the difficulties caused when defendants withdraw admissions of liability both pre and post issue of proceedings.
1. A pilot for a major UK airline suffered tinnitus following an aircraft window shattering above the Atlantic. It was later discovered that the window shattered because of a defect in the glass.
A claim was made against the defendant under the Provision and Use of Work Equipment Act (PUWR) which effectively imposes strict liability. The defendant’s insurer admitted liability almost immediately.
Proceedings started two years later. The defendant then argued that PUWR did not apply because the accident occurred outside of the legal jurisdiction of the UK and applied to resile from the admission of liability. This was granted on the basis that there was an error of law on both sides.
The shattered glass had been replaced and destroyed when the aircraft had returned to the ground. The evidence had therefore gone. Thompsons had to instruct experts to look at contemporaneous documents and perform laboratory tests.
The case settled before forensic lab tests were required. Performing them would have increased costs considerably. The case illustrates the difficulties that early admissions of liability present where the defendant can then resile, by which time evidence has gone cold. By the time the admission was withdrawn, the case was very close to the limitation period, presenting further problems with re-starting investigations.
2. A lecturer at a North East college slipped on grease spilt on the floor in a corridor. He suffered a serious back injury and subsequently took ill heath retirement. The defendant’s solicitors admitted liability pre-preceedings, but denied liability in defence.
Thompsons pointed out the admission and the fact it had been pleaded, but the defendant stood by the denial. By this time almost two and a half years had elapsed since the accident and our client was no longer working at the college, had had no contact with former colleagues and witnesses, and Thompsons had not conducted liability investigations.
Liability was eventually re-admitted almost three years after the first admission.
3. In a claim involving three defendants, the first defendant withdrew their admission of liability the day before limitation. This was after they had confirmed in writing a fortnight previously that they had no intention to resile.
Therefore, at the last minute, the other two defendants had to be added to the Particulars of Claim. Because these were a joint venture, part of which was based in Germany, Thompsons had to first check that proceedings could be served in the UK and then make an urgent application to amend the pleadings for the defendants’ names and the contents.
This was done, adding costs and delay. But when proceedings were served the original defendant decided they no longer wished to resile from their admission of liability. Instead they made a Part 20 claim against the other two defendants.
4. In a claim involving a learning support assistant who suffered a back injury falling on a school sports field, the local authority’s insurer admitted primary liability four months after receiving our letter of claim. An offer to settle was also made, but the claimant rejected this. Nothing more was heard from the defendant until over a year later, after we had submitted full medical evidence and asked for a further offer or the case would be issued.
Several months of correspondence with the insurer then followed, with them repeatedly coming back for more information about medical evidence, the claimant’s earnings and their job situation. Nearly two years after the accident, Thompsons issued the case because still no improved offer was forthcoming.
The Particulars of Claim noted that liability had been admitted. But the defendant’s solicitors have notified Thompsons that they will be filing a defence denying liability on the ground that the defendant’s insurer “made a mistake”. This will be opposed because it is clear that the defendant insurer’s delay in investigating the case, and their subsequent flurry of activity over several months, wasted both time and costs and that liability should have been properly investigated from the outset.
5. A bank worker who slipped on a defective stair and suffered a serious head injury was off work for two years and continues to suffer incapacity. The defendant’s solicitors admitted liability six months later. This meant that Thompsons stopped investigating liability.
Now, just five months before limitation in the case, the defendants have withdrawn their admission. This leaves our client in a very difficult position regarding liability because whatever witness evidence there was has long gone.
6. In a case that illustrates why the decision in Sowerby needs to be clarified, Thompsons experienced problems in a case where admission was withdrawn one month prior to limitation and a defence was instead filed alleging that the claimant was at fault. Thompsons applied to strike out sections of the defence, highlighting the fact that the pre-action protocol specifically states that a pre-action admission of liability is binding in cases not exceeding £15,000.
The defendants said that Sowerby did allow a retraction of liability, we argued that was only so in multi-track cases. However, the District Judge agreed with the defendant.