Withdrawing from an admission of liability

Background

An NHS trust receives a letter of claim setting out allegations of negligence in relation to care provided. An internal investigation is carried out and the reviewing clinician is critical of the treatment. The letter of response admits negligence. This 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. In light of 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, but liability has already been conceded on the basis of an internal investigation…

The Civil Procedure Rules (CPR)

After proceedings have been commenced, an admission of liability can only be withdrawn with the permission of the court. When considering whether or not to grant permission, the judge is required to consider a checklist set out in the CPR, Practice Direction 14, Section 7.2 as follows:

(a) The grounds upon which the admission is to be withdrawn including whether or not new evidence has since come to light.

(b) The parties’ conduct.

(c) The prejudice that may be caused if the admission is withdrawn or if it is refused.

(d) The stage in the proceedings at which the application to withdraw is made.

(e) The prospects of success of the claim if the admission is withdrawn.

(f) The interests of the administration of justice.

Applying the rules

In exercising their discretion, different judges have placed emphasis on different parts of the checklist, unsurprisingly arriving at conclusions that do not appear consistent. This lack of consistency makes predicting the outcome of any individual application 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 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. It was also felt to be important that the application to withdraw was brought early on in the proceedings.

However, in the case of 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 and found that the defendant had delayed bringing the application for three months.

In a case dealt with recently by Hill Dickinson, the defendant filed an application to resile from an admission made three years earlier. Unfortunately, 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, namely the loss of a potentially bona fide defence. However, when considering the stage of proceedings, 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 an expert report at the outset and so on balance, it was in the interests of the administration of justice to refuse the application.

Guidance

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 dont’s:

Do

• think carefully before making admissions: has there been a 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