By Bronia Hartley
Whether you are making or defending an application to resile from a Portal admission, here are a few rules, recent cases and pointers to remember:
- Applications to resile from a Portal admission are made under CPR 14.1B:
Admissions made under the RTA Protocol or the EL/PL Protocol
(1) This rule applies to a pre-action admission made in a case to which the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (‘the RTA Protocol’) or the Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (‘the EL/PL Protocol’) applies.
(2) The defendant may, by giving notice in writing withdraw an admission of causation –
(a) before commencement of proceedings –
(i) during the initial consideration period (or any extension to that period) as defined in the relevant Protocol; or
(ii) at any time if the person to whom the admission was made agrees; or
(b) after commencement of proceedings –
(i) if all the parties to the proceedings consent; or
(ii) with the permission of the court.
(3) The defendant may, by giving notice in writing withdraw any other pre-action admission after commencement of proceedings –
(a) if all the parties to the proceedings consent; or
(b) with the permission of the court.
(4) An application under rule 14.1B(2)(b)(ii) or (3)(b) to withdraw a pre-action admission must be made in accordance with Part 23.
- 14PD.7.2 provides that in deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case including:
(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led the party making the admission to do so;
(c) the prejudice that may be caused to any person if the admission is withdrawn;
(d) the prejudice that may be caused to any person if the application is refused;
(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and
(g) the interests of the administration of justice.
- Note the clear resemblance between the above list of matters and the list of matters to which the court had to have regard when considering an application for relief from sanctions under the old CPR 3.9.
- The status of the Protocol must be remembered:
‘Whereas normally the rules of court rank first and the protocols last here the process is reversed. The Protocol is the most important: the rules and practice direction exist to support the Protocol rather than the other way round.’
- In Philip Cavell v Transport for London  EWHC 2283 (QB), in relation to the final consideration within the list set out in the Practice Direction (“interests of the administration of justice”), Mr Justice Davis said:
“It cannot be in [the interests of the administration of justice] to permit the withdrawal of an admission made after mature reflection of a claim by highly competent professional advisors when there is not a scintilla of evidence to suggest that the admission was not properly made. Were it to be otherwise civil litigation on any sensible basis would be impossible.”
- In the County Court case of Wahid Ullah v Fazel Jon (Croydon County Court, 20th March 2013) the court considered an application to resile from a Portal admission. The District Judge in that case said the following in relation to public interests:
“…there has to be a public interest in bringing finality to proceedings, particularly where a rigorous and tightly drawn set of rules and regulations have been set up to enable a quick and relatively cheap way of resolving these issues and I find this is an important element of this case.”
- Remember that the post-April 2013 regime has universal application to all rules in the CPR and is based on and underpinned by the changes in the overriding objectives which apply to all parts of the Civil Procedure Rules:
(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.
(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –
(a) ensuring that the parties are on an equal footing;
(b) saving expense;
(c) dealing with the case in ways which are proportionate –
(i) to the amount of money involved;
(ii) to the importance of the case;
(iii) to the complexity of the issues; and
(iv) to the financial position of each party;
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders.