Pre-Action Admission Warning

Article

02 September, 2015

Cavell -v- Transport for London [2015] EWHC 2283 (QB) QBD (William Davis J) 30/07/2015

In this matter, the defendant Transport for London (TfL) applied to withdraw a pre-action admission of liability in a personal injury claim brought by a cyclist.

Mr Cavell alleged that he had sustained a personal injury following an accident where he had fallen off his bicycle in October 2011 because of a defect in the roadway. After various email exchanges, the firm acting on behalf of TfL admitted liability subject to causation in March 2014.

The admission of liability was pleaded as part of the claimant's case. When eventually the Defence was served in February 2015 notice was given that the admission would be withdrawn with the Court's permission.

In the Defence it was pleaded that the admission was not an admission of liability. The precise terms of the admission were as follows: "Please note liability will not be an issue, subject to causation." The Judge took the view that it was "clearly an admission of liability".

The grounds for the application were as follows:

  • the admission should not have been made because there was no contemporaneous evidence to support it, the defendant had a strong case on liability and it would be unjust to deprive it of its defence because of an error by the firm;
  • if the highway was defective, the responsibility for the defect must lie with the contractor responsible for inspection and repair. If the admission cannot be withdrawn, the defendant will not be able to claim any contribution or indemnity from that contractor.

The Judge refused to allow the pre-action admission of liability to be withdrawn, stating that neither ground had merit, he went on to comment that the admission was made after mature reflection of a claim by highly competent professional advisors and there was no evidence to suggest that the admission was not properly made.

Furthermore, the Judge remarked that under the Civil Liability (Contribution) Act 1978, TfL would have to prove the defect, something which the cyclist could assist with. TfL was therefore not prevented from obtaining a contribution or indemnity if the admission was not withdrawn.

Forbes comment

Notably this case confirms that an admission of liability "subject to causation" is still an admission. When making an admission, either pre or post action, parties must ensure the wording is drafted carefully.

If an application to withdraw a pre-action admission of liability becomes necessary, the parties must be mindful that whilst most cases will rest on its own facts, following the earlier case of Woodland v Beryl Stopford and others [2011] EWCA Civ 266 without new evidence or a sufficient explanation for the incorrect admission, judges will be reluctant to allow admissions to be withdrawn. For further advice please contact Sarah Wilkinson

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