Summary of Recent Cases – Civil Procedure

Permission to withdrawal a pre-action admission in the absence of an emergence of fresh evidence

Rachel Woodland (by her father and litigation friend Ian Woodland) v (1) Beryl Stopford (2) Deborah Maxwell (3) The Swimming Teachers Association, CA, 16/03/11

The court refused the Claimant’s application to overturn the Courts decision to permit a withdrawal of an admission of liability by the Third Defendant. The Claimant suffered a brain injury in an accident at a swimming pool in July 2000 and brought a claim for damages that was estimated at between £2-3 million. In November 2007 liability was conceded 4 years after a report had been completed which suggested that the lifeguard at the pool had been negligent. However in July 2009 the admission of liability was retracted with no reasons given for the grounds for withdrawal. The judge accepted that the application was not made on the emergence of fresh evidence but upon the re-appraisal of what was already known. Though there had been a delay of 10 years since the accident the judge accepted that up until May 2007 the delay was not the fault of the Defendant. CPR 14.1A(3) conferred a wide discretion on the court to allow the withdrawal of a pre-action admission and it was important the court took into account all the circumstances of the case. Though sometimes the lack of new evidence and lack of explanation might be important factors in directing the court, in other cases the prejudice to the other side would provide a clear answer.

A Claimant could advance an alternative case based on the Defendant’s version of what happened, even if that version was denied by the Claimant.

(1) Kathleen Veronica Bleasdale (2) John Cariss v Deborah Jane Forster, QBD (Ch), 16/03/11

Permission was given to allow the Claimant to amend their Particulars of Claim to include an averment, on an alternative basis, that she was induced to make an investment by a representation that she denied had ever been made. Though it appeared at first sight that a Claimant could not properly advance a claim in misrepresentation where his primary case was that the representation in question had never been made to him, further reflection by the court suggested that a Claimant could be free to advance an alternative case based on the Defendant’s version of what happened, even if that version was denied by the Claimant. It was always open to the court to dispense with the verification by a statement of truth where the statement of case was amended (CPR rule 22.1(2)) and secondly the requirement of a statement of truth did not necessarily prevent a party from advancing a case which depended on an allegation which he believed to be untrue so long as there was a proper evidential basis for the allegation.

Permission to amend a statement of case refused when the new case advanced was inherently implausible.

(1) Carey Group Plc (2) PJ Carey (Contractors) Limited (3) PJ Carey Plant Hire (Oval) Limited (4) Seneca Environmental Solutions Limited v (1) AIB Group (UK) Plc (2) National Asset Management Agency,16/03/11 QBD (Ch)

The court refused the Claimant permission to amend their statement of case. The Claimant had offered no support for their new case by reference to any contemporaneous documentation suggesting only that disclosure of documents by the Defendant was likely to substantiate their new case. The court was not obliged to treat the mere assertion of a new case in a witness statement as other than fanciful if the only evidence provided for its inconsistency with the case previously advanced was on its face, inherently incredible or manifestly inadequate.

An expert who had been privy to confidential and privileged information from the Claimant was not debarred from acting for the Defendant

Meat Corporation of Namibia Limited v Dawn Meats (UK) Limited, QBD (Ch), 07/03/11

A Claimant’s application that the Defendant be debarred from calling an expert on the basis that she was in possession of confidential and privileged information concerning the Claimant was refused. It was held that the relationship between the Claimant and the expert was not of the order that she should be equated with a solicitor for the purposes of the litigation. It was neither necessary nor appropriate to treat the relationship as one between a solicitor and a client. The expert had never been engaged to do anything, and had received the privileged information in the course of enquiries as to whether she would act as an expert. It could not be said that her interaction between the parties came anywhere near to creating the sort of connection which would imperil her independence on the evidence before the court at present. There was nothing however to stop the Claimant from challenging the degree of her independence in cross-examination at trial.

April 1, 2011 · Editorial Team · Comments Closed
Posted in: Cases