Gale v Superdrug Stores Plc
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WAITE,LORD JUSTICE MILLETT,LORD JUSTICE THORPE |
| Judgment Date | 25 April 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0425-4 |
| Docket Number | CCRTI 95/0302/G |
| Court | Court of Appeal (Civil Division) |
| Date | 25 April 1996 |
[1996] EWCA Civ J0425-4
Lord Justice Waite
Lord Justice Millett
Lord Justice Thorpe
CCRTI 95/0302/G
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
(HIS HONOUR JUDGE WROATH)
Royal Courts of Justice
Strand
London WC2
MR N VINEALL (Instructed by Messrs Lawrence Graham, London WC2R 1JN) appeared on behalf of the Appellant
MR M SOOLE (Instructed by Messrs Blake Lapthorn, Hampshire PO15 5UA) appeared on behalf of the Respondent
Thursday, 25 April 1996
This appeal is brought by the defendants to a personal injury action arising out of an accident suffered by the plaintiff while she was in their employment. Well before any proceedings were started, an admission of liability in correspondence by their insurers was followed up by an interim payment on account of damages. Negotiations continued on issues of quantum only. When, however, the plaintiff issued a county court summons shortly before expiry of the limitation period to prevent her claim becoming time-barred, the defendants filed a defence denying liability. That defence was struck out on the plaintiff's application by the District Judge. On 1 November 1994 an appeal from that order was dismissed by His Honour Judge Wroath, sitting in the Portsmouth County Court. From that dismissal the defendants by leave of this court now appeal.
THE LEGAL AND PROCEDURAL BACKGROUND
There is no equivalent in the County Court Rules to RSC Order 27 Rule 3, and there was initially some doubt as to whether it would have been possible for the plaintiff to raise her objection to the defendant's change of stance by any means other than the one she chose, namely an application to strike out the defence as an abuse of the process. Counsel have spared us the need to resolve that doubt by agreeing that the issue, regardless of the procedure by which it was (or might have been) raised, was one that required the county court to apply to it the same principles as those on which the court acts in cases where a defendant in High Court proceedings seeks leave to amend or withdraw an admission which has provided the basis for a motion by the plaintiff for judgment under Order 27 Rule 3. That provides as follows:
"3. Where admissions of fact or of part of a case are made by a party to a cause or matter either by his pleadings or otherwise, any other party to the cause or matter may apply to the Court for such judgment or order as upon those admissions he may be entitled to, without waiting for the determination of any other question between the parties and the Court may give such judgment, or make such order, on the application as it thinks just."
It is common ground between counsel that the discretion conferred by that rule is wide enough to allow the court to entertain an application by the defendant to resile from his admission—by amendment if it was made in a pleading, or by withdrawal if it was made in correspondence. Their researches have disclosed surprisingly little authority, however, as to the principles on which such leave may be granted or refused. The side-note at 27/3/8 of the Supreme Court Practice refers to the decision in this court of Bird v Birds Eye Walls Ltd on 21 July 1987 reported only in the Times for 24 July 1987. Since that was a case which featured prominently in argument both before the judge and in this appeal, it will be necessary to refer to it in a little detail. It was a consolidated personal injury claim for RSI brought in the county court by five cake-makers employed by the defendants. The defence contained a denial of negligence, and there was no allegation of contributory negligence. Shortly after the close of pleadings, an expert instructed by the plaintiffs called by appointment at the defendants' factory to inspect the conditions under which the plaintiffs had been working. On arrival he was told that the defendants were no longer disputing liability, and no inspection would therefore be necessary—an assurance that was confirmed in writing by the defendants' solicitors a few days later. Correspondence followed in the usual way about special damages and medical reports, and on 27 January 1986 the action was set down for trial by order of the court on the issue of quantum only. That hearing was duly listed for the end of July 1986. Four weeks before the hearing, the defendants' solicitors wrote to the plaintiffs' advisers stating that there had been a change of policy dictated by senior management which forced them now to withdraw their admission of liability, for which they apologised. The plaintiffs gave notice that they would make a preliminary application at the hearing to dispute the right of the defendants to retract their long-standing admission. They duly did so, and the judge, having heard preliminary submissions from both sides, directed adjournment of the plaintiffs' objection for further consideration, but directed that experts' reports should be obtained in the meantime. At the adjourned hearing he ruled against the plaintiffs' objection, holding that the admission had not resulted in any such prejudice to the plaintiff as required the judge to refuse to permit the defendants to resile from it, and the trial accordingly proceeded.
On appeal to this court (Ralph Gibson LJ and Sir George Waller) the judge's ruling was over-turned. Although the appeal had been argued in part on the basis of estoppel, Ralph Gibson LJ preferred to state his reasons for granting the appeal on broader grounds. He said:
"It is not necessary to formulate precisely what the test would be, but I think that Mr Methuen, in what, if I may respectfully say so, was an admirably brief and cogent submission, said what is close to being what is right, i.e. that when a defendant has made an admission the court should relieve him of it and permit him to withdraw it or amend it if in all the circumstances it is just so to do having regard to the interest of both sides and to the extent to which either side may be injured by the change in front."
A little later he continued:
"This was a formal admission made after a fully pleaded case in every respect. There had been ample time to investigate the matter. The consequence of the admission was to stop the plaintiffs completing their investigations at a time which, as Mr Methuen has pointed out, was somewhat delayed from December 1982 to a date in the late summer of 1984, but nevertheless much closer to the relevant events than would be possible after the period which followed the admission of liability.
It seems to me that there plainly was some risk of damage to the plaintiffs' cases. They had to start investigating after considerable delay. They had to see what sort of documents they got on the delayed discovery and start looking for any relevant witnesses whose evidence would appear to be useful and relevant after the investigation had been carried out. Those were the matters which I think should have been before the court on 31st July. There would inevitably be further delay if leave was given: delay required by the investigation, exchange of reports etc.
Into that balance must be taken the disappointment of plaintiffs who have for a substantial period of time supposed that the only issue in the case was the proper compensation for them to receive for the injuries which they say they have suffered and the fact that they would inevitably be kept out of that compensation for a further period of time. Asked to give leave in those circumstances, as it seems to me, the court must look to the explanation which the applicant offers for wishing to change his position.
I am not for my part greatly impressed by reference to the defendants not having indicated any defence. I think some arguable defence was indicated in the terms of the expert's report which they produced. As my Lord Sir George Waller pointed out in the course of argument, however, this was clearly a finely balanced case upon which rationally experienced insurers could decide at one point to admit liability and at another seek to argue it. Where liability is of that nature and turns upon an assessment so balanced as that, in my view it adds weight to any indication of impairment to the case of the plaintiffs by the delay which had been caused by the admission and the attempt to change the attitude of the defendants.
More importantly, as I think, some explanation is necessary. If a mistake has been made the court would in my view tend to the view that the victim of the error must be relieved if the other side can be properly protected. If some new evidence has been discovered which puts a different complexion on the case, that is in the nature of mistaken assessment of the case. For my part I would be anxious to assist a party who has made an honest error and not hold that party to a liability which, if the error had not been made, he would not have been under.
The only explanation tendered in this case, as we are told, is that there had been a decision in November 1984 made by insurers on economic grounds that they would not fight these cases, i.e. the amount which they might expect to have to pay was such that it was not worth incurring the costs of fighting the issue of liability and having it decided by the court. It was said that that decision had been made without the knowledge of the parent company of these defendants, Unilever, and that in July, shortly before the hearing date, it was discovered that the admission had been made and there was a decision to depart from it.
Speaking for myself, having regard to all the other factors, I cannot regard that as...
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