Sowerby v Charlton
| Jurisdiction | England & Wales |
| Judge | Lord Justice Brooke |
| Judgment Date | 21 December 2005 |
| Neutral Citation | [2005] EWCA Civ 1610 |
| Docket Number | Case No: A2/2005/0476 |
| Date | 21 December 2005 |
| Court | Court of Appeal (Civil Division) |
[2005] EWCA Civ 1610
Sir Anthony Clarke, Master of The Rolls
Lord Justice Brooke
Vice-President, Court of Appeal (Civil Division) and
Lord Justice May
Case No: A2/2005/0476
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Judge Playford QC
Master Tennant
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Lynagh QC and David Platt (instructed by Kennedys) for the Appellant
Paul Rose QC (instructed by Leigh Day) for the Respondent
This is the judgment of the court.
This is an appeal by the defendant from an order of Judge Playford QC, sitting as a High Court judge in the Queen's Bench Division on 25 th February 2005, whereby he dismissed an appeal against an order of Master Tennant dated 20 th December 2004. Master Tennant, for his part, had struck out paragraphs 4 and 8 of the Defence in this action and directed that judgment be entered for the claimant on liability. He also directed that the issue of contributory negligence should be tried as a preliminary issue and gave timetabled directions for the trial of that issue. Because the Master did not give a reasoned judgment, the judge conducted the appeal by way of a re-hearing. At the end of the hearing of the appeal, we said we would be dismissing it, for reasons to be given later. These are our reasons.
This action arises out of the catastrophic personal injuries the claimant suffered on the evening of 26 th April 2003 when she was visiting a property in Richborne Terrace, Vauxhall, in South London. The front door of the property is at a higher level than the pavement, and one has to go up eight stone steps to the platform outside the front door. There is a handrail on the left hand side of the steps but not on the right. To the right hand side of the front steps are steps leading down to a basement flat. On each side of the front steps there is a very low stone pediment, about one and a half to two inches high.
On the evening in question the claimant appears to have fallen over the edge of the platform outside the front door a distance of at least eight feet onto the hard surface (or the stone steps) below. She was rendered paraplegic as a consequence of her accident.
On 23 rd October 2003 her solicitors wrote a letter of claim. The defendant's insurers responded on 12 th November, seeking details of the claim. They then passed the matter to their solicitors. After an exchange of correspondence, the claimant's solicitors sought a decision on liability, to which the defendant's solicitors responded to the effect that their insurance clients were awaiting their reinsurers' view on primary liability. Eventually, on 10 th May 2004 the defendant's solicitors stated in a "without prejudice" letter:
"Having investigated this claim the Defendant is prepared to admit a breach of duty."
They then made a proposal for settlement of the contributory negligence issue.
The claimant's solicitors responded on 13 th May 2004, asking that the position in relation to liability be confirmed in open correspondence, and seeking a substantial interim payment. In a later letter they rejected the settlement proposal and asked that the breach of duty be openly admitted. On 30 th June the defendant's solicitors re-dated their letter of 10 th May and re-sent it to the claimant's solicitors, this time as an open letter.
Proceedings were then started, and the defence was filed and served on 24 th September 2004. Primary liability was put in issue. It is now accepted on the defendant's side that the decision to admit liability had been an informed one, taken by solicitors who advised their insurance client after taking into account the views of the reinsurers. The defendant, however, withdrew the admission after junior counsel had given certain advice.
The matter then came before Master Tennant on 20 th December on an application by the claimant to strike out these paragraphs of the defence. Master Tennant granted this application, and the judge upheld his decision on the first appeal. In granting permission for this second appeal Rix LJ commented that the scope of CPR 14.1 raised an important point of practice on which there was no CPR authority and some debate at first instance.
The question we have to decide arises in this way. In the closing years of the pre-CPR procedural regime this court held that the language of RSC Order 27 rule 3 (which referred to an "admission of fact…made by a party…either by his pleadings or otherwise") was capable of embracing admissions made before the relevant action was started. Although we now have an entirely new procedural code, which blends features of the former High Court and county court regimes and possesses many new features, this court has never had the opportunity of stating authoritatively whether the language of the successor rule, CPR 14.1, is capable of being interpreted in the same way. This has led to a good deal of uncertainty in the lower courts.
In Biguzzi v Rank Leisure plc [1999] 1 WLR 1926 Lord Woolf MR stressed the fact at p 1932E that the Civil Procedure Rules were a new procedural code. At p 1934G he said that earlier authorities were no longer generally of any relevance once the CPR applied. He commended the judge in that case for declining to look back to the old rules in order to interpret the new rules, and for doubting whether any of the old authorities could assist him in interpreting the CPR (see pp 1930G-1931B and p 1934 D-G) . We should therefore go straight to the provisions of the new procedural regime. If the answer to the issue identified in para 8 above is clear, we will not be helped by considering the pre-CPR case-law.
Under the new regime some provision is made for pre-action activity, and its underlying philosophy is to promote the settlement of disputes without the need to institute legal proceedings. Thus Parliament has widened the scope for applying to the court for compulsory pre-action disclosure of documents (see Supreme Court Act 1981 s 33 and County Courts Act 1984 s 52) , and the new arrangements for pre-action protocols are intended to further the exchange of information in an orderly way so that each side can appraise the strengths and weaknesses of their position in a sensible way before deciding whether litigation is inevitable. Although there is no legal entitlement to recover the costs of pre-action negotiations, CPR Part 8 provides an entirely new procedure for instituting "costs-only" proceedings when the parties agree to settle a claim but cannot reach agreement about costs. Similarly, CPR 3.1(4) and (5) give teeth to the pre-action protocols by enabling the court (after an action has been brought) to take into account any failure to comply with a pre-action protocol in any case-management orders it may make.
But these provisions, welcome as they are, cannot disguise the fact that the CPR are principally concerned with the regulation of cases after an action is started. They do away with the old language of a "cause or matter" and speak of a "case". There is a definition of the phrase "statement of case" in CPR 2.3(1) . Its primary meaning is "a claim form, particulars of claim where these are not included in a claim form, defence, Part 20 claim, or reply to defence". "Particulars of claim" must be verified by a statement of truth ( CPR 22.1(1) (a)) , and when they are served, they must be accompanied by a "response pack" containing three forms – a form for defending the claim, a form for admitting the claim and a form for acknowledging service ( CPR 7.8 (1)) . This new rule represents an amalgam of former High Court and county court procedure.
CPR 9.2 provides that when particulars of claim are served on a defendant, the defendant may file or serve an admission in accordance with Part 14, or file a defence in accordance with Part 15 (or do both, if he admits only part of the claim) . Alternatively he may file an acknowledgement of service in accordance with Part 10 (which in turn provides that he may file an acknowledgement of service if he is unable to file a defence within the period specified in CPR 15.4 or if he wishes to dispute the court's jurisdiction: see CPR 10.1 (3)).
CPR Part 11 prescribes the procedure for disputing the court's jurisdiction; CPR Part 12 is concerned with the procedure for default judgments; and CPR Part 13 contains the procedure for setting aside or varying default judgments. This survey of Parts 9–13 contains the backdrop against which CPR Part 14 ("Admissions") is set. CPR 14.1 provides:
"(1) A party may admit the truth of the whole or any part of another party's case
(2) He may do this by giving notice in writing (such as in a statement of case or by letter."
CPR 14.1(3) permits a defendant to make admissions of various kinds where the only remedy which the claimant is seeking is the payment of a sum of money. It foreshadows the more detailed provisions of CPR 14.4 to 14. 7. CPR 14.1(4) gives the claimant a right to enter judgment when any such admission is made, save in certain clearly identified circumstances. Finally, CPR 14.1(5) provides:
"(5) The court may allow a party to amend or withdraw an admission."
CPR 14.2 prescribes the period within which an admission relating to a money claim must be made if the claimant is to be prevented from obtaining a default judgment. CPR 14.3 is concerned with a judgment on an admission which is not entered as of right. It provides:
"(1) Where a party makes an admission under...
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