Judge: Deputy District Judge Jones
Counsel: Adam Clemens for the Claimant, Jamie Clarke for the Defendant
Solicitors: Russell-Cooke for the Claimant, Plexus Law for the Defendant
The Defendant (D) made an application to withdraw their pre-action admission of liability. In response the Claimant (C) made a cross-application for judgment to be entered. D's application was refused and judgment was entered for C. The claim was then settled on a global basis.
This is an occupier's liability claim in relation to an accident which occurred on 09/05/2012. C was a football coach and hired a pitch at D's grounds for the purpose of providing training sessions. He had suffered a de-gloving injury to his left ring finger when climbing a fence to retrieve a football that had become caught in netting at the top of the fence. It was alleged by C that the netting, which was supposed to be taut and bounce the balls back onto the pitch, had been allowed to become loose and sagging, forming a trap for the balls. It was alleged that D had been requested to fix the netting but had failed to do so. No alternative method for retrieving the footballs had been provided and D was aware that users of the football pitches climbed the fence in order to retrieve footballs that had become stuck.
A Letter of Claim was sent to D on 18/10/2012. D's Claims Handling Agents responded to the Letter of Claim on 29/01/2013 accepting breach of statutory duty and raising the issue of contributory negligence. An offer was made by the Defendant at 70%, allowing for 30% contributory negligence by the Claimant .
C wrote to D requesting disclosure of documents so that the issue of contributory negligence could be considered. No documents were provided by D and they replied withdrawing their previous offer on contributory negligence and making a further offer on liability at 50:50.
Again C wrote to D requesting documents and D responded with a reiteration of their admission and stating that they relied on the cases of Poppleton v Trustees of the Portsmouth Youth Activities Committee (2008) EWCA Civ 646 and Baldaccino v West Wittering Estate plc (2008) EWHC 3386 (QB). They provided no documents supporting an allegation of contributory negligence.
C issued proceedings on 21/03/2013 and served these on 16/07/2013. Plexus Law were instructed by D to take over conduct of the matter from the Claims Handlers.
When D served its Defence it denied breach of statutory duty and/or negligence. C immediately wrote to D reminding them of the earlier admission. There was no further correspondence from D by way of response.
On 18/12/2013 D made an application to the Court requesting permission to withdraw its pre-action admission of liability. The application stated that the admission had been made on a misunderstanding of the law. D accepted that the Claims Handling Agents were aware of the facts of the case but alleged that their advice had been incorrect and that an admission had been made in error.
On 06/01/2014 C made a cross application for judgment to be entered.
Both applications were heard on 16/01/2014. CPR 14 PD 7.2 applied and sets out the considerations that the Court should apply when making a decision about such applications.
Counsel for D relied on prejudice and merits in his submissions. It was stated that if D's application were allowed C would have to prove his claim as he would have in any event due to the allegation of contributory negligence. It was suggested that there would be no lost evidence or witnesses, due to the relatively short passage of time, and C would still have to address all issues at trial to rebut the contributory negligence allegation. The prejudice to D was due to the misrepresentation of law by the claims handler. D had been denied the opportunity to defend the claim and considered that there were good prospects of defending the matter.
Counsel for C submitted that the admission of primary liability should stand. There were three separate occasions where D had documented the admission in correspondence. No proper explanation had been given by the Defendant for their change of mind. D had not put forward any evidence as to why the Claims Handling Agents admission had been made incorrectly and why they had been wrong in their assessment of the law.
C's counsel submitted that C had stopped investigations into liability upon receipt of the admission. There had been no documentation from D supporting their contention on the issue of contributory negligence. There had been a 7 month delay between the original admission in January 2013 and the denial of liability in the Defence served in August 2013.
Summary of Judgment
The Court considered the grounds for withdrawal of a pre-action admission under CPR 14, as set out in PD14 7.2.
D conceded that this was not a case where new evidence had come to light. D did not raise the issue of the parties conduct. D's submission was that the Claims Handling Agents had misapplied the law and once proceedings were issued and the matter was referred to Plexus Law "proper consideration" was given to the matter and a Defence was filed. D's application focussed primarily on the prejudice that it would suffer if it was denied the opportunity to defend the claim.
As contributory negligence was in issue, D argued that many of the matters that C had to prove would be covered in a contributory negligence trial in any event. It was recognised that there could be a prejudice to C in the delay between admission and the initial denial, however this was only a period of 5 - 7 months, and the Court did not consider that any evidence would be lost to C due to the delay. Documentation should still be available that would show the state of the premises and risk assessments from the time of the accident.
The Court did have in mind that C was aware that that an admission had been made and relied upon the same.
Regarding the issue of prospects of success, the Court considered that it was incumbent on D to provide evidence as they were making the application. D had not provided any evidence dealing with the merits of their Defence. It had not served any evidence explaining the error that had been made by the Claims Handling Agents.
The Court did not consider that D had satisfied the criteria set out in CPR 14 PD 7.2 allowing permission to be granted for the withdrawal of the pre-action admission.
D's application was refused, and judgment was entered in favour of C, with recognition that the issue of contributory negligence needed to be assessed at trial.
D was ordered to pay C's costs of the application.
In September 2013 D made an offer to settle the claim in the sum of £6,000. This was rejected and C put forward a counter offer in the sum of £18,000.
Following the unsuccessful application D agreed to settle the claim in the sum of £18,000. The offer had been made on a global basis however instructing solicitors could break it down as follows:-
The Claimant suffered a de-gloving injury to the left ring finger. He required extensive physiotherapy and future surgery: £9,000
The Claimant's special damages included past loss of earnings, past care, medical expenses, travel expenses, future surgery, future loss of earnings, future care, future travel and a Smith v Manchester award. As the Claimant has incomplete flexion and extension in the finger this would require surgery in the form of flexor and extensor tenolysis. His position on the open labour market as a football coach would be affected: £9,000
D also agreed to pay C's costs of the case, which had been run under a Conditional Fee Agreement.
Case submitted by: Sarah Towler, Russell-Cooke