Change in substantive law not enough for withdrawal of pre-issue admission for local authority

The Court of Appeal has approved the dismissal of an application to withdraw pre-issue admissions made 7 years after those admissions were made. After considering all of the circumstances and all of the individually prescribed factors listed in CPR Practice Direction 14 in full the Court of Appeal considered that it would not be just to allow the admissions to be withdrawn.

The Court of Appeal were considering the appeal in the claim J (by his litigation friend, Official Solicitor to the Senior Courts) v A South Wales Local Authority [2021] EWCA Civ 1102. Following a claim brought by a juvenile, the Local Authority had in 2012 admitted breach of a common law duty and that the breach had prevented appropriate actions being taken under the local authority’s statutory duties for child protection. The claimant had relied on that admission in its Particulars and the Local Authority had not responded to the allegations on breach in its defence referring to the admission. The Local Authority had then proposed a stay which was agreed until the claimant was 16 years old to allow the impact of the breach to be assessed. The Local Authority recognised that it had a duty to act in the best interests of the claimant under its statutory duty owed to the claimant it was now exercising. A further stay was proposed in 2018 to allow for the Supreme Court decision in the relevant case of CN and GC v Poole BC [2019] UKSC 25.

The decision in CN confirmed that unless there had been an assumption of responsibility there was no common law duty arising from local authorities’ statutory duties, so the Local Authority applied under CPR 14 to withdraw its pre-issue admission, 7 years after they were made. The application was originally granted in the County Court, with reference to the factors listed in CPR PD 14 paragraph 7.2. This decision was reversed by the High Court based on the failure of the County Court decision to consider all of the circumstances and give due weight to the circumstances in several of the individually listed factors.

The Court of Appeal in a decision lead by Lord Justice Lewison agreed with the High Court that the decision of whether to allow the admission to be withdrawn had not stepped back and considered all the circumstances and that several of the individual circumstances had not been considered fully.

• The prejudice to the claimant from the withdrawal had not been fully considered. The claimant had relied on the admission during the repeated and significant stays proposed by the Local Authority. If the stays had not been proposed, the claimant would have applied for judgment to be entered and be in a stronger position despite the change in substantive law.
• The claimant could also be prejudiced from lack of opportunity to investigate breach during the delay of 7 years. As the Defence had referred to the admission and not pleaded a defence to the allegations the Court could not properly assess the prejudice to the claimant from the delay. Neither was there any evidence before the court of the preservation of evidence.
• The interests of the administration of justice was not considered fully. Although the substantive law had changed to remove the cause of action in law against the Local Authority in principle, there was the exception that the Local Authority could have assumed responsibility. The County Court decision based on the admission resulting in an untenable result against the Local Authority was not certain and had been given undue weight.
• The County Court decision had not then stepped back and considered all the circumstances when deciding whether to allow the admission to be withdrawn. Both the High Court and the Court of Appeal found that taking all of the circumstances into account, it would not be just to allow the admission to be withdrawn.

The purpose of CPR Part 14 is to give security to a party relying on admission while balancing that security with the qualified ability for admissions to be withdrawn. The test listed in CPR PD 14 paragraph 7.2 includes the familiar phrase “have regard to all the circumstances”, then goes on to list specific factors to consider. When considering whether an admission will be permitted to be withdrawn, both the parties and the court need to consider all of the specific factors and then step back and consider all of the circumstances together. This case also involved particular circumstances that complicated the consideration of the individually listed factors, such as the conflict of the local authority defendant also owing a duty to the claimant for his welfare as a minor. In addition, the significant delay in the claim being progressed and the reason for it also impacted on the claimant’s ability to have judgment entered or to investigate breach.

This decision highlights that a change in substantive law will not necessarily save a related admission, and that the consideration of individual factors should be considered against all of the circumstances of the claim.