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Sowerby v Charlton (2005)

Sowerby v Charlton (2005)

Court of Appeal
Date: 21/12/05

The Issues: The Claimant had suffered catastrophic injuries following an accident on the defendant’s property. Before the issue of multi-track proceedings, the Defendant had admitted liability in an open letter, but subsequently withdrew the admission following the issuing of proceedings. The Claimant wanted to rely on the pre-action admission of liability and thereby strike out parts of the defence. The previous rules (RSC O.27 r.3 – by that time superseded) governed both pre action and post action admissions. Did r.14.1 (current in 2005) do the same?

Held: There was provision under the CPR regime for pre-action activity in the form of pre-action protocols and pre-action disclosure, but the CPR are principally concerned with the regulation of cases after proceedings have been issued. The CPR had been carefully drafted and there seemed no intention that a pre-action admission of liability would be included in the wording of CPR 14.1(1). A party's case was not formally set down until the claim form or particulars of claim were prepared, and a person did not ordinarily become a party until legal proceedings had been issued. Furthermore the presumption in the Personal Injury Pre-Action Protocol that a pre-action admission was binding, was not intended to apply to multi-track claims. There was express recognition in para 2.9 of the Protocol that letters of claim and responses were not intended to have the same status as a statement of case in proceedings.

Comment: The CPR were amended in the 44 th update (r.14.1A) so that where a pre-action admission is made after 6 April 2007, and after receipt of a letter of claim in accordance with the personal injury pre-action protocol, this admission can only be withdrawn:

  • with the consent of the Claimant before the issuing of proceedings, or
  • where proceedings have been issued with the consent of all parties to the proceedings, or with permission of the Court.

Paragraph 1.1(2) of the relevant Practice Direction states that although the personal injury pre-action protocol is “primarily designed” for those claims of less than £15,000, the protocol applies generally to all personal injury claims. It therefore seems that r.14.1A applies to both fast and multi-track claims.

The decision in Sowerby is therefore unlikely to affect any pre-action admission made after 6 April 2007, but will continue to be applicable to an admission made before this date.

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