ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
HIS HONOUR JUDGE HOLMAN
(Sitting as a Judge of the High Court)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE MOORE-BICK
| Annie Rachel Woodland
(by her father and litigation friend Ian Woodland)
|- and -
|(1) Beryl Stopford
(2) Deborah Maxwell
(3) The Swimming Teachers Association
WordWave International Limited
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Official Shorthand Writers to the Court)
Mrs Wendy Outhwaite QC (instructed by Fishburns Solicitors ) for the respondent
Hearing date: 24th February 2011
Crown Copyright ©
Lord Justice Ward:
The events leading to the admission of liability
Our Principals : ASSITALIA/SWIMMING TEACHERS ASSOCIATION
Your Client : Miss A.R. Woodland
Incident : 5th July 2000
We confirm our involvement as claim handlers on behalf of our principals Assitalia and have been passed your correspondence of 22nd March 2001 to Mrs B. Stopford. …"
"Ms Burlinson and Ms Maxwell will say that your client was in the pool for no more than 15 seconds before she was discovered.
We enclose the Health and Safety report dated 11th May 2001 which outlines the matter and confirms the procedures that should be in place, which of course were at the time, and does not recommend any amendments.
We will argue that there was adequate supervision at the time of the event, and that a lifeguard(s) and not a pupil pulled your client from the pool.
Your allegations are denied and we do not believe any further supervision at the time would have prevented the accident, or resulted in your client being rescued any sooner.
We enclose statements and H.S.E. report in support of our repudiation and await confirmation that your client's claim has been withdrawn."
"12.1 Although it appears that there were two sets of contradictory reports – from the point of view of the children and from that of the staff – in fact there are only two statements which are out of sync with the others. These are the statements of Kayleigh Teeboon [a fellow pupil] and [the name is redacted].
12.2 I have no doubt that Ashleigh [another schoolgirl] was instrumental in spotting Annie in difficulty and in bringing her to the side with the help of her friend Kayleigh. They probably saved her life.
12.3 Annie should have been spotted by the lifeguard or the swimming instructor for the group when she first got into difficulties and certainly when Ashleigh and Kayleigh went to her assistance.
12.4 The lifeguard and the instructor were distracted from or not applying proper attention to their duties. The instructor was probably distracted by her teaching role and the main failure was that of the person specifically on the pool side to lifeguard the children [a reference to Mrs Debbie Maxwell]."
"It was not until 29th January 2003 that Annette Hall [the H.S.E.'s Principal Inspector] wrote to Mrs Stopford with her conclusions. In the letter she stated she had interviewed four children and had sought expert opinion from the I.S.R.M. [the Institute of Sport and Recreation Management] and also an occupational health and safety physician who specialised in aquatic health and safety. She reported that the physician considered it likely that the Claimant had inhaled a large quantity of water causing her to suffer hypoxia, which resulted in unconsciousness. The letter continued that both experts were clear that there was a delay in spotting the claimant and that it was likely she was in trouble for one to one and a half minutes before rescue was undertaken and resuscitation started. She opined that the life guarding systems that should have been in place "to some extent". The lifeguard was, of course, Ms Maxwell. Annette Hall advised that "after careful consideration" of the evidence "coupled with the time taken since the original investigation" she had decided not to take any action against the individual involved. She indicated that she would be writing to the parents, to Basildon DC and to Essex County Council with her conclusions. Whether the parents reported to B&B I do not know. If they did, I also do not know whether there is any evidence of this in the B&B file. Mr Little's skeleton argument [for the claimant] contains an assertion that a copy of the LBB report was forwarded to the Claimant's parents in July 2005, but I do not know the evidential basis for this."
"We have now obtained from the Health and Safety Executive a copy of the report of Ms L.B. Bailey of I.S.R.M. Consultants dated April 2002, a copy of which we enclose for your use. As you will see, the expert opinion of Ms Bailey is extremely critical of your Principals insured, Direct Swimming Services, and in the light of the contents of Ms Bailey's Expert Opinion we invite you to reconsider your stance and to accept liability.
One matter which needs to be clarified in any event is the legal status of Direct Swimming Services. It is our understanding, on the basis of information provided by Essex County Council, that Direct Swimming Services is, and was at the time of the incident on 5th July 2000, a firm (as opposed to a Limited Company), the sole principal of which was Ms B. Stopford, and that your Principals Assitalia, are the insurers of Ms Stopford. Please confirm that this is indeed the case."
Our Principals : Assitalia
Your Client : Miss A.R. Woodland
Incident : 5th July 2000
We refer to your recent correspondence. As per our recent telephone discussion, we can confirm that liability will be conceded for this claim in full. There are no allegations of contributory negligence. …"
Crawford & Co sought copies of the medical reports, school reports and a schedule of special damages. We are told that on 17th December 2007 Crawford & Co confirmed in a letter to B&B that their client's full name and address was The Swimming Teachers Association Ltd.
"We are sure that you will understand that having taken this case over, it is preferable to have a complete understanding of the entirety of events and not simply those relating to quantum. We are not seeking to go behind the admission of liability, merely to understand the entire case."
Pannone in reply saw no reason to incur additional costs providing liability evidence when the same had been admitted.
"A concession of liability regarding this matter was provided, on behalf of the Swimming Teachers Association Ltd, by a letter from Messrs Crawfords dated 27th November 2007.
The Swimming Teachers Association Ltd hereby now forthwith, and with immediate effect, retracts in full that concession/admission and any other statements or acts that could in any way be construed as any form of admission/concession of liability or responsibility and/or any waiver of rights to alleged contributory negligence and/or to seek a contribution and/or indemnity from any third party.
All liability thus now remains in issue and of all the rights of the Swimming Teachers Association Ltd regarding all of the above and this matter generally are thus (and remain) fully reserved."
That seems a fairly comprehensive retraction. Just to make assurance doubly sure they wrote later that day stating that the withdrawal also applied to Assistalia/Generali as well as the Swimming Teachers Association Ltd. For present purposes it is accepted that inasmuch as the admission bound Mrs Stopford, the withdrawal should be treated as having been made on her behalf also.
"This incident occurred nine years ago. Your letter gives no reasons or grounds for the withdrawal of the admission and this not satisfactory given that the admission on liability was given by Crawford & Co on 27th November 2007. Your firm has been dealing with this matter since November 2008. At no time previously have you indicated that liability was in issue."
They received no more adequate explanation.
The judgment under appeal
"23. In Sowerby v Charlton  EWCA Civ 1610,  1 WLR 586 the Court of Appeal held that Part 14 of the Civil Procedure Rules (CPR), which deals with admissions, was not intended to apply to pre-action admission. This approach was confirmed in Stoke on Trent CC v Whalley  EWCA Civ 1137. In consequence, the CPR were amended with regard to pre-action admissions made after 6th April 2007 by the insertion of CPR 14.1A. This provides:
"(1) A person may, by giving notice in writing, admit the truth of the whole or any part of another party's case before commencement of proceedings (a 'pre-action admission').
(2) Paragraphs (3) to (5) of this rule apply to a pre-action admission made in the types of proceedings listed at paragraph 1.1(2) of the Practice Direction to this Part if one of the following conditions is met –
(a) it is made after the party making it has received a letter before claim in accordance with the Practice Direction (Pre-Action Conduct) or any relevant pre-action protocol; or
(b) it is made before such letter before claim has been received, but it is stated to be made under Part 14.
(3) A person may, by giving notice in writing, withdraw a pre-action admission –
(a) before commencement of proceedings, if the person to whom the admission was made agrees;
(b) after commencement of proceedings, if all parties to the proceedings consent or with the permission of the court.
(4) After commencement of proceedings –
(a) any party may apply for judgment on the pre-action admission; and
(b) the party who made the pre-action admission may apply to withdraw it.
(5) An application to withdraw a pre-action admission or to enter judgment on such an admission –
(a) must be made in accordance with Part 23;
(b) may be made as a cross-application."
24. This provision is supplemented by paragraph 7.2 of Part 14 Practice Direction, which reads:
"7.2 In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –
(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;
(b) the conduct of the parties, including any conduct which led the party making the admission to do so;
(c) the prejudice that may be caused to any person if the admission is withdrawn;
(d) the prejudice that may be caused to any person if the application is refused;
(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;
(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and
(g) the interests of the administration of justice."
25. In addition, the court has also to have regard to the overriding objective as set out in CPR 1.1. The concept of dealing with the case justly involves considerations of equality of arms, expense, proportionality, expedition and fairness, and allocation of court resources."
The Judge directed himself impeccably.
(1) he correctly observed that he had to consider all the circumstances but was specifically directed to consider the seven factors set out above. He was critical of the fact that each side had some documents relating to the matter which the others had not seen but he correctly ruled that he could only deal with the matter on the material put before him.
(2) I set out his ruling in full:
"Specific reference is made to whether new evidence has come to light. It is easy to see why: the emergence of fresh evidence is likely to be a highly relevant factor. It does not follow that a court cannot permit a party to withdraw an omission where no new evidence has come to light. The application is not made on the basis of new evidence. It is prompted by a careful re-appraisal of what is known."
(3) As to whether CPR 14.1A(2) was met, he decided that on a proper construction of the correspondence the admission was made on behalf of Mrs Stopford. He could not understand why STA was a defendant but he took account of the amendments that were to be made to add Mrs Stopford and Ms Maxwell. The admission could only embrace Ms Maxwell if Mrs Stopford was vicariously liable for her acts and omissions but it was only in the amended particulars of claim that it was alleged that Ms Maxwell was employed by Mrs Stopford.
(4) Turning to conduct, he observed that why Crawfords had changed their minds having already conducted an investigation leading to a denial of liability was unclear, but a possible clue may have lain in the very modest reserve they suggested. He did take into account that for some months Fishburns had corresponded with Pannone on damages' aspects, including making a payment into court and had then withdrawn the admission out of the blue having previously assured Pannone that they were not seeking to go behind it. On the other hand, the refusal by Pannone to supply documents was held to be "unhelpful".
(5) Dealing with prejudice to the claimant, he took account of the passage of time and the problems of recalling events after 10 years, although he accepted the defendant's point that delay up to May 2007 was not the fault of the defendant and recollections would already have been seriously impaired by then. There was ample time to investigate the position of Ms Burlinson and to join her before the limitation period expired. He was told that H.S.E. had destroyed its file and that was "an important feature" which he had to take into account, but it was not possible to measure the full extent of the prejudice without knowing precisely what documents Pannone had in its possession. The witnesses had been identified in the report by Ms Bailey and Mrs Stopford and Ms Maxwell were certainly still available.
(6) The prejudice to the defendant was the deprivation of their opportunity to defend the claim on the merits, paying their policy excess as well as the damage to the professional reputation of those involved. Satellite litigation against Crawfords was not to be encouraged.
(7) He considered that it was not a late application given the early stage the proceedings had reached.
(8) He recognised he could not conduct some form of mini-trial into the prospects of success but it was not difficult to discern that the central bone of contention was that Ms Maxwell and Ms Burlinson should have appreciated earlier than they did that Annie was in difficulty and should have embarked sooner on rescuing her. The original conclusion by H.S.E. was that she had been rescued promptly. There were concerns about the report of Ms Bailey because she did not speak to people involved in the incident and "the dangers of attempting in this sort of incident to form an opinion based only on paperwork are manifest". She appreciated there was "a not insignificant body of other evidence which she considered might be of assistance" but she took no steps to obtain it. Caution had to be applied to statements from school children taken at the request of Mr Woodland for there was an obvious risk of contamination of their evidence. As the report indicated, there were many contradictions in the statements. He concluded:
"Against that background, for LBB [Miss Bailey] to reach the conclusion based on the material in her possession that Ms Maxwell and Ms Burlinson were at fault is open to serious challenge. It is also of note that there are no criticisms directed at Mrs Stopford."
He also correctly observed that medical issues would arise and causation might be an issue. Finally he observed that whether Mrs Stopford was vicariously liable for the acts or omissions of Ms Maxwell or Ms Burlinson was not obvious. Thus he concluded:
"… it is far from a foregone conclusion that there is no viable defence to the claim. It cannot even be said that there is probably no viable defence."
(9) Finally, he considered the interests of the administration of justice. He took account of the importance of admissions in the structure of civil litigation, the stress placed on the parents when "the bombshell of retraction was first dropped some 21 months later and without explanation". He acknowledged that the parents were perfectly entitled to express the view that it would be unjust to reopen the matter. However, justice cut both ways and it was not in the interests of the administration of justice to impose on the other party a state of affairs where there is good evidence that this might result in an injustice. Nor it is in the public interest to engender satellite litigation. He recognised that to permit the defendant to resile would result in expense and delay and a further inroad on the precious court resources. He took account of the overriding objective. Last but certainly not least the value of the claim was relevant and being in excess of £2 million, anxious scrutiny needed to be given to the risk of injustice of saddling a defendant with such a liability. He also thought it would be highly artificial and unjust for the court to be required to investigate the merits to determine the claim against Ms Maxwell, who was not bound by the admission, but to deny that opportunity to Mrs Stopford.
"51. I have a balancing exercise to perform, and I express my thanks to counsel for the helpful way in which they deployed the arguments. There are factors in favour of both sides. Looking at the circumstances, in my view the interests of justice lead me to conclude that the balance, albeit by no great margin, comes down in favour of the defendant."
"16. There is, it seems to me, a serious threshold difficulty with regard to this application. Although it is only one of the circumstances which the court must have regard to in considering whether to give permission for a party to withdraw an admission, it nonetheless seems to me to be an important one. It is the first one in the list, namely: "the grounds upon which the applicant seeks to withdraw the admission, including whether or not new evidence has come to light which was not available at the time the admission was made".
17. There is … no new evidence whatsoever. What is entirely absent, it seems to me, is any real explanation of the reasons why and justification for the application. …
18. This, it seems to me, is, as I put it, a formidable threshold difficulty. Where a party makes an application of this kind in circumstances where highly important and, it must be accepted, prejudicial admissions are made, the court is entitled, it seems to me, to receive a fairly full and frank explanation of how things have gone wrong, or at least appear to have gone wrong, namely to identify the basis upon which the background to the admission is to be withdrawn, the reasons for it, how it came about that the admission was made in the first place, and so on."
Lady Justice Arden:
Lord Justice Moore-Bick: