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The benefit of making admissions

Akhtar v Boland
Court of Appeal
26/6/14

The CPR and the various Pre-Action Protocols encourage parties to make concessions where they can and to reach agreement where possible. The rewards of making a partial admission are brought into sharp relief in the case of Akhtar v Boland (2014). Gavin Perry looks at this Court of Appeal judgment and how Part 26 of the CPR can assist parties who are prepared to make admissions.

Introduction

For years we have advocated the benefits of making admissions and partial admissions in cases, for the costs savings that they can bring. When a court comes to consider allocation to track it should have regard to the financial value of the claim and any amount not in dispute. By admitting or partially admitting heads of loss the amount in dispute between the parties can fall below £10,000 and lead to a claim being allocated to the Small Claims Track and the limited costs recovery regime that exists in that track.

Whilst historically, claimant’s solicitors have always denied that it was appropriate to approach allocation to track in this way, we now have supportive Court of Appeal authority on the point.

Facts

In Akhtar v Boland (2014) the Claimant pursued losses in respect of a road traffic accident for hire, recovery and storage charges totalling £6,392.80. In a defence which was apparently less than clear (the Court of Appeal agreed it was “incomprehensible”), admissions were made towards each head of claim, but none of the heads were admitted in full. In respect of each head of claim the Defence did set out the amount that was in issue, and summarised the total amount in dispute at £3,866.80.

The claim was allocated to the Small Claims Track (the case was brought before the Small Claims Track limit was increased to £10,000). The Claimant's solicitors applied for the re-allocation of the case to the Fast Track, which was refused and judgment was entered for the claimant for £2,496, the total of the sums admitted in the defence.

The Claimant appealed on the grounds that:

"The judge was wrong in his interpretation of CPR Part 26 in relation to the allocation of the claim, in particular that a "partial admission" of a distinct head of claim constitutes a reduction in the amount of the dispute. Further, or alternatively, the judge erred to the appropriate extent in the exercise of his discretion in relation to the allocation of the claim by considering relevant such "partial admission".

The initial appeal came before His Honour Judge Platts, who dismissed the appeal, but granted permission to appeal, which was largely inevitable given that he had previously decided this very point before in the defendant’s favour in an unreported DWF case of Baxter v Khan. The Claimant appealed to the Court of Appeal.

Findings

Dismissing the substantive appeal, Sir Stanley Burton, Lady Justice Gloster and Lord Justice Floyd held:

  • Where an allegation made by one party in proceedings is admitted by the other party in unqualified terms, that party must not seek to adduce evidence or raise arguments to the effect that that admission is not binding on him. The court has no jurisdiction to investigate a fact that has been admitted, unless the party making the admission obtains the permission of the court under CPR r.14.1(5), to withdraw the admission and does so.
  • Where a defendant admits part, and not the whole, of an un-liquidated damages claim, the claimant is entitled to judgment on that admission and to pursue the proceedings to seek and obtain judgment for the balance and contrary to submission made by the claimant, such a judgment does not extinguish the claimant's cause of action.
  • Where an admission is not equivocal, or inconsistent with other allegations in the defence, the claimant may, and should, seek further information or clarification of the defendant's case under CPR r.18.1.
  • Once the Court had determined that the Defendant had accepted that the Claimant was entitled to judgment in the sum of £2,496, the only sum in dispute was the balance of the claim, which was less than £5,000 and so it was correct that the case should be allocated to the Small Claims Track.
  • Where a case was too complex for the Small Claims Track, the court may allocate it to another track (per CPR r.26.8(1)(c)), but the case before the Court (and most hire cases) was not such a case, and neither of the parties had suggested that it was.
  • The substantive appeal was dismissed, although the Court of Appeal found for the Appellant in relation to the costs order that had been made against him by His Honour Judge Platts on the original appeal.

Comment

  • Admissions and partial admissions are a useful tool for securing allocation of a claim to the Small Claims Track
  • It has always been our practice to seek allocation of cases to the Small Claims Track by way of reference to CPR r.26.8(1)(a) “..the financial value … of the claim” and CPR r.26.8 (1)(a) and “..any amount not in dispute”.
  • Where the defence does contain admissions, ensure that it is clearly pleaded and that any admissions are consistent with the rest of the defence – so if you admit 21 days hire make it clear that it is the reasonableness or otherwise of the remainder of the period that is in issue.
  • Admissions can be made after the filing of the defence, but before allocation as a defendant’s instructions could change between those two stages.
  • Where possible admissions should be made pre-litigation and interim payments made in respect of those amounts that are admitted, so that if proceedings are issued the admitted sum is “out of play”.
  • The approach by the Defendant in this case can be followed with other heads of loss, such as claims for physiotherapy and CBT treatment that are now commonly advanced by some claimant solicitors. A lower figure could be admitted for the cost of each treatment, or a reduced number of sessions.
  • In MOJ portal cases, be alive to the possibility of agreeing the injury claim, and making admissions in respect of any specials claimed as in the event that a Part 7 claim is brought it may be possible to secure allocation to the Small Claims Track.

Contact

For further information contact Gavin Perry, Partner on 0151 907 3493 or at gavin.perry@dwf.co.uk

By Gavin Perry

This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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