Neutral Citation Number: [2015] EWHC 2283 (QB)

Case No: JHQ/15/0265
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/07/2015

Before :

THE HON. MR JUSTICE WILLIAM DAVIS
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Between :

	Philip Cavell	Claimant	
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	Transport for London	Defendant	

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Mr Henry Witcomb (instructed by Fieldfisher) for the Claimant
Mr Matthew Kerruish-Jones (instructed by Kennedys Law LLP) for the Defendant

Hearing date: 24 July 2015
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Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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Mr Justice William Davis: 

1.	On the 10th October 2011 Mr Cavell was riding his bicycle on a cycle path running alongside the A4 in Hounslow.  At a point where the cycle path joined a bus lane he came off his bicycle and suffered a back injury.  His case is that he came off his bicycle because of a defect in the roadway.  He contacted Transport for London which is the body responsible for the maintenance of that highway.  After various exchanges of e-mails with a firm of claims handlers named Gallagher Bassett, that firm on the 13th March 2014 admitted liability subject to causation.  Because Mr Cavell’s injury was not straightforward, it became necessary to issue protective proceedings.  The admission of liability was pleaded as part of his case.  When eventually the Defence was served in February 2015 notice was given that the admission would be withdrawn with the Court’s permission.  Application for such permission was made on the 14th April 2015 supported by a witness statement from a solicitor acting on behalf of the Defendant.  Mr Cavell responded via a witness statement from his solicitor.  I heard oral submissions on the 24th July 2015 which supplemented full written submissions.
2.	The Defence pleads that the admission made was not an admission of liability.  The precise terms of the admission were as follows: “Please note liability will not be an issue, subject to causation.”  The only sensible meaning of those words is that primary liability for the accident is admitted but no admission is made as to whether the injury suffered (or some part of it) was caused by the accident.  It clearly was an admission of liability.  In her statement Angela Hanmore, the solicitor acting on behalf of the Defendant, proceeds on the basis that it was.  She was quite right to do so.
3.	Provision is made for withdrawal of a pre-action admission under CPR 14.1A(4)(b).  The relevant Practice Direction is as follows:
7.1  An admission made under Part 14 may be withdrawn with the court’s	 permission.
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.
Useful guidance on the application of the court’s power under CPR 14 and the Practice Direction is to be found in Woodland v Stopford [2011] EWCA Civ 266.  At paragraph 26 of his judgment Lord Justice Ward said this:
It is quite clear to me that CPR 14.1A(3) confers a wide discretion on the court to allow the withdrawal of a pre-action admission and paragraph 7.2 of Part 14 of the Practice Direction lists the specific factors the court must take into account in addition to the need to have regard to all the circumstances of the case. These factors are not listed in any hierarchical sense nor is it to be implied in the Practice Direction that any one factor has greater weight than another. A judge dealing with a case like this must have regard to each and every one of them, give each and every one of them due weight, take account of all the circumstances of the case and, balancing the weight given to those matters, strike the balance with a view to achieving the overriding objective. Cases will vary infinitely and the weight to be given to the relevant factors will inevitably vary from case to case. Sometimes the lack of new evidence and the lack of explanation may be the important considerations; in others prejudice to one side or the other will provide a clear answer and in all the interests of justice will sway the balance. It would be wrong for this court to circumscribe the manner of the exercise of this discretion or to give any more guidance than is trite, namely, carry out the task set by the Practice Direction, weigh each of the identified factors as well as all the other circumstances of the case and strike a balance with due regard to the overriding objective.
4.	There is no doubt that Mr Cavell sustained some kind of injury when he came off his bicycle at the relevant point on the cycle path.  An ambulance went to the scene.  The paramedic who completed the relevant report form recorded Mr Cavell as saying that he fell from his bicycle “due to uneven ground.”  In subsequent hospital notes it was simply recorded that Mr Cavell fell from his bicycle.  There was one letter sent by a junior doctor at the hospital to Mr Cavell’s GP in which it was said that “he ran over a bumpy object in the park.”  

5.	In September 2012 Mr Cavell e-mailed what he believed was the relevant highway authority.  He wrote: “The design of the cycle route and specifically the condition of the road at that point caused the accident.”  He must have been informed that the Defendant in fact was responsible for the roadway in question because the next day he e-mailed the Defendant in similar terms.  As well as repeating the sentence contained in the previous day’s e-mail he also said: “There is/was also a very nasty pothole at the entry of the bus lane….”  Two weeks later he sent a further e-mail to the Defendant.  He explained that he had checked the site and that there had been no repair to the pothole.  He attached a clear digital image of the scene with the pothole (as he described it) marked.  Within a few days the Defendant notified Mr Cavell that Gallagher Bassett had been appointed to handle his claim.  Gallagher Bassett (“the firm”) was and is a very substantial firm dealing with accident claims.  It is apparent from the notification of their appointment received by Mr Cavell that the firm is regularly instructed by TfL.  The firm must be well used to dealing with claims arising out of accidents on the highway.
6.	Following its appointment the firm e-mailed Mr Cavell with detailed questions about the accident and where it happened.  Mr Cavell after some delay (because he was undergoing medical treatment) responded.  He sent a further copy of the digital image previously sent to the Defendant.  After various exchanges of e-mails, the firm in August 2013 issued a denial of liability.  The firm had sent Mr Cavell inspection records for the relevant site which appeared to show that it had been inspected regularly without any defect being identified.  These inspection records formed the basis for the denial of liability.  
7.	Mr Cavell did not accept the firm’s denial of liability.  He pointed out that the defect was still present and enclosed further images taken in about July 2013.  He argued that this undermined the inspection argument i.e. either there had been no inspection or such inspection as there had been was inadequate.  The response of the firm was to appoint a different claims handler to deal with the claim.  E-mail traffic continued.  In December 2013 the new claims handler said that he had reviewed the case in the light of which he had sought further information from the Defendant.  He said that this was done in order to decide whether the decision in August 2013 had been correct.
8.	Unbeknownst to Mr Cavell the relevant part of the roadway was repaired in November 2013.  This fact was not known until evidence was served by the Defendant two days before the hearing.  Why it was repaired is not clear from the evidence as served.  Given what was said by the claims handler in his e-mail it must be a reasonable inference that it was as a result of his further enquiries.  The employee of the Defendant who dealt with the repair described the fault under repair as “pothole in bus lane.” 
9.	In January 2014 after some chivvying by Mr Cavell the claims handler wrote to say that the lack of contemporaneous evidence of the condition of the highway made it more difficult to assess whether the Defendant’s inspection systems were carried out reasonably.  In response Mr Cavell for the third time sent his September 2012 digital image.  In March 2014 Mr Cavell instructed his current solicitors.  They wrote to the firm setting out Mr Cavell’s case.  Whether it was because solicitors had been instructed or whether the firm had had some response from the Defendant is not clear but the admission of liability came in an e-mail 24 hours after the solicitors had written to the firm.
10.	Discussions continued between the firm and the solicitors acting from Mr Cavell during the rest of 2014.  Some interim payments were made to cover medical expenses and costs.  When the Defence was served seeking to resile from the admission this came out of the blue.  Mr Cavell’s solicitors made it clear without delay that consent would not be given to a withdrawal of the admission and that an application would be required.  No reason has been given for the two month delay before the application was made.
11.	The grounds for the application as argued before me essentially were twofold.  First, the Defendant has a strong case on liability and it would be unjust to deprive it of its defence because of an error by the firm.  Second, if the highway was defective, the responsibility for the defect must lie with the contractor responsible for inspection and repair.  If the admission cannot be withdrawn, the Defendant will not be able to claim any contribution or indemnity from that contractor.
12.	I do not accept that either ground has merit.  In relation to the Defendant’s potential case on liability, it is not for me to conduct a mini trial.  However, I am entitled to examine the matters put forward by the Defendant to justify its assertion.  They are: there is no contemporaneous record of any defect; since the inspection records disclose no defect, there was none; the defect shown on the image first sent by Mr Cavell in September 2012 cannot be said to be an actionable defect; Mr Cavell’s accounts at the time to medical professionals were inconsistent.
13.	Clearly there is one contemporaneous record of a defect, namely Mr Cavell’s evidence.  The fact that no defect appears on inspection records would have rather more weight if the defect apparent in September 2012 had not still been present in November 2013 – a defect then described by the Defendant’s employee as a pothole.  The precise nature of the defect shown in the September 2012 may be open to question.  However, it is clearly visible on a digital image taken from a number of yards away and the same defect was seen by the Defendant in November 2013 and assessed as a pothole.  The inconsistency relied on essentially is a failure to tell the medical professionals that there was a pothole.  Even if this proposition had any weight to it (which I doubt), it is largely met by the fact that Mr Cavell mentioned uneven ground to the very first person to treat him at the scene.
14.	The second ground ignores the effect of the Civil Liability (Contribution) Act 1978.  The Defendant will not be able to use its admission to prove that there was a defect in the roadway and thereby to obtain an indemnity.  Rather, the Defendant will have to prove the defect.  Mr Cavell through his counsel indicated that he would assist the Defendant in that exercise.  It follows that the Defendant is not prevented from obtaining a contribution or indemnity.  It may be more difficult and it is conceivable that in the proceedings between the Defendant and the contractor a judge could find that the presence of a defect had not been proved.  To that extent there is some potential prejudice to the Defendant but not the exclusionary prejudice as suggested by counsel in the course of his submissions.

15.	Since the grounds relied on by the Defendant have no substance the application must fail.  In fact it goes further than that.  This is a case in which it is said that the admission was made in error.  No explanation at all is offered as to how this error was made.  The firm which made the error is hugely experienced in the type of claim involved here.  An initial denial of liability was followed by a lengthy review of the decision by the firm with at least one senior member of staff being involved.  The firm consulted the Defendant in the course of that review.  Whilst the review was in train the repair of November 2013 was carried out.  All of the external evidence suggests a careful consideration of the available material and a reasoned decision based on that material.  I have been provided with no evidence whatsoever to undermine that proposition.  In those circumstances the total lack of any explanation coupled with the lack of any new evidence – or at least no new evidence which might support the pleaded Defence – is of very considerable significance.  They are the “important considerations” in this instance (to use the language of Woodland).  
16.	The final consideration within the list set out in the Practice Direction is the “interests of the administration of justice.”  It cannot be in those interests to permit the withdrawal of an admission made after mature reflection of a claim by highly competent professional advisors when there is not a scintilla of evidence to suggest that the admission was not properly made.  Were it to be otherwise civil litigation on any sensible basis would be impossible.

17.	I dismiss the application.  I have been provided with a statement of costs by Mr Cavell’s solicitors.  If it is thought appropriate for me summarily to assess the costs of this application I shall do so.  I should say that I consider the sums claimed to be hugely disproportionate.  It may be that the better course would be for the costs of the application to be payable by the Defendant in any event but for the assessment to form part of the final assessment of costs whether after a trial on quantum or after an agreed disposal of the case.