Sowerby v. Charlton
Court of Appeal
The CPR r.14.1 did not embrace pre-action admissions of liability, and a number of authorities that had supported the pre-CPR regime in terms of pre-action admissions were no longer to be considered reliable.
The appellant landlord (C) appealed against the entry of judgment against her in a personal injury action by the respondent (S), who had suffered catastrophic injury following an accident on C's property. The front door to C's property was at a higher level than the pavement and was accessed via a flight of external stone steps. There was a handrail only on the left-hand side of the steps. On the right-hand side of the steps was another flight of external stone steps leading to a basement flat that was below pavement level. As S left the property via the front door following an evening of socialising, she had fallen approximately eight feet over the edge of the steps to the level of the basement flat. After an initial exchange of correspondence, C had admitted liability in an open letter, but subsequently withdrew the admission following the issue of proceedings. S had successfully applied to strike out parts of C's defence with a view to relying on the admission of liability but C had been granted permission to appeal on the basis that the scope of CPR r.14.1 raised an important point of practice. The issue before the court was whether the language of r.14.1 was capable of being interpreted in the same way as RSC O.27 r.3, which was capable of embracing admissions made before a court action was started.
HELD: (1) The judge had been wrong to hold that CPR part 14 applied to pre-litigation admissions. Despite provision under the CPR regime for pre-action activity in the form of pre-action protocols and pre-action disclosure, the CPR were principally concerned with the regulation of cases after an action was started. That regulatory scheme was so carefully drafted that there could have been no intention that a pre-action admission of liability would be embraced by the wording of r.14.1(1). An admission of liability before an action was brought could not be equated with an admission of "the truth of the whole or any part of another party's case". That was because a party's "case" was not formulated until the claim form or particulars of claim were prepared, and a person did not ordinarily become a party until legal proceedings had been commenced. Furthermore, it was clear that the CPR Personal Injury Pre-Action Protocol did not intend the presumption expressed in para.3.9 of the Protocol to apply to pre-action admissions of liability in 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. (2) Although there were clearly issues of contributory negligence, legal authorities indicated that, on the facts, there was no real prospect of C resisting a finding of primary liability, Haworth v Findley (Unreported May 3, 2000) and Lips v Older (2004) EWHC 1686 (QB) , (2005) PIQR P14 approved. Summary judgment was therefore appropriate. (3) The court offered opinion on the status of three influential cases, Standerwick v Royal Ordnance Plc (Unreported March 6, 1996) superseded, Gale v Superdrug Stores Plc (1996) 1 WLR 1089 doubted, and Braybrook v Basildon & Thurrock University NHS Trust  EWHC 3352 approved.
Counsel For the respondent: Paul Rose QC.
 1 WLR 568