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11/03/24

Commercial Disputes | Pre-action Admissions, Can They Be Withdrawn?

Commercial Disputes | Pre-action Admissions, Can They Be Withdrawn?
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A commercial dispute arises when businesses disagree over the provision of services or products. There might be various factors at play, such as instances of non-performance or delivery issues, contractual disagreements, and payment disputes.

A pre-action admission in commercial disputes occurs where one party admits the whole or any part of another party’s case before commencement of proceedings. Nevertheless, it is common for the party who initially made the admission to later attempt to retract it.

After legal proceedings have begun, a party who has benefited from the pre-action admission may pursue a judgment for the admitted part of the case. Consequently, the party who made the admission but now wishes to retract it will be afraid to do so successfully.

The Civil Procedure (Amendment) Rules 2023 (the ‘CPR 2023’) regulate the position.

Although pre-action admissions can be withdrawn, the process can become protracted and uncertain if the party who benefits does not provide consent, as compliance with CPR 2023 requirements will need to be met.

Stuart Southall outlines the requirements of the CPR 2023.

Pre-action Admission | The Position Prior to 2023

Prior to the CPR 2023, a pre-action admission could only be used as evidence to support a claim after the Claimant had commenced action by serving a letter before claim, a Claim Form and/or a Particulars of Claim.

The party benefiting from any such pre-action admission would need to apply to the court for permission to rely on it. If the party who had made the admission wished to withdraw it, an application to the court was necessary showing that the failure to withdraw it:

  • would amount to an abuse of process,
  • was likely to obstruct the just disposal of the case.

The CPR 2023

Admissions made before commencement of proceedings:

Rule 14.1 states that a person may:

  • admit the whole or any part of another party’s case before commencement of proceedings (a “pre-action admission”),
  • withdraw a pre-action admission before commencement of proceedings if the person to whom the admission was made agrees.

After commencement of proceedings:

  • any party may apply to the court for judgment on the pre-action admission; and
  • the maker of the pre-action admission may apply to the court for permission to withdraw it.

Application for permission to withdraw admission:

Rule 14.5 states that in deciding whether to give permission for an admission to be withdrawn, the court shall consider certain factors including:

  • the grounds for seeking to withdraw the admission,
  • whether there is new evidence that was not available when the admission was made,
  • the conduct of the parties,
  • any prejudice to any person if the admission is withdrawn or not permitted to be withdrawn,
  • what stage the proceedings have reached; in particular, whether a date or period has been fixed for the trial,
  • the prospects of success of the claim or of the part of it to which the admission relates; and
  • the interests of the administration of justice.

An Admission Which Is Not Withdrawn

Where a pre-action admission has not been withdrawn, the party whose case the admission supports, is able to apply to the Court for Judgment for such amount of the claim admitted. The Claimant may elect to continue the proceedings for such amount as is disputed.

Rule 14.4 states:

  • Where a party applies for judgment on an admission, the court shall give such judgment as it considers the applicant is entitled to.
  • If the claim is not admitted in full, the claimant may give written notice that the claim is to continue in relation to the balance not admitted to be due.
  • The court shall give appropriate directions for determination of any outstanding issues.

Accordingly, failing to apply to the Court seeking the withdrawal of a pre-action admission will almost certainly attract an Application for Judgment by the Claimant for the whole claim, or the amount admitted.

In such event, the maker of the admission would need to immediately apply to the Court to withdraw the admission and, at the time of considering such Application and the Application for Judgment, the Court would have to consider the requirements of Rule 14.5 above.

A party who allows Judgment to be entered in default, but thereafter decides to seek to set it aside and obtain permission to withdraw the pre- action admission is, in the absence of any procedural defaults, more likely than not going to fail. Amongst other requirements, the Court is quite likely to require the payment of the amount due into court before considering any Application.

How Can We Help?

It is never advisable to make any form of admission or use words or phrases which may be interpretated as an pre-admission in any situation whether in a civil or criminal proceedings context, without experienced guidance.

Certainly, well considered and accurately presented admissions have a benefit in appropriate circumstances and may lead to a satisfactory resolution to the dispute being faced in an efficient, amicable, and cost- effective manner.

The Team at KANGS is accustomed to advising and guiding clients through commercial disputes and litigation of every conceivable nature and identifying and pursuing satisfactory outcomes which may have seemed beyond reach.

Our Team would be delighted to assist you, simply call or email us using the information below:

Telephone: 0330 370 4333

Email: info@kangssolicitors.co.uk

We provide a no obligation initial consultations at our three offices located in London, Birmingham, and Manchester, alternatively, meetings can also be conducted via video conferencing.

Tim Thompson

Tim Thompson
Partner

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Nazaqat Maqsoom

Naz Maqsoom
Associate

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