Following Sowerby -v- Charlton the Court of Appeal have now waded in with another decision. Lady Justice Smith said that it was clear that Sowerby had caused consternation: it appeared to some that defendants were now free to withdraw pre-action admissions and there would be nothing that a claimant could do about it.
However the court still had power under Rule 3.4 (2) to strike out a defence or part of it as an abuse of process, or as being otherwise likely to obstruct the just disposal of the case. But the threshold applicable to this was much higher than would be the case where the court was exercising a broad discretion under Rule 14.1 (5).
For a claimant to show that the withdrawal of an admission would amount to an abuse of the process of the court, it would usually be necessary to show that the defendant had acted in bad faith, and that could simply not be shown in this particular case. Secondly, in order to show that the withdrawal was likely to obstruct the just disposal of the case, it would usually be necessary for the claimant to show that he would suffer some prejudice that would affect the fairness of the trial. But again, on the facts, this could not be found.
In this case, the court held that the withdrawal was neither an abuse of process nor was it otherwise likely to obstruct the just disposal of the case and therefore a strike out was not appropriate.
So the good news is that, if the defendants withdraw a pre-action admission, you can apply to strike them out; the bad news is you probably won’t win.
Walley -v- Stoke on Trent City Council. Court of Appeal 31 July 2006. Times Law Reports.