J v A South Wales Local Authority

The Court of Appeal upheld a High Court decision to refuse to allow a Local Authority to withdraw an admission of liability in a failure to remove case.

The claimant, J, was born in 2000 and had a difficult early childhood. There were concerns about his mother’s behaviour and parenting ability even prior to his birth. Despite this he was allowed to remain in her care until May 2006 when the Local Authority initiated care proceedings.

In August 2012 J began proceedings, with a litigation friend, against the Local Authority on the basis of a breach of both statutory duty and a common law duty of care. It is alleged that he ought to have been removed from the care of his mother in the first month of his life and placed for adoption.

Liability was admitted in writing and in a Defence served in December 2012. The claim was initially stayed to allow time to consider J’s development as he moved towards adulthood and consider the need for psychiatric assessment of J following his 16th birthday. A further stay was imposed in August 2018 pending a decision in CN & GN v Poole Borough Council.

The Supreme Court decision was provided in respect of CN on 6 June 2019 and this prompted the Local Authority’s application to withdraw its admission of liability on the basis that it did not owe a duty of care to J at the material time. 

HHJ Howells granted the Local Authority’s application at Cardiff County Court but her decision was reversed on appeal by Marcus Smith J in the High Court. The court does have a discretion under CPR 14 to allow a defendant to withdraw an admission of liability and there are a number of factors to consider including the stage of proceedings, prejudice to the claimant and ‘the interests of the administration of justice’. Smith J allowed the appeal on the basis of prejudice in light of the time which had expired between the original admission and the application.

The Local Authority unsuccessfully challenged this decision in the Court of Appeal. The lead judgment was provided by Lord Justice Lewison who noted that “the withdrawal of the admission has undoubtedly put J in a worse position than he was with the admission.” The admission had stood for seven years during which time J believed that he would eventually receive damages. Lord Justice Lewison added that “as a result of the admission having been withdrawn, that expectation will have been completely falsified.”

Coulson LJ agreed with the decision and noted that whilst the list of factors in CPR 14 is useful “it does not replace the need for the judge to stand back and consider the application in the round.” There was clear and obvious prejudice to J if the Local Authority was allowed to resile from the admission which would give rise to the need to obtain evidence about events going back over 20 years.

An open admission of liability

The decision in J reiterates the importance of taking great care when making an open admission of liability. On the specific facts of this case the Local Authority had not established that it was fair, just and appropriate for it to be allowed to resile from its admission of liability. The long delay meant that there was significant prejudice to J.

Where a defendant does wish to resile from an admission it should do so at the earliest possible opportunity. Failure to do so may mean that it is prevented from relying on what might have been a successful defence.

A link to the judgment can be found here.

Nicholas Leigh, Associate, BLM

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