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25 November 2013

The defendant’s automatic right to withdrawal of admission

Paragraph 6 of the Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents pre 31st July 2013 (‘the protocol’) made no distinction between a liability admission of breach of duty and a liability admission which includes an admission of breach of duty and an admission of causation. Set against that background, in accordance with paragraph 7.32 of the protocol and CPR 14.1B (2) (a) (i) and in circumstances where the defendant made an admission of liability in response to the claim, the defendant within the ‘initial consideration period’ of 15 days following submission of the stage 2 settlement pack was able to exercise their automatic right to withdraw such an admission without requiring either the consent of all parties or the permission of the court.

7.32

The claim will no longer continue under this Protocol where the defendant gives notice to the claimant within the initial consideration period (or any extension agreed under paragraph 7.29) that the defendant –

(a) considers that, if proceedings were started, the small claims track would be the normal track for that claim; or

(b) withdraws the admission of causation.

CPR 14.1B

(2) The defendant may, by giving notice in writing withdraw an admission of causation –

(a) before commencement of proceedings –

(i) during the initial consideration period (or any extension to that period) as defined in the relevant Protocol; or


No provision for a window of opportunity of a similar nature existed elsewhere within the CPR 14 the usual course for a defendant who made an admission of liability either pre or post proceedings was subject to the requirements that he obtain either the consent of all parties or that he applied for the permission of the court in accordance with CPR 14.1A.

The Pre-action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents post 31st July 2013 (‘the new protocol’) may have attempted to close the gap (if such a gap existed) as follows:

7.39

The claim will no longer continue under this Protocol where the defendant gives notice to the claimant within the initial consideration period (or any extension agreed under paragraph 7.36) that the defendant—

(a) considers that, if proceedings were started, the small claims track would be the normal track for that claim; or

(b) withdraws the admission of causation as defined in paragraph 1.1(1)(c) (my emphasis)

Paragraph 1.1(1)(c) of the new protocol specifically defines the admission of causation separately to the admission of breach of duty and the admission of the fact of the accident having occurred. This may mean that in respect of claim where the CNF form is submitted after 31st July 2013, the defendant no longer has the benefit of the automatic right to withdraw an all-encompassing admission as was successfully argued under the old protocol.

Article posted by Jacqueline Swain, Barrister

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