I have had cause recently to deal with the same issue on a number of occasions arising out of cases where the Defence is one of causation by way of low velocity impact or late intimation in road traffic accidents or EL/PL claims. The debate centres around the need, if any, to resile from an admission made under either the Pre-Action Protocol for Low Value PI Claims in RTAs or the Pre-Action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims (hereinafter ‘the Protocols’). It is important to note that an admission made in the Protocols is an admission of not only breach of duty but also that ‘the defendant…caused some loss to the claimant, the nature and extent of which is not admitted’.
It is instructive in my view that CPR14.1B in dealing with admissions made under the Protocols draws a distinction between (at CPR14.1B(2)) a Defendant seeking to withdraw an admission of causation and (at CPR14.1B(3)) a Defendant seeking to withdraw ‘any other admission’. The very nature of the distinction, in my opinion, supports the contention that the rules committee envisaged situations whereby a Defendant would seek to withdraw its admission of causation in the Protocols and run causation defences in Part 7 i.e. that the admission of causation is one that necessarily needs to be withdrawn to run that defence.
There is an argument that one must read ‘caused some loss’ disjunctively with ‘the nature and extent of which’ and therefore it is still within a trial Judge’s ambit to dismiss a claim in its entirety or to award £0. In my view however that is the incorrect approach and a perverse one for the following reasons. The constant of causation defences is the inherent accusation that the Claimant is not believed by the Defendant and, it follows, should not be believed by the Court; and I am yet to come across a case in which, at the conclusion of trial, I am not instructed to make an Application for a finding of fundamental dishonesty. In my view, it cannot be that an admission of ‘some loss’, which is never resiled from, can conclude in a finding of fundamental dishonesty as the Claimant is disbelieved at trial.
Ironically, there may be cases in which the Defendant does accept ‘some loss’, for example that the Claimant was injured, but wishes to pursue a section 57 (of the Criminal Justice and Courts Act 2015) argument against what the Defendant avers is a clearly exaggerated, for example, loss of earnings claim. In those circumstances there would be a far stronger argument that a Defendant does not need to resile from a Protocol admission. However, even in that type of case, if the decision is made early enough in the course of the litigation, I am of the opinion that there is no prejudice to the Defendant in withdrawing its admission of causation, putting to proof of injury and making the allegations as to section 57 as it lends a second layer to a Defence. If a weak-willed Judge is unwilling to make a finding of fundamental dishonesty against a Claimant on the loss of earnings element as in the above example, which is a requisite for a section 57 application, then the claim (including the personal injury element) could still be dismissed in its entirety on the basis that the Claimant has not discharged the burden of proof given the general inconsistent evidence and credibility issues across the board. That option would arguably not be available to a Judge on the PI element of the claim if the admission stands and the Judge could make an award on the PI element which is the admitted ‘some loss’ and simply dismiss the claim for loss of earnings as not proved.
In conclusion, if Defendants want to run a case on causation then any Protocol admission of causation must be resiled from as a matter of good practice and the earlier that this is considered, the earlier any application can be made if the Claimant does not consent and therefore the more likely a costs order will be made in favour of the Defendant as the more likely it will be that Claimant opposition is unreasonable.