UNDERUSED WEAPONS: ADMISSIONS, NOTICES TO ADMIT, ORDERING SECURITY FOR COSTS, WITNESS SUMMONSES, LIMITING WITNESS EVIDENCE AND REQUESTS FOR FURTHER INFORMATION CPR PART 14: ADMISSIONS 1. The use of admissions is governed by CPR Part 14. The purpose of making an admission is in order to save time and costs and to narrow the issues in dispute. If there is an aspect of the case which you are inevitably going to loose, an admission of that aspect of the case is likely to be well received by the court. Most solicitors and counsel will advise a party to take only their best points and not to run others. This is often a choice that clients do not like because they perceive that dropping a point may be a sign of weakness. However, it can often provide a party with a tactical advantage. 2. For example, assume that there is an allegation of negligence and a claim that as a result of that negligence a claimant suffered loss. The defendant may have weak arguments about whether or not his conduct was negligent, but perfectly respectable arguments that, even if he was negligent, that negligence does not cause the loss complained of. If the defendant maintains his position that he was not negligent, even though on a proper analysis it is fairly clear that he was, the court will have to focus its attention on that question rather than focusing on the more important question, namely was the loss caused by any negligence. 3. An admission may admit negligence as a whole but deny causation. Such an admission will immediately focus the court’s attention away from the fault of the defendant and concentrate on areas where the claimant may have difficulties instead. This could completely change the atmosphere of a trial. It is always better to be fighting on ground where you are sure rather than fighting on losing ground and then having to attempt to regain the surer ground when the court changes from the negligence issue to the causation issue. 1 4. There is a further refinement to this scenario. A clever admission may admit partially the allegations of negligence. Some negligent acts may have caused a loss but not others. If negligence is partially admitted, it is possible that such admissions will throw the opposition off balance and cause them to de-focus on the remaining allegations of negligence thus failing to prove them and possibly failing to prove the causation arguments. As well as destabilising an opponent, the judge at a case management conference may not fully appreciate the true implications of the limited admissions made because he has not had time to focus on them and he may be persuaded to manage the case into a state where negligence is not the main focus of a hearing putting your opponent on the back foot when trying to revive the remaining allegations so as to prove the causation arguments. 5. Obviously this is a hypothetical example but it does serve to illustrate how an admission of liability can be used tactically. 6. The other advantage is of course that admissions can save costs. If a point is obvious and it is admitted it saves the need to prove it and this ultimately reduces the costs incurred in the litigation. CPR PART 32.18: NOTICE TO ADMIT FACTS 7. The other aspect of admissions is a request to the other side for them to make an admission of certain facts. That is governed by CPR 32.18. These documents can sensibly be used in personal injury and in general civil litigation. Under the CPR they must be served at least 21 days prior to the start of a trial and can only be used by a party who served the notice in the proceedings in which the notice was served but subject to these constraints they are a useful tool. 8. There are costs penalties for not admitting facts which should have been admitted. Thus if a notice to admit is served early, it could have quite significant costs 2 implications. Such a notice is likely to ask for admissions of fairly significant aspects of the case before the costs of proving such facts have been incurred. 9. An alternative use of the notice to admit facts is to serve it after witness evidence has been served when the case is in its final stages of preparation for trial. Blanket requests for admissions will be of no use at this stage. For example it will be of no use in a case where one issue is the existence of an oral agreement to ask for an admission that there was such an oral agreement. Such an admission is highly unlikely to be forthcoming at a late stage in the litigation. It is a pointless exercise which will probably increase costs rather than decrease them. 10. A proper notice to admit facts served after witness evidence will approach the matter in the same way as cross-examination. Analyse exactly what facts you will have to establish at trial and use the notice as a tool towards obtaining sufficient evidence to establish those facts. A notice to admit used in this way is most usefully deployed to establish peripheral facts. For example if money is said to be owed to a company and their annual accounts do not show that money as an ‘account receivable’ the Claimant may have little choice but to admit this. Once that admission has been made it can be relied upon in opening to say to the court something along the lines of “Well, they say this money is owed and yet they admit that their own accounts do not show it as receivable – how odd is that?” If the admission has not been asked for that line of opening is not open to the defendant because it will be objected to along the lines of “The defendant has not proved that the accounts do not show this as receivable”. There will then be great scurrying about by the claimant to find a ledger in the depths of the company, prove that the account was shown as receivable somewhere and the point is lost. 11. A notice to admit facts can also be used to reduce the scope for evasion by a witness under cross-examination. A notice to admit properly drafted can reduce the amount of time spent in cross-examination because it can be used to shut down the possible answers to the important questions before trial. 3 12. From a practical point of view the questions asked or the fact to be admitted should be kept as simple as possible so that they can be admitted or denied without ambiguity. CPR PART 14.1(5): WITHDRAWAL OF ADMISSIONS 13. There is a wide discretion to allow the withdrawal of an admission under CPR 14.1(5) but in reality it is difficult for such an application to succeed. 14. The more lenient pre-CPR approach is set out in Gale v Superdrug Stores PLC [1996] 1 WLR 1089 CA. That was a personal injury case in which an admission of liability was made by the defendant insurer well before proceedings were issued but a defence was subsequently filed denying liability. Lord Justice Waite held that: “… the discretion is a general one in which all the circumstances have to be taken into account and a balance struck between the prejudice suffered by each side if the admission is allowed to be withdrawn (or made to stand as the case may be). Although the judge reached his conclusions in the course of a full and careful judgment, Mr Vineall’s criticisms of the judge’s approach to the exercise of his discretion are also, in my judgment, well founded. The judge had no evidence before him of any specific matter which rendered it more difficult for the plaintiff to prosecute a claim in liability than it would have been if the admission had never been made. No one pointed, for example, to any eye witness whose evidence would have been obtained if liability had been in issue but who now cannot be traced. It is certainly true that this is a field in which there is scope for some degree of obvious inference, but the judge had nothing beside a general assumption that all delay is prejudicial to place against the very clear prejudice which the defendants would suffer if they were not allowed to urge the view of liability on which – albeit at a late stage – they had received fresh advice from their solicitors as soon as they were instructed. The judge was entitled to take 4 account, as anyone naturally would, of the disappointment suffered by the plaintiff, but he was wrong in my view to elevate it to the status of a major head of prejudice thereby giving it a wholly disproportionate emphasis.” 15. The tougher post-CPR approach was set out by the Court of Appeal in Sollit v D.J. Broady Limited & Others [2000] CPLR 259. Whilst the passage in Gale set out above was said by Lord Bingham to give valuable guidance on the correct approach to the exercise of discretion he went on to say: “… it is I think plain that Waite LJ was not purporting to lay down any rule of law and that the exercise of any discretion depends on the facts of the case. I would observe that the dissenting judgment of Thorpe LJ has very considerable persuasive force, particularly in the new procedural environment inaugurated by the Civil Procedure Rules. I would however accept that it is generally necessary to look at the prejudice which the parties will respectively suffer if permission to withdraw an admission is given or not.” 16. In 2 recent High Court cases (Flaviis v Pauley, unrep, 29.10.02 and Hamilton v Hertfordshire County Council [2003] EWHC 3018 QB) a threefold test was adopted: 1) whether the issue to which the admission relates is one on which the party who made the admission has a realistic prospect of success; 2) whether the application to withdraw the admission is made in good faith; and 3) whether the withdrawal of the admission would prejudice the party in whose favour the admission was made. 17. On a practical note, Part 14 requires an admission to be in writing. If an admission is not in writing, whilst it may still be admissible in evidence, it is not a formal admission for the purposes of Part 14 and therefore can be withdrawn without the permission of the court. 5 CPR PART 3.1(3) & (5): ORDERING SECURITY FOR COSTS 18. Under these 2 rules the court may order a party to pay a sum of money into court. Rule 3.1(3) allows the court to make an order subject to conditions including a condition to pay a sum of money into court. Rule 3.1(5) allows a court to order a party to pay a sum of money into court if that party has without good reason failed to comply with a rule, practice direction or pre-action protocol. Under both provisions, the sum of money paid into court will be security for any sum payable by that party to any other party in the proceedings: r3.1(6)(A). 19. These rules significantly broaden the court’s powers to make an order for security for costs against both claimants and defendants. Under CPR Part 25.13 the court can only order security for costs against a claimant in very limited circumstances e.g. the claimant is resident out of the jurisdiction or the claimant is a company and there is reason to believe that it will be unable to pay the defendant’s costs if ordered to do so. As for making an order against a defendant, they may be ordered to give security for costs and also for any money remedy claimed against them. However the defendant may later treat any sums paid into court following an order under r3.1(5) as a Part 36 payment. 20. Difficult questions arise where the court is considering making an order against a legally aided party or a party who has entered into a CFA or a litigant in person. Before ordering security for costs in any case the court will be alert to the risk that by making such an order it may be denying the party concerned the right to access to the court. Whether or not the person concerned can raise the money will always be a prime consideration. An impecunious party will not be ordered to pay into court a sum of money which he is unlikely to be able to raise. This is something of a paradox for the party seeking the order. The more difficult it appears to be for a party to raise the money, the greater the need becomes for the order to protect the other party against the risk of incurring irrecoverable costs. 6 21. Assuming that the person against whom the order is sought does have the ability to pay there are 2 situations in which an order for security is likely to be made: see Ali v Hudson [2003] EWCA Civ 1793. Firstly, where the party concerned can be shown to have regularly flouted timetables or other court orders or otherwise have demonstrated a lack of good faith; good faith being understood to consist of a will to litigate a genuine claim or defence or appeal as economically and expeditiously as reasonably possible in accordance with the overriding objective. Secondly, at an application for summary judgment under Part 24 where it appears to the court that it is possible that a claim or defence may succeed but it is improbable that it will do so. 22. From a practical point of view, if you are seeking an order for security, the party against whom the order is sought will need to be given appropriate prior notice so that he has an opportunity to prepare evidence as to his means. CPR PART 34: WITNESS SUMMONSES 23. There are several aspects to witness evidence which are under-used. The witness summons requiring a witness to attend on a specified date and produce documents is one. Often there is a question as to how best to obtain the documents of a non party and the witness summons is a way of doing so which is useful where the witness has no evidence to give other than proving the authenticity of the documents concerned. The documents sought have to be documents which are not obtainable by way of normal discovery i.e. cannot be obtained from a party themselves and clearly they must have relevance to the matters in dispute. For example if there has been a disciplinary investigation by a professional or regulatory body the documents disclosed during or coming into existence during that investigation may be highly relevant to an issue in the proceedings and could be obtained by way of witness summons. Another example would be an order requiring a bank to attend with its books to establish the number of accounts or transactions passing through the bank’s books in relation to a certain party. 7 24. There are various practical points which need to be considered when using this procedure. First the requirements of Part 34 need to be complied with. From a practical point of view, if you wish to see documents, you probably want to see them prior to the trial. Thus you will need the leave of the court to require the witness to attend on a day other than the first day of the trial. If you do not wish to obtain that leave then you can serve a witness summons as of right specifying the first day of the trial as the day to attend. This approach is likely to give rise to practical difficulties e.g. the trial may be adjourned or the witness may end up waiting at court for a long time before he is called to give evidence. CPR PART 32.1: LIMITING WITNESS EVIDENCE 25. Another under-used aspect of witness evidence is seeking to force the court to limit evidence under CPR Part 32.1. The court has a wide discretion to limit evidence and often these days witness statements contain a huge amount of superfluous material that will take hours to deal with by way of cross- examination. In such circumstances it may be helpful to make an application to the court to limit the evidence, both in chief and in cross-examination, that can be adduced. In such an application the dicta of Lord Hoffman in Vernon v Bosley [1994] PIQR 337 may be useful: “ … there are limits to the extent to which the parties can be allowed free rein. A party’s right to choose how to present his case may have to be balanced against other legitimate public or private interests. For example, both the opposing party and the general public have an interest in keeping down the length and cost of litigation. On this ground, the judge will sometimes rule inadmissible the exploration of side-issues which, though possibly, having some potential relevance do not appear sufficiently relevant to justify the time and expense which would be required to investigate them.” 8 CPR PART 18: REQUESTS FOR FURTHER INFORMATION 26. These are governed by CPR Part 18. The intention behind this part of the CPR was that it would replace requests for further and better particulars and interrogatories. It allows a party to make wider requests than it might otherwise have been allowed to make under the old rules because you are no longer limited to requests arising out of the pleadings. There is however a limit to what information can be sought under Part 18. The Practice Direction provides at paragraph 1.2 that a request should be concise and strictly confined to matters which are reasonably necessary and proportionate to enable the party seeking the information to prepare his own case or to understand the case he has to meet. 27. Thus, if you are asking the question, use the rule widely, but always proportionately, and be careful not to make blanket requests for information that you do not really need. The court will be slow to allow such requests and there may be costs implications of making such wide ranging requests. However, the fact that you can go beyond pleadings is useful. Agency is a good example. A party will often allege that somebody did something on their behalf but without pleading any agency between them. In such circumstances an old request for further and better particulars as to the alleged terms of agency would be of limited value because the answer would simply be that the request did not arise out of the pleadings. However a request for further information will allow the questioner to ask about the basis of the agency and to force the other side to come clean about the nature of their case. 28. If you are answering the questions, adopt a different approach. Identify that the question goes beyond the nature of a request for information on the pleadings and that in truth it is in the nature of an interrogatory. If you are resisting a request for further information it may be helpful to draw analogies with some of the cases under the old rules. However a degree of care is needed because clearly the courts 9 are now taking a more pro-active approach in ensuring that information is adequate without being excessive. 29. An important case under the old rules is Det Danske Hedeselskabet v KDM International PLC [1994] 2 Lloyd’s Reports 534. 5 yardsticks were formulated by Colman J to be applied by the court in deciding the permissibility of interrogatories which considerably narrowed the scope of the information which may be requested. 1) The answers sought must be essential for the preparation of the requesting party’s case for trial and cannot reasonably be expected to emerge from requests for further and better particulars and further discovery or witness statements. 2) Information which is relevant to matters in issue only in the sense that it may lead to further inquiry or that questions about it could be asked in cross-examination at the trial will not be considered to be essential information permissible to be obtained by interrogatories. 3) Information which although it may be relevant to matters in issue can be provided only by means of detailed research or investigation which the party being interrogated would not otherwise carry out for the purpose of preparing for trial will hardly ever qualify as being necessary either for disposing fairly of the cause or matter or for saving costs. 4) Hypothetical questions will not be allowed. 5) Requests for information which may be ascertained in crossexamination are inappropriate unless the party questioning can establish that it is essential for the proper preparation of the case that such information is made available to him before trial in the sense that if the matter is left until cross-examination at trial that party will or probably will be irremediably prejudiced in his conduct of the trial or the trial my be interrupted. 10 30. Det Danske was subsequently applied in many pre-CPR cases for example by the Court of Appeal in Hall v Sevalco Limited [1996] PIQR 344 where a similarly strict approach was adopted: “Necessity is a stringent test. It cannot be necessary to interrogate to obtain information or admissions which are or are likely to be contained in pleadings, medical reports, discoverable documents or witness statements unless, exceptionally, a clear litigious purpose will be served by obtaining such information or admissions on affidavit… Interrogatories should not be regarded as a source of ammunition to be routinely discharged as part of an interlocutory bombardment preceding the main battle. The interrogator must be able to show that his interrogatories, if answered when served, will serve a clear litigious purpose by saving costs or promoting the fair and efficient conduct of the action.” CAROLINE TRUSCOTT 39 Essex Street London WC2R 3AT 11th May 2004 11