<p align="JUSTIFY"><strong><img src="/images/welcome_gareth_price.jpg" alt=""></strong></p> <p align="JUSTIFY"><strong>By <a title="Gareth Price" href="/barristers/gareth-price/" target="_self" rel="noopener">Gareth Price</a></strong></p> <p align="JUSTIFY"><strong>Introduction</strong></p> <p align="JUSTIFY">The effect of Qualified One-way Costs Shifting (QOCS) is that any costs order made against the Claimant is enforceable only up to the amount of any damages and interest recovered by the Claimant. Costs ‘protection’ is thereby afforded to Claimants.</p> <p align="JUSTIFY">This article considers the case law on QOCS and the boundaries of the protection it provides.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>When will QOCS apply?</strong></p> <p align="JUSTIFY">CPR r.44.13 provides that QOCS applies to proceedings which include a claim for damages for personal injuries, under the Fatal Accidents Act 1976 (‘the FAA’) or pursuant to s.1(1) of the Law Reform (Miscellaneous Provisions) act 1934 (‘the LRA 1934’). Otherwise, QOCS protection will not apply. Nor will it apply if the Claimant has entered into a pre-commencement funding arrangement (for our current purposes, usually a pre-April 2013 CFA).</p> <p align="JUSTIFY">In <em>Wagenaar v. Weekend Travel Ltd</em> [2014] EWCA Civ 1105, the Court of Appeal considered the applicability of QOCS.</p> <p align="JUSTIFY">The Claimant brought a claim under the Package Travel Regulations 1992 following a skiing accident. The Defendant joined the Claimant’s ski instructor as a Third Party, seeking an indemnity or contribution from her for any damages that might arise.</p> <p align="JUSTIFY">Both claims were dismissed, and the trial judge ordered that costs follow the events. However, those costs orders were not to be enforced because of the application of QOCS. The Defendant and Third Party appealed. The Defendant appealed on several bases, including that QOCS did not have retrospective effect. The Third Party appealed on the basis that the claim against her did not fall within the QOCS ambit.</p> <p align="JUSTIFY">The appeal court held that QOCS do indeed have retrospective effect.</p> <p align="JUSTIFY">It further held that ‘proceedings which include a claim for damages for personal injuries’ must be focused on claimants who ‘are themselves making a claim for damages for personal injuries.’ Construing the term ‘proceedings’ more widely than that would not be in accordance with the purpose of the rule. Consequently, the Defendant did not benefit from any protection as against the adverse costs order from the Third Party. Whilst the trial judge held this would create injustice to the Defendant, who had successfully defended the claim, the appeal court did not.</p> <p align="JUSTIFY">Therefore, the applicability of QOCS seems limited to Claimants who, possibly amongst other types of claims, claim damages for personal injury. Multiple Defendants do not gain that protection as between themselves.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>When will QOCS not apply?</strong></p> <p align="JUSTIFY">In addition to the clarification from the Court of Appeal discussed above, QOCS protection is automatically lost if the claim is struck out because the claimant had no reasonable grounds for bringing the claim, the proceedings were an abuse of the court’s process or the conduct of the Claimant or someone acting on his behalf obstructed the just disposal of the proceedings.</p> <p align="JUSTIFY">Further, that same ‘protection’ is lost, conditional on the court’s say so, if the claim is found on the balance of probabilities to be fundamentally dishonest.</p> <p align="JUSTIFY">It therefore follows that it is in the Defendant’s interest to have a claim struck out for one of the above reasons, rather than have a court determine that the claim is fundamentally dishonest, as the court’s permission would not be required in the former circumstances.</p> <p align="JUSTIFY">This would bring into play the case of <em>Fairclough Homes Limited v. Summers</em> [2012] UKSC 26 (and the jurisprudence since that decision) in which the Supreme Court held that it may, although only in ‘in the very exceptional case’, be just and appropriate for a court to strike out an action after a trial. Interestingly, that decision was given before the introduction of QOCS and the Supreme Court felt that such a step would only be just and appropriate in ‘the very exceptional case’ because the Claimant, if found to be fraudulent, would ‘face a substantial order for indemnity costs.’ That, of course, is not the case if QOCS protection applies. Possibly, the likelihood of strike out after trial for abuse of the courts process or obstructing the disposal of proceedings (due to dishonesty or fraud) increases where that costs liability is dependent upon such an order.</p> <p align="JUSTIFY">Alternatively, where a Defendant is <em>unable</em> to seek such an order, or fails to persuade the court to that that step, QOCS protection is <em>provisionally</em> lost if the court finds that the claim is fundamentally dishonest.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>What does ‘fundamentally dishonest’ mean?</strong></p> <p align="JUSTIFY">Arguably, it does not mean fraud. Fraud requires the dishonest making of a false representation with the intention of making a gain for oneself or another (or causing loss to another or exposing them to the risk of such loss). One <em>may</em> be dishonest without seeking such a result – although in the context of personal injury litigation this may be rare. The prefix ‘fundamentally’ qualifies the degree of the dishonesty. All fraudsters may be fundamentally dishonest, but are all those who are fundamentally dishonest fraudsters?</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY">In his third lecture, Jackson LJ commented that:</p> <p align="JUSTIFY">"I agree that if the Claimant’s claim is fraudulent or is struck out as an abuse of process, the Claimant should forfeit costs protection."</p> <p align="JUSTIFY">This statement envisages that a finding of fraud will automatically lead to losing costs protection. However, ‘fraud’ must be different to ‘fundamentally dishonest’ or else that phrase would not have been chosen.</p> <p align="JUSTIFY">At the end of April 2014, HHJ Moloney QC gave judgment in <em>Gosling v. Hailo &amp; Screwfix Direct</em>, a County Court decision. It remains the only reported case on the issue of fundamental dishonesty.</p> <p align="JUSTIFY">The facts, in brief, were that the Claimant suffered a knee injury whilst using a defective ladder – manufactured by D1 and sold to the Claimant by D2. His pleaded claim was in the region of £80,000. Surveillance footage of the Claimant showed a level of daily functioning well in excess of what he reported to the experts and in his witness statement. In correspondence, D2 asserted that it would contend that the claim was fundamentally dishonest. The claim settled against D1 for £5,000 plus costs and the claim against D2 was discontinued.</p> <p align="JUSTIFY">D2 applied for permission to enforce the adverse costs order against the Claimant.</p> <p align="JUSTIFY">After considering the procedural steps a court should go through when determining if, how and when the issue of fundamental dishonesty should be approached, HHJ Moloney QC found that, on the allegation as to quantum, the claim was indeed fundamentally dishonest. This was largely based on the surveillance evidence.</p> <p align="JUSTIFY">The judge held the phrase should be ‘interpreted purposively and contextually’, requiring a consideration of whether the Claimant was <em>deserving</em> of QOCS protection. To achieve this, the judge was of the view that QOCS envisaged:</p> <p align="JUSTIFY">"two levels of dishonesty: dishonesty in relation to the claim which is not fundamental so as to expose such a Claimant to costs liability, and dishonesty which is fundamental, so as to give rise to costs liability."</p> <p align="JUSTIFY">'Incidental’ or ‘collateral’ matters, about which the claimant had been dishonest, would not lead to costs liability. Dishonesty which ‘went to the root of either the whole of [the] claim or a substantial part of [the] claim’ would render the claim fundamentally dishonest.</p> <p align="JUSTIFY">Ultimately, valuing about half of the £80,000 claimed as being founded on dishonesty, HHJ Moloney QC held the claim to have been fundamentally dishonest. The judge did not regard it as necessary for the dishonesty to stretch to the entirety of the damages for the claim, as a whole, to be fundamentally dishonest. This approach is consistent with the Supreme Court’s guidance in <em>Fairclough</em>.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>What must be fundamentally dishonest?</strong></p> <p align="JUSTIFY">CPR r.44.16(1) is clear. Where the ‘claim’ is found, on the balance of probabilities, to be fundamentally dishonest, an order for costs may be enforced to the full extent with permission from the court. Not the Claimant. Is there a material difference? Presumably, only if the dishonesty of the Claimant had the effect of rendering ‘the root’ or a ‘substantial part’ of the claim dishonest would the rule bite. But it may be the case that the actions of someone other than the Claimant has rendered the ‘claim’ fundamentally dishonest.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>When will the issue of fundamental dishonesty be determined?</strong></p> <p align="JUSTIFY">As one might expect, and as is provided for by the Practice Direction to the QOCS rule, any ‘allegation that the claim is fundamentally dishonest [will] be determined at the trial.’ This, however, is interesting as it implies that an ‘allegation’ has been made before the trial begins. Does this mean that a formal pleading that the claim is fundamentally dishonest is necessary before the mater can be determined at trial? Or is merely correspondence to that effect sufficient?</p> <p align="JUSTIFY">In <em>Gosling</em>, the issue had been raised, and the allegation made, in correspondence. It is settled case law that fraud must be pleaded by a Defendant if such an allegation is to be made. That, however, is an allegation that goes to the merits of a claim. QOCS concerns costs liability only and it is the author’s view that court’s will be slow to find that the allegation that the claim is fundamentally dishonest must be expressly pleaded before a court can be determined by a court at trial.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>What if the claim does not reach trial?</strong></p> <p align="JUSTIFY">Further, if the claim settles, only in ‘exceptional circumstances’ would issues arising from such allegations be determined by a court in those proceedings. If a claimant files a notice of discontinuance, a defendant may seek a direction from the court that any issues of fundamental dishonesty go on to be determined at a hearing, as occurred in <em>Gosling</em>.</p> <p align="JUSTIFY">Importantly, in <em>Gosling</em>, it was held that it will not always be necessary for a court to hear oral evidence from the Claimant before determining whether the claim is fundamentally dishonest.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>What protection is lost is the claim is fundamentally dishonest?</strong></p> <p align="JUSTIFY">As noted above, such a finding does not automatically lead to losing costs protection.</p> <p align="JUSTIFY">The Claimant loses the QOCS protection only if, having had his claim be found to be fundamentally dishonest, the court goes on to give permission for the costs to be enforceable. Whilst it may be rare for a court to take the step of making such a finding and not go on to give such permission, the permissive wording of the rule gives Claimants a last chance of saving themselves.</p> <p align="JUSTIFY">Further, Practice Direction 12.4(d) permits the court to order the Claimant to pay the Defendant’s costs ‘attributable’ to the claim having been found to be fundamentally dishonest. This would give the Court the power to allow the Defendant to enforce only those costs which have been expended on the part of the claim which has led to it having been found fundamentally dishonest. The court declined to apply such a distinction in <em>Gosling</em>, but it is a point not to be missed by a Claimant whose claim has been found to be fundamentally dishonest.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>Fixed fee cases</strong></p> <p align="JUSTIFY">Claims which have exited the Portal are subject to the fixed fees (‘fixed fee cases’) set out in Part 45, Section IIIA. Consequently, any costs orders made in favour of a Defendant in fixed fee cases are regulated by reference to the costs recoverable by the Claimant pursuant to tables 6C and 6D.</p> <p align="JUSTIFY">Therefore, if the Claimant recovers, say £15,000 in damages and has failed to better the Defendant’s Part 36 offer in doing so, the Claimant is liable for the Defendant’s costs from the date of expiry of the relevant period in the normal way. Those costs, however, are assessed by reference to the fixed fee tables and are not costs at large.</p> <p align="JUSTIFY">QOCS applies to fixed fee cases. Therefore, the Claimant, in fixed fee cases, has double protection, in that not only are the amount of costs that he or she may be liable for fixed, such costs order are not enforceable.</p> <p align="JUSTIFY">However, the protection as to the amount of costs (and, of course, the principle itself) is lost if, in a fixed fee case, the claim is struck out for one of the reasons mentioned above or the claim is found to be fundamentally dishonest.</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>Does one include CRU payments when assessing the aggregate amount of damages?</strong></p> <p align="JUSTIFY">This question was expressly left open by HHJ Moloney QC in <em>Gosling</em>.</p> <p align="JUSTIFY">CPR r.44.14(1) provides that costs orders may be enforced ‘only to the extent that the aggregate amount in money terms of such orders to does not exceed the aggregate amount in money terms of any orders for damages and interest made in favour of the Claimant.’ The rule is therefore not explicit on the point.</p> <p align="JUSTIFY">Damages is defined in the CPR glossary as ‘a sum of money awarded by the court as compensation to the Claimant.’</p> <p align="JUSTIFY">The Social Security (Recovery of Benefits) Act 1997 provides for the Defendant to repay to the state any benefits that have been, or are likely to be, paid to the Claimant in respect of the accident. Such payments do not go to the Claimant and, arguably, he is not awarded such sums as compensation. Further, to include such sums, would expose the Claimant to an increased costs risk, despite the Claimant having recovered damages from a tortfeasor, but possibly not having recovered sufficient damages to cover any such order. This seems contrary to the aim of the rule. In the author’s opinion, payments to the CRU would not be included in assessing the ‘aggregate amount in money terms of any order for damages and interest made in favour of the Claimant.’</p> <p align="JUSTIFY">&nbsp;</p> <p align="JUSTIFY"><strong>Conclusion</strong></p> <p align="JUSTIFY">Sir Rupert Jackson envisaged that QOCS would achieve a social policy goal of protecting Claimants who <em>deserved</em> protection against adverse costs orders. That concept, of interpreting QOCS so as to afford protection to those that deserve it and not to those that don’t, was employed by HHJ Moloney QC in <em>Gosling</em>. Further, but not expressly, it was employed by the Court of Appeal in <em>Wagenaar</em>, by holding that it was not designed to protect commercial entities who may seek contributions from one another.</p> <p align="JUSTIFY">Several questions posed in this article are without authority as yet. A reasonable guess would be that, as the jurisprudence develops on this topic, posing oneself the further question: ‘is this party deserving of costs protection?’ will be key in answering them. At the boundaries of an otherwise simple proposition, the protection afforded by QOCS will remain open to argument.</p>

&nbsp;SAMEER UMERJI v&nbsp;(1) MUHAMMAD KHAN &amp;&nbsp;(2) ZURICH INSURANCE PLC 2014&nbsp; <h4 align="center">COUNSEL’S NOTE</h4> <p align="center"><a href="https://www.parklaneplowden.co.uk/barristers/steven-turner/">Steven Turner</a></p> 1.&nbsp;&nbsp; The Court of Appeal today handed down its judgment in the case of <em>Umerji v Khan &amp; Zurich</em>. The case provides important clarification as to the meaning of ‘impecuniosity’ in a credit hire context, as to who has the burden of proof on that issue and also as to the extent to which a Claimant is expected to get on and repair / replace his own vehicle out of his own funds.2.&nbsp;&nbsp;&nbsp;Attempts to persuade the Court of Appeal to engage with the question of whether or not a Claimant who declines to use his own fully comprehensive insurance to repair or replace his vehicle fails to mitigate loss were not successful. The Court accepted that the issue was an important one, but declined to adjudicate upon it as the issue had not been pleaded or argued below.3.&nbsp;&nbsp;&nbsp;This Note is written by Steven Turner, Appellants’ counsel. <h4>Umerji – the facts</h4> 4.&nbsp;&nbsp;&nbsp;Mr Umerji’s own car (value £7,100) was written off in an accident. He hired a substitute from Elite in Bolton for 591 days at a total cost of £95,130.14. His car was also placed in storage for over four months at a cost of £3,420.75.5.&nbsp;&nbsp;&nbsp;Mr Umerji had failed to disclose any evidence as to his means and so had been debarred from pleading impecuniosity. <h4>The decision below</h4> 6.&nbsp;&nbsp;&nbsp;The (Second) Defendants approached the trial on the simple basis that, as Mr Umerji was barred from pleading impecuniosity, he could not assert that he had been too poor to replace his vehicle at an early stage. Such submissions did not find favour with the Judge (Recorder Alldis), who held that impecuniosity in a credit hire context went only to rate and not to period. Save for disallowing a short period when the Claimant was out of the country, the hire charges were allowed in full. The storage charges were also allowed in full, on the basis that the Claimant had been entitled to retain his vehicle until the Defendants had confirmed whether or not they wished to inspect it. <h4>The Court of Appeal’s decision</h4> 7.&nbsp;&nbsp;&nbsp;The decision was delivered by Underhill LJ, with Moses LJ and Sir Robin Jacob agreeing. The key elements of the decision are:8.&nbsp;&nbsp;&nbsp;<em><strong>Impecuniosity:</strong></em> The Court held that ‘Lagden’ impecuniosity goes not just to rate, but to period. The decision in Lagden is of general application. Impecuniosity in a credit hire context is not a term of art restricted to rates only.9.&nbsp;&nbsp;&nbsp;<em><strong>Burden of proof:</strong></em>&nbsp;The Court stated firmly and explicitly that the burden of pleading and proving impecuniosity rests with the Claimant.10.&nbsp; <em><strong>Debarral Orders:</strong></em>&nbsp;It is not open to a Claimant who has been debarred from pleading impecuniosity to assert that he needed to hire because he could not afford to replace his vehicle. If impecuniosity is off the table, it is so for all purposes.11.&nbsp;&nbsp;<em><strong>The obligation to repair / replace:</strong></em> It is reasonable for a Claimant to wait until an assessment of whether it is economical to repair his vehicle has been made. It is also reasonable of him to wait until the Defendants’ insurers have had an opportunity to inspect his vehicle and say whether they agree with the Claimant’s engineer’s report. Thereafter, the non-impecunious Claimant should take steps to repair or replace. On the facts of this case, as the Defendant’s insurers failed to respond to the Claimant’s correspondence, it was reasonable for the Claimant to wait until he disposed of his vehicle. He was thereafter given a fortnight to purchase a replacement. A hire period of 140 days (versus 591 claimed) was allowed.12.&nbsp; <em><strong>Use of fully comprehensive policy:</strong></em> The Court commented that the point is an interesting one and plainly of some general importance. They would not deal with it, however, as the point had not been&nbsp; pleaded or argued below and also because a decision on the point would require examination of the full circumstances, including the terms of the policy / excess / no claims bonus etc.13.&nbsp; <em><strong>Storage:</strong></em> The Defendants argued that the Claimant should have written to the Defendants at an early stage indicating that the Claimant’s vehicle would be disposed of in, say, 21 days if the Defendants did not express a wish to inspect. The Court had some sympathy with this view and encouraged Claimants’ representatives to impose such deadlines. On the facts of the present case, however, the Court would not say that the Recorder was wrong. <h4>Counsel’s comments</h4> 14.&nbsp; The clarifications in relation to the meaning of impecuniosity, the breadth of impecuniosity debarral orders and the burden of proof on the impecuniosity issue are all welcome. In the current unforgiving post-Mitchell environment, the decision on these points should permit significant gains where Claimants fail to plead issues properly and/or are lax in fulfilling their disclosure obligations.15.&nbsp; Of equal importance, in my view, is the implicit expectation that a Claimant who has funds to repair or replace will get on and do so more or less as soon as the Defendants’ indicate whether or not they intend to inspect and whether or not they are going to fund repairs / replacement. If this approach is followed in the County Courts (and it should be), Courts should be less willing to allow long hire periods for Claimants who just sit back waiting for the Defendants to get their act together or change their mind about liability. Insurers could probably exploit this part of the decision to their advantage by changing the tenor of their early correspondence from ‘please bear with us’ to ‘please get on and repair / replace yourself while our enquiries are on-going’.16.&nbsp; The decision on the fully comprehensive policy point is disappointing, as the Court were interested enough to hear full argument from both counsel on the issue, with citation of all relevant authorities (which are carefully listed within the judgment). The argument is by no means open and shut in the Claimant’s favour<a name="_GoBack"></a> (as many on both sides of the argument believe) and Defendants should now move to bring this argument to the fore. It should be pleaded and details of the Claimant’s policy obtained for use at trial.17.&nbsp;&nbsp;The outcome on the storage charges point is also disappointing, although Underhill LJ’s assertion that Claimant solicitors ought to impose a clear deadline should help to curtail the most abusive storage claims.I should have a copy of the approved judgment later today. My clerks (Andy Gray or Mike Stubbs) should be able to get a copy of this to anyone who is interested: <a href="mailto:clerks@parklaneplowden.co.uk">clerks@parklaneplowden.co.uk</a>

Resiling from Admissions - a commentary on the CPR and associated case law Jonathan Godfrey - Park Lane ChambersPre-CPR RSC Order 27 Rule 3 determined that an admission of fact made by a party in his pleadings or otherwise was capable of embracing admissions made before the relevant action commenced.Whether a party was able to resile from any admission made pre or post proceedings depended upon a wide discretion looking at a tripartite test of whether the application was made in good faith, that a triable issue with reasonable prospects of success evolved and whether the prejudice to the plaintiff could be adequately compensated Gale v Superdrug [ 1996 ] 1 WLR 1089.Advent of the CPRWith the advent of the CPR , Part 14.1 allowed a party to admit the truth or otherwise of another party’s case, but Part 14 ( 1 )( 5 ) contained the proviso that “the court may allow a party to amend or withdraw an admission”. In addition, and in apparent contradiction to CPR Part 14 ( 1 )( 5 ) , the pre-action protocol for personal injuries provided at paragraph 3.9 that “where liability is admitted , the presumption is that the defendant will be bound by this admission for all claims with a total value of up to £15,000. What was the position with respect to cases over £15,000? Furthermore, did the admission set out in CPR Part 14 apply to pre-action admissions ? The CPR was ambiguously silent. In Salter v McCarthy [ 2002 ] at first instance, it was decided that Part 14 did not apply to pre-action admissions , but that Paragraph 3.9 was binding.In Flavis v Pauley [ 2002 ] again at first instance, where a post proceedings admission was made, in a claim worth £700,000 , the court applied the tri-partite test in Gale ante. This route was followed in the cases of Lenton v Abrahams [2003 ] , Ali v Car Nation [ 2004 ] and Hamilton v Hertfordshire CC [ 2003 ].Other first instance cases applied the more general prejudice test introduced in Sollitt v Broady [ 2000 ] CA . In this context, reference is to be had to Beckett v First Choice [ 2003 ] and Thorpe v John Lewis [ 2003 ] and Fanning v Kent Ambulance Trust [ 2004 ].The court’s applied no uniform approach, but a number of points were forthcoming ( a ) generally the first instance court’s were applying Paragraph 3.9 of the protocol as binding in fast track cases (b ) pre-action admission as well as post action admission was seen to apply to CPR Part 14 and (c ) in relation to multi track cases the courts were applying a discretion to withdraw, with Gale and Sollitt being seemingly applied .Matters clarified ?The vexed question of Part 14 admissions came before the court in Sowerby v Charlton [ 2005 ] EWCA Civ 1610. Liability was purportedly admitted pre-issue, but subsequent to proceedings being issued the defence put primary liability in issue. It was admitted that the pre-accident admission was an informed one having sought solicitor’s advice. The decision to resile was taken post advice from counsel. At first instance and on appeal, the court struck out those paragraphs of the defence putting liability in issue. The action was multi track in scope.The matter came before the Court of Appeal and judgment was handed down on 21st December, 2005. The leading judgment was provided by Brooke LJ. Detailed perusal of his judgment leads to a very clear understanding of the interpretation given by the court to CPR Part 14. The main points are these : a. The CPR are principally concerned with the regulation of cases after an action has started. They do away with the language of a “ cause of matter “ and speak of a “ case “ ; b. The regulatory scheme has been so drafted whereby the rule drafters had not intended a pre-action admission of liability to be embraced by the words “ a party may admit the truth of the whole or any part of another party’s case “ as per CPR Part 14 ( 1 ). Analogy is made to an admission of guilt made to a police officer and an admission of guilt made when a charge is brought in court. A “ party’s case “ was not formulated until particulars of claim were prepared, and a person could not be said to be a “ party “ until proceedings were brought ; c. Consideration or the pre-action protocol for personal injury actions and the presumption specified at paragraph 3.9 made it clear that the “ protocol did not intend any such presumption to apply to pre-action admissions of liability in multi-track claims “ ; and d. Any admission made post proceedings could be withdrawn on application by the Defendant ; e. In applying to withdraw an admission , Brooke LJ at paragraph 35 of his judgment stated that the unreported judgment of Sumner J in Braybrook v Basildon &amp; Thurrock University NHS Trust , 7th October, 2004 offered “ invaluable guidance “ on the way in which a court should exercise its discretion when determining whether or not to permit the withdrawal of an admission made after an action was commenced. The usage of Gale ante was specifically disapproved as it concerned the effect of a regulatory regime abolished with the advent of the CPR ; f. The dicta of Sumner J in Braybrook ante , approved by Brooke LJ , provides : i. In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective. ii. Amongst the matters to be considered are : a. The reasons and justification for the application which must be made in good faith ; b. The balance of prejudice to the parties ; c. Whether any party has been the author of any prejudice that they may suffer ; d. The prospects of success of any issue arising from the withdrawal of an admission ; and e. The public interest , in avoiding where possible, satellite litigation , disproportionate use of court resources and the impact of any strategic manoeuvring . iii. The nearer any application is to a final hearing the less chance of success there will be even if the party making the application can establish prejudice. This may in itself be decisive if the application is shortly before the hearing. The upshot of Sowerby is that in any multi track case CPR Part 14 was never intended to apply to any pre-action admission and that the withdrawal of any post action admission can be sought on application with the exercise of the discretion to withdrawal dependant on the facts of each particular case.Are pre-action admissions redundant ?The impact of Sowerby would say so in relation to CPR Part 14. It remains a query whether it can be canvassed that the pre-action protocol still applies to all pre-action admissions made in fast track cases. In which case, is it still conceivable to contend that the presumption still applies in those cases, with a discretion of whether or nought to resile based on those matters set out in the judgment of Sumner J in Braybrook ! Arguable may be , probable to succeed , unlikely . Given that the bolt has been firmly applied to shut the door in relation to CPR Part 14 admissions , is it possible for the Claimant to volunteer another route relying on the pre-accident admission ? In this context, does the doctrine of promissory estoppel avail itself in relation to pre-action admissions ?The doctrine of promissory estoppel applies where there is an unequivocal representation ( by either words or conduct ) by A relied on by B Hughes v Metropolitan Railway Co [ 1887 ] 2 App Cas 439.The application of promissory estoppel has been considered in relation to pre-action admissions at first instance in the Lancaster County Court in the case of Pearson v North Yorkshire County Council 6th March, 2006 . It related to a fast track matter in which the Defendant had made a pre-action admission of liability in a highway tripping case.The Claimant relied on the decision of Mrs Justice Gloster DBE in Fortisbank SA v Trenwick International Ltd [ 2005 ] EWHC 399 as demonstrative of how the doctrine of promissory estoppel applied to a case where the Defendant seeks to raise a defence which it has previously promised not to raise.In Fortisbank ante, the doctrine was being utilised to prevent the defendant raising a limitation defence which it had previously promised not to raise. At Paragraph 30 of her judgment , Gloster J stated that : 1. The Claimant must show that there is a clear, unequivocal , unambiguous and unconditional promise by the insurers that they will not raise the defence. The focus has to be on whether they have given up that right ; and 2. Once the representation in unequivocal form has been established, a Claimant has to establish that, relying on such a promise or representation, the Claimant has altered its position to its detriment or otherwise relied on the promise so that it would be inequitable or unconscionable for the insurer not to be held to the promise.In Pearson , the Claimant contended that the unequivocal representation was the written admission of primary liability and that the Claimant had acted to her clear detriment in that( a ) no investigations were made by the Claimant . She took photographs of the defect but did not actually measure the defect, nor did she keep the original digital photographs. Only copies were available; (b ) no investigations were made into primary liability by the Claimant’s legal advisers, the admission having been made pre their instruction and ( c ) enquires would have been made with neighbours as to the size of the defect and any complaints. It was 4 years post accident that the application was made and any such enquiries would be hopeless .Further, the Claimant contended that it would be unconscionable for the Defendant to be allowed to resile for the reasons set out at Paragraph 19 above, and because the admission was made over 3 years previously. The Claimant therefore had a realistic expectation that primary liability was established and would now be bitterly disappointed that the issue was re-opened.The Claimant succeeded in Pearson. It is not the subject of appeal. It is of practical value, but its value is probably limited to its facts, being a very clear enunciation of the doctrine. Furthermore, the doctrine of promissory estoppel is an equitable remedy, and it enables the court to do what is equitable in the circumstances. It is not an automatic bar to demonstrate that the claimant has acted on a promise to his detriment. If raised “ the court’s function is to determine what , if anything , is necessary to satisfy that equity in all the circumstances of the case “ per Lord Browne-Wilkinson in Roebuck v Mungovin [ 1994 ] 1 All ER 568 at 575 e.ConclusionAll is not lost in relation to pre-action admission. In fast track cases the presumption in the protocol may still be invoked with realistic expectations. In both fast track and multi track cases, the scope of promissory estoppel is to be explored. Whilst only a first instance decision, Pearson ante exemplifies that the courts are prepared to take such an approach. As to post action admissions, Sowerby ante is now the line to be followed by a Defendant seeking to resile.