[2025] EWHC 2760 (Ch)

the interests of the administration of justice.”

This is a non-exclusive list of the criteria the court must take into account when considering whether to grant permission. The range of issues set out in the list in CPR rule 14.5 indicate that the decision whether or not to grant permission needs to be a carefully balanced with appropriate weight being given to each criteria depending upon all the circumstances. The prospects of success have to be reviewed and inevitably this has to be done at a relatively high level. A compelling case may encourage the court to grant permission whereas a claim that barely reaches the real prospects hurdle is likely to point in the other direction.

In J v A South Wales Local Authority [2021] 2 FLR 1441 Lewison LJ considered the importance of admissions and referred with approval to two passages in Zuckerman on Civil Procedure: Principles and Practice 4^th ed. at para 6.10 and 6.11 and went on to cite with approval two paragraphs from the judgment of Nugee J (as he then was) in Lufthansa Technik AG v Astronics Advanced Electronic Systems [2020] FSR 18:

“[22] … I agree with Mr Cuddigan that the purpose of what the CPR says about admissions is that, if an admission is made, the opponent can proceed on the basis that that will not be something in issue. Whether it is an admission of fact or an admission of law, it will not be necessary to devote any resources or energy or thoughts to that part of a case, because it is not one of the matters that will be in issue. That, of course, is subject to the powers of the court to allow the admission to be withdrawn in rule 14.1(5), and everybody who faces an admission knows that there is always a possibility that an admission may be withdrawn.

[23] However, I agree with Mr Cuddigan that litigation should be capable of being conducted on the basis that admissions mean what they say and that, if a party whose case has been admitted by the other side is facing an application to withdraw the admission, it is relevant to consider whether they will now be put in a worse position — not in a worse position than they would have been had the admission not been made in the first place, but in a worse position than they are with the admission.”

The Court of Appeal also considered the withdrawal of an admission in Clarkson v Future Resources FZE [2022] EWCA Civ 230. The circumstances in that case bear some similarity with this claim because the party seeking to amend did not make an application under CPR rule 14 when applying for permission to amend. The admissions were of a liability to repay loans and it was only when an application was made for summary judgement by the claimant that an attempt was made to withdraw the admissions by seeking permission to amend.

In giving the leading judgment, Simler LJ provided the following principles:

Simler LJ commenced paragraph [45] of her judgment with the words “Leaving aside the absence of an application under CPR 14.1(5)” (as the rule then was). She appears to have contemplated that seeking the court’s permission to withdraw an admission should be made by application notice albeit that the rule itself does not specify that this is needed; but the absence of an application was not treated as being fatal.

Mr Goodfellow submitted that it was open to the court to treat the application for permission to amend as including an application to withdraw admissions or, alternatively, to permit him to make an oral application in the course of the hearing. When making his submissions he went on to propose that if the court considered that it had insufficient material upon which to base a decision under CPR rule 14, Ms Swan should be given an opportunity to address the issues that arise under CPR rule 14.5 in more detail. However, the submission was not pursued and no application to adjourn the hearing was made. Instead, Ms Swan produced a short witness statement which was handed up when Mr Goodfellow replied to Mr Moraes’ submissions on the Amendment Application and the Section 212 Application.

There is no doubt that an application pursuant to CPR rule 14 should have been made and there would have been no objection to it being made as part of the Amendment Application notice. The hearing proceeded on the basis that Ms Swan was permitted to make the CPR rule 14 application. This approach accords with the overriding objective. It would have been wasteful of court resources, delayed the progress of the claim and incurred additional expenditure had the court declined to deal with an application to withdraw admissions.

The two decisions of the Court of Appeal I have cited emphasise the importance of the court being given a full and frank explanation. As with many other circumstances in which the court is asked to exercise a discretion to alter the effect of a rule or an order, or to alter the status quo in proceedings, the applicant will have to consider whether matters that are privileged should be revealed. Providing any explanation, let alone a full and frank explanation, about something which is said to have gone wrong, or why a case that is supported by a statement of truth needs to be changed, will almost invariably involve waiving privilege to a greater or lesser degree. An approach which says ‘I wish to provide an explanation, but I am unwilling to waive privilege in order to provide that explanation’, is unlikely to prosper. The applicant has to decide which is more important; maintaining privilege or giving a full and candid explanation.

There is very little evidence from Ms Swan relating to the application for permission to amend her defence. The application notice seeking permission to amend of course relates to both elements of the amendment. It states:

“1.

… The application seeks permission to introduce by way of amendments matters which have come to light since the date on which the Amended Particulars of Claim was introduced.

2.

Following a change in representation in November 2024 when the 2^nd Defendant became a litigant in person a review of the Defence filed by the previous representatives was undertaken and it was identified the 2^nd Defendant’s Defence needed to be amended.” [my emphasis]

The passage I have highlighted is unspecific but appears to be saying that things (matters), that were not known by someone who is not named, came to light after the defence was first considered; but it does not say what those matters are. If ‘matters’ is being used as a synonym for information or evidence, the statement which is signed with a statement of truth may not be accurate. It has not been suggested that the proposed amendment relies upon anything that was unknown to Ms Swan. I note that Mr Goodfellow’s skeleton argument says she does not to have a good explanation for the need to amend.

The position becomes very slightly clearer in the statement provided by Ms Swan part way through the hearing. No objection was made on behalf of the claimants to it being considered. She says:

“4.

I confirm that neither the release defence now pleaded at paragraph 5.1 nor the limitation defence now pleaded at paragraph 5.2 of the Draft Amended Defence of the Second Defendant were discussed with me prior to Kennedys (instructed by insurers) coming off the record in November 2024.”

The criteria set out in CPR rule 14.5 need to be considered briefly in turn: