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Court of Appeal rejects bid by Welsh council to withdraw admission of liability in failure to remove case

The Court of Appeal has refused to allow an unnamed Welsh local authority to withdraw an admission of liability in a failure to remove case.

In J v A South Wales Local Authority [2021] EWCA Civ 1102 J was born in 2000 and had a troubled childhood. In August 2012 he began proceedings against the local authority arguing that in breach of both statutory duty and a common law duty of care, it had failed to remove him from mother’s care in the first month of his life, and place him for adoption.

Lord Justice Lewison said: “Even before proceedings began, the local authority admitted liability; and also admitted that, but for the breach of duty, J would have been removed from the care of his mother and placed for adoption in the first month of his life.”

That admission was maintained in the local authority's pleaded Defence, served in December 2012.

In July 2019, as the lengthy proceedings in the case continued, the local authority applied for permission to withdraw that admission.

HHJ Howells granted this at Cardiff County Court but her decision was reversed on appeal by Marcus Smith J in the High Court.

The local authority then sought to have HHJ Howell’s decision reinstated by the Court of Appeal.

Lord Justice Lewison said: “The withdrawal of the admission has undoubtedly put J in a worse position than he was with the admission.”

The Court of Appeal judge said HHJ Howells did not appear to have factored in that the admission had stood for over seven years during which J's perception would have been that there was no substantial impediment to his eventual receipt of damages.

“As a result of the admission having been withdrawn, that expectation will have been completely falsified,” he said.

Lord Justice Lewison said that HHJ Howells conscientiously went through each of the sub-paragraphs in paragraph 7.2 of PD 14, but “she did not stand back and consider 'all the circumstances of the case’” and so Marcus Smith J had been entitled to set her decision aside.

He dismissed the local authority’s appeal, a decision with which Moylan LJ and Coulson LJ agreed.

The latter noted: “There is no doubt that the checklist at paragraph 7.2 is a useful tool for any judge faced with an application to withdraw admissions.”

But Coulson LJ said working through the list “does not replace the need for the judge to stand back and consider the application in the round, as paragraph 7.2 expressly requires, ‘hav[ing] regard to all the circumstances of the case’.”

He said there had been a number of factors in favour of refusing the local authority permission to withdraw, including “clear and obvious prejudice to J if the local authority was allowed to resile from those admissions so late in the day, giving rise to the need to obtain evidence about events going back over 20 years and completely changing the nature of this litigation”.

Had HHJ Howells undertaken this overall consideration “she would have concluded that, in this particular case and on these specific facts, the local authority had not established that it was fair, just and appropriate to allow it to resile from its admissions”, Coulson LJ said.

Mark Smulian

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