piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Relief from Sanctions / Strike Out - Is it "worth a go"?

Last week the Commercial Court dealt out a salutary warning to Parties whom are seen to opportunistically attempt to take advantages of defaults by their opponents.   Mr Justice Popplewell in the case of Viridor Waste Management Ltd v Veolia ES Ltd (unreported, QBD (Comm) 22 May 2015) awarded a claimant its costs assessed on the indemnity basis in circumstances where it was held that the defendant had taken unreasonable advantage of the claimant’s late service of particulars of claim in the hope of securing an opportunistic strike out. It was held that in the circumstances, relief from sanctions was the obviously appropriate outcome.   The facts however do not appear to be starkly in favour of the eventual outcome before the Court.   Here, the claimant’s Claim Form (claiming some £32 million for unjust enrichment) was served four days late. This was overlooked by the defendant and in without prejudice discussions a twenty-eight day extension for service of particulars of claim was agreed. However, the claimant defaulted on this agreement (the second default in the short history of the case) when these particulars were not only served a day late, but were done so by second class post, which is a method of service unrecognised by the CPR. The Claimant subsequently re-served by hand, email and first class post, albeit five days beyond the agreed deadline.   Rather than consent to the claimant’s application for an extension of time for service, the defendant applied to strike out on the grounds that the delay itself and failure of the method of service were serious breaches of important rules of procedure. It was also argued that to allow an extension would also effectively extend limitation on the facts of this case.   In the author’s opinion, the grounds put forward by the defendant had  some merit and given the potential value of the case, may well be one where a party is urged to “have a go” albeit perhaps opportunistically. The claimant had defaulted previously and the tenor of the so-called ‘Jackson reforms’ is to consider default from procedural canon to be serious.   Popplewell J however disagreed with the Defendant and your author. He held that it was unrealistic to regard any delay as being always “serious and significant”. On the facts of this case, it was held that the default should be “measured” to being just a few hours late, given the fact that the particulars of claim were in the defendant’s hands via second class post the day after that when service was due. A purposive approach was taken to the rule of service, and it was held that the said delay of a few hours would not have had any real impact on the course of litigation, other litigation or other court users were it not for the defendant’s application. Applying the Court of Appeal’s guidance in Mitchell and Denton therefore, it was held that the breach was immaterial and thus relief should be granted.   Unfortunately for it, things did not end there for the beleaguered defendant. The court held because it was obvious that relief from sanctions ought to be granted in this case, the actions of the defendant were an attempt to take unreasonable advantage of the claimant’s default in the hope of obtaining a windfall strike-out. This, and the defendant’s refusal to consent to the claimant’s application, was held to have caused further delay in this litigation as well as a negative impact upon other court users. Thus the claimant was awarded not only its costs, but they were to be assessed on the indemnity basis too.

New law - fundamental dishonesty in PI claims

The government brought into force last week a new law preventing claimants from recovering damages for personal injury when they have been fundamentally dishonest, unless it would cause substantial injustice. In the case of Summers v Fairclough Homes Ltd  [2012] UKSC 26 the claimant was injured in an accident at work and claimed more than £800,000 from his employer. Surveillance revealed him to have grossly exaggerated the effect of his injuries. At trial he was found to have fraudulently misstated the extent of his claim but the judge declined to strike out his claim and awarded £88,716. The defendant appealed and the Supreme Court held that it had jurisdiction to strike out the claimant’s statement of case but that it would only be done in exceptional circumstances, not least as the judgment on liability amounted to a possession for the purposes of the ECHR. The claim was not struck out. Section 57 of the Criminal Justice and Courts Act 2015 looks as though it would have changed the outcome of Summers dramatically. Here are some of the ingredients and likely problems: ‘fundamental dishonesty’ - the defendant has to prove on the balance of probabilities that the claimant has been ‘fundamentally dishonest’  - a concept which the courts have been grappling with since its introduction in CPR Part 44.16(1) as an exception to the rules on qualified one way costs shifting. Considerable uncertainty remains as to the difference between ‘dishonesty’ and ‘fundamental dishonesty’. ‘primary claim or a related claim’ – the fundamental dishonesty must be ‘in relation to the primary claim or a related claim’. It will be interesting to see how far the courts will go in construing ‘a related claim’ which is defined at s.57(8) as “a claim for damages in respect of personal injury which is made (a) in connection with the same incident or series of incidents in connection with which the primary claim is made, and (b) by a person other than the person who made the primary claim.” ‘application by the defendant’ - the court cannot dismiss the claim under s.57 unless an application is made by the defendant for its dismissal. ‘substantial injustice’ – the court ‘must dismiss the primary claim’ unless satisfied the claimant would suffer ‘substantial injustice’ if it were dismissed. Again, it is not clear what the difference is between ‘injustice’ and ‘substantial injustice’. How is a judge to decide? Would the depriving a claimant of £88,716 amount to a substantial injustice? It is likely that the courts will want to give very careful thought to the needs of the injured claimant (care, economic etc) and consider how well they will be met in the event that the money is not paid over. What will happen to claims for gratuitous care which a claimant is supposed to hold on trust for the providers of that care? They may have nothing to do with the claimant’s dishonesty and yet might find themselves deprived of thousands of pounds for the hours they have given. I anticipate that a large body of case law will quickly grow up around this section. Recording damages – the court must record the amount of damages it would have awarded the claimant and then deduct them from the amount it would otherwise have awarded the defendant in costs. The dismissal of the claim under s.57 must be taken into account in a sentence handed down in any subsequent criminal proceedings S.57 only applies to claims issued after 13th April 2015. Mr Summers may well have been £88,716 poorer had this section been enacted prior to the issue of his proceedings. It will be interesting to see how often section 57 is pleaded and what the courts make of the concepts of ‘fundamental dishonesty’, ‘substantial injustice’ and ‘related claims’.

Employer not liable for employee killed in air disaster

Yesterday, Mr Justice Coulson delivered an extensive judgment in the case of Cassley and Others v GMP Securities Europe LLP & Sundance Resources Limited [2015] EWHC 722 (QB), in which he dismissed the claim for damages brought by the estate of the Deceased (James Cassley) against his employer (GMP) and its client (Sundance), an Australian mining company, who chartered the ill-fated flight. This case was heard only weeks after the decision in Dusek v Stormharbour Securities LLP [2015] EWHC 37 (QB) in which an employer was found to be liable for the death of its employee on facts that were superficially similar to the present. The judgment is of significance to the developing field of employer liability in negligence for death of and/or injuries caused by third party carriers to its staff when engaged in overseas travel. In particular, the judgment provides guidance as to the standards of care that are expected, and perhaps more significantly not to be expected, from employers. GMP were successfully defended by John Ross QC and Kiril Waite instructed by Berrymans Lace Mawer LLP. In 2010, Sundance had approached GMP, who were the London division of a Canadian investment bank, with a view to retaining their services in raising capital for its mining project in Nabeba, Democratic Republic of Congo. The Deceased was a corporate finance executive employed by GMP. He was invited to join Sundance’s board of directors on a private charter flight from Yaoundé, Cameroon to an airstrip used by the mine project in the Congo. Tragically, the flight never reached its destination. The aircraft struck the side of a mountain ridge some 70km short of the airstrip and all aboard were killed. The claim against GMP was brought both for breach of statutory duty and in negligence at common law, based on the non-delegable duties owed by an employer to its employee. The central allegation in the case was that GMP made no risk assessment and no enquiries into the air carrier chartered for the flight. It was asserted that, had they done so, the results of those enquiries would have led them to conclude that it was not safe for the Deceased to have boarded the flight to the Congo. Moreover it was contended that the risk assessment for this one-off trip ought to have been undertaken by an aviation consultant or auditor who also would have known what enquiries to make.   On the undisputed facts, there had been a last-minute change in the air carrier for the flight to the Congo, which GMP did not know nor could reasonably have been expected to know. Accordingly any risk assessment or enquiries made would have been in respect of the original carrier. The factual matrix was complicated by the fact that prior to the Deceased boarding the flight, Sundance required that GMP sign a confidentiality agreement which included a clause that purported to require that it would indemnify Sundance for any injury or death caused to the Deceased. That agreement was never properly executed and not therefore binding. In closing the Claimants sought to advance a new case on causation based on this agreement, namely that no reasonable employer, who had been asked to sign such an agreement, would have permitted its employee to board the plane. Coulson J found that whilst GMP was in breach of its own internal health and safety policy and had failed to make any enquiries about the flight with Sundance, who were the flight charterer, these failings did not amount to an operative breach of duty. He rejected the contention that a company such as GMP ought to have instructed an aviation consultant from the outset. In his judgment Coulson J gives consideration to the types of enquiries that a reasonable employer should make, such as consulting the FCO website. However on the facts of this case, those enquiries would have made no difference to the outcome. Ultimately the claim against GMP failed on causation. There was no evidence before the court that the original air carrier, which GMP had expected would be used, was anything but safe. Even assuming that GMP had found out about the last minute change in carrier, the results from any enquiries that it could reasonably have been expected to make would have led it to reach the conclusion that the substitute air carrier was a safe carrier choice for this flight. The Claimant's new case on causation based on the confidentiality agreement was also rejected by Coulson J. It was a complete non-sequitur for an employer faced with such a document to simply deny its employee entry on board the flight.  The claim against Sundance also failed on the ground that, although Sundance had assumed a duty of care to the Deceased, it had undertaken reasonable enquiries into the suitability of the substitute carrier it selected for the index flight. Claims against employers whose staff are injured or killed in aviation disasters have become something of a burgeoning area in the arena of employer’s liability. This judgment will provide valuable guidance to those involved in this expanding field of litigation.  

Heracles, the Hydra and Basic Hire Rates

In Greek mythology the Hydra was a serpent-like water monster with many heads. For every head cut off it grew two more. It had poisonous breath and blood so virulent that even its tracks were deadly. Credit hire claims are like the Hydra – every time the appeal courts strike off a metaphorical head, another argument (or two) seems to emerge. In a claim for a car hired on credit, absent impecuniosity, the question is what is recoverable? Since Dimond v Lovell [2002] 1 A.C. 384 it has been clear that what is recoverable is the basic hire rate. How is that to be assessed?  The Court of Appeal has just revisited the issue in Karl Stevens v Equity Syndicate Management Limited. How are the additional benefits to be stripped out of the credit hire rate? The burden is on the defendant. But what happens when the court is provided with a wide range of basic hire rates? Kitchin L.J. posed the question: “should the judge take a figure from the top or the middle or the bottom of the range? Or should he take an average? Or should he conclude… that, if one of the figures at the top of the range is close to or exceeds the credit hire rate, then the defendant has simply failed to prove that the BHR is less than the claimed credit hire rate and so not apply a discount at all?” Lord Hoffman said in Dimond that the court should consider what the claimant would have been willing to pay an ordinary hire company for the use of a car. However he did not mean that the court should consider what the individual claimant was prepared to pay: the attitude of the actual claimant was irrelevant. The analysis is an objective one and is to determine what the BHR would have been for a reasonable person in the position of the claimant to hire a car of the kind actually hired on credit. The Court of Appeal concluded that it was reasonable to suppose that the lowest reasonable rate quoted by a mainstream supplier for the hire of the vehicle is a reasonable approximation to the BHR. The key is to identify rates for the hire, in the claimant’s geographical area, of the type of car actually hired. If that yields a single rate then that is likely to be a reasonable approximation of the BHR. If a range of rates, then the BHR may be obtained by identifying the lowest reasonable rate quoted by a mainstream supplier, or if not mainstream supplier, by a local reputable supplier. It was one of the 12 labours of Heracles to destroy the Hydra and he did so with the assistance of Iolaus who finally burned out the roots of the heads with firebrands as Heracles cut them off. Whether the Court of Appeal has achieved this with credit hire claims remains to be seen.  (Photograph courtesy of  www.freephotobank.org)

Application of Procedural Rules and Litigants-in-Person

There can be little doubt that modern litigation involves the increased presence of people representing themselves in court. Particularly amongst some kindlier judges (in all courts) there could be said frequently to be a culture of benevolence towards such litigants-in-person when it comes to non-compliance with the Civil Procedure Rules and other procedural rules.   This can lead to significant frustration amongst represented parties, particularly in circumstances where a Strike Out or other such punitive sanction is sought, but denied on the grounds that the defaulting party should be afforded another chance (perhaps applying the third limb of the Denton test?). Yet further frustration is likely to be felt should the prospect of recovering any costs from the said defaulting party is considered, notwithstanding those thrown away by any such default, assuming as one may that the reason most litigants-in-person are just so is for reasons of pecuniary necessity.   Lord Justice Briggs in giving the sole judgment of the Court of Appeal (Underhill and Moore-Bick LJJ concurring) in Nata Lee Ltd v Abid & Anor [2014] EWCA Civ 1652, may provide such represented and non-defaulting parties with some hope. This was an appeal concerning the trial of a boundary dispute, at which the Appellant was represented by a company director and the Respondent by leading and junior counsel. The Appellant’s application for to change its expert was unsuccessful on the grounds that it was “too late” and provided insufficient reasons for its request. The Court of Appeal found that this decision was “seriously flawed”, but not before emphasising that  the application of procedural rules of the court were to be applied levelly to represented and unrepresented litigants.   Briggs LJ held:   53.       I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.

Compensating an injured foetus?

In what circumstances is an unborn child entitled to compensation for injuries caused by a mother? That is the question facing the Court of Appeal today. A mother drank heavily during pregnancy despite warnings from social workers and antenatal medical staff that it risked harming her unborn baby. The baby was born with foetal alcohol syndrome and has since suffered from developmental problems. The mother is no longer in contact with the child who is being cared for by a local authority. That authority brought a successful claim before the Criminal Injuries Compensation Authority on the grounds that the mother’s behaviour constituted the crime of poisoning under section 23 of the Offences Against the Person Act 1861. However the decision was overturned in the Upper Administrative Tribunal. The media reported that the Upper Tribunal’s decision was made on the grounds that an unborn child is not a person in law and therefore no criminal offence could have been committed. If the report is correct, this is a curious conclusion as a criminal offence can be committed against a foetus under the Infant Life (Preservation) Act 1929. It is easy to forget that the Abortion Act 1967 makes an exception to that law on child destruction where the provisions of the Act are complied with. One wonders whether the perhaps unspoken dilemma for the Upper Tribunal was that its decisions might beg the following question: if a criminal offence can be committed against a foetus and if the child is entitled to be compensated for the injuries it has suffered, how is it that the law appears to make it so easy to take the life of an unborn baby under the Abortion Act 1967? Did it fear that it might upset the current uneasy status quo?

Shooting Admiral Byng

Admiral Byng was held responsible for the loss of Minorca in 1756. He was relieved of his command, court martialled and shot by a firing squad. Voltaire remarked of the decision to shoot him that it was beneficial to kill an Admiral from time to time “pour encourager les autres”. Although Hildyard J. made reference to Admiral Byng in his judgment in the case of Caliendo v Mishcon de Reya [2014] EWHC 3414 he was not prepared metaphorically to shoot the Claimant’s solicitors, DLA Piper LLP, to encourage the rest of us. DLA were 3 ½ months late in serving notice on the defendant of the existence of a CFA and an ATE policy in a professional negligence claim. They made an application for relief from sanctions at the time of service of proceedings and admitted that they had no good reason for their failure. The judge accepted the serious effect of the ATE/CFA funding arrangements but considered that what mattered for the first limb of the Denton test was the seriousness and significance of late notification. He held that the defendant had not been able to show ‘material prejudice’. This seems a slightly different test from whether or not the breach was ‘serious and significant’ - a failure to pay court fees was given as an example in Denton of a breach which is serious and significant but it cannot be said to cause ‘material prejudice’ to the other party. The judge’s application of the third limb of the Denton test (evaluation all the circumstances of the case so as to deal justly with the case) was also interesting. When dealing with the impact on other court users, the judge was keen to emphasise that he was not aware of any specific detriment to court users such as in Mitchell where the adjournment of the cost budget hearing caused an adjournment and the vacating of an asbestosis claim. It is submitted that the test of the impact on other court users has always been difficult – on the one hand information of a specific detriment is rarely likely to be available outside, perhaps, the masters’ corridor in the RCJ whereas, on the other hand, without such specific detriment the courts and parties will often be merely speculating. The judge did not consider it would be just to withhold relief from sanction. Whereas Denton undoubtedly softened the Mitchell regime, judgments such as this are taking us still closer to the former relief from sanctions test which focused on the requirements of justice - too late to save some of the Admiral Byngs of the past year.

A Judgment for What? The Effect of Default Judgments

Where a defendant admits breach of duty but wishes to contest causation, injury and quantum, it has in the past been common practice for it to allow judgment to be entered in default of Acknowledgment of Service or of Defence and to proceed to contest the remaining issues at an assessment of damages hearing.  An alternative course of action, which in the short term is more expensive, is to file a Defence making appropriate admissions and then for the claimant to seek entry of a judgment for damages to be assessed. In Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB), the claimant was referred to hospital in October 2008 by his GP with a lump on his face which turned out to be a malignant tumour.  In January 2009, a consultant decided that he should have an urgent superficial parotidectomy, but that was not carried out prior to May 2009, when it was found that the tumour had invaded the facial nerve and there had been metastasis to the lungs, leading to the need for a total parotidectomy and the loss of the left facial nerve and inoperable lung cancer.  In 2011, an open admission was made that there had been a breach of duty in failing to identify that the lump was suspicious of malignancy and in the delay in operating, but the defendant’s solicitors made it clear that its view was that the invasion of the facial nerve and the metastasis to the lungs were not attributable to either breach of duty. Proceedings were initially struck out for non-service, but on re-issue, the claimant pleaded his causation case in detail in the Particulars of Claim.  The defendant did not enter an Acknowledgment of Service or a Defence.  Master Roberts entered judgment in default of Acknowledgment of Service and set a date for a directions hearing.  The parties agreed the terms of an order before the hearing and the Master ordered that the parties would have permission to rely on expert evidence on “quantum, condition and prognosis” from experts in oncology and care.  The defendant continued to reiterate in discussions between solicitors that the claimant’s case on quantum was in dispute, save that it was accepted that there was a liability to pay damages for pain and suffering during the delay in treatment.  However, it was not until the claimant sought an interim payment of £50,000 that his advisers expressly asserted that the default judgment precluded the defendant from contesting the pleaded allegations of causation.  Whether or not the claimant was entitled to that interim payment depended largely on whether the claimant was correct as to the effect of the default judgment. At first instance, in a judgment given on March 21st 2014, the Master upheld the claimant’s contention.  He ruled that the Particulars of Claim stood as a template for the default judgment and that the defendant accordingly could not contest causation.  He castigated the defendant for having acted in a manner contrary to the overriding objective and having failed to comply with the obligation in CPR 16.5 to respond properly to the Particulars of Claim by serving a Defence. On appeal, Simon Picken QC, sitting as a Deputy High Court Judge, allowed the appeal.  In his judgment, the deputy judge reviewed the case law in some detail.  In particular, he closely examined the leading case on the subject, Lunnun v Singh [1999] CPLR 587, which had followed an earlier decision of the Court of Appeal refusing permission to appeal in Turner v Toleman [1999] unreported, January 15th.  The judge held at [62]-[63] that he was bound by the decision of the Court of Appeal in Lunnun to conclude that the default judgment established no more than that the defendant was in breach of duty and that the breach had caused some damage.  There was no special rule applicable to clinical negligence cases: at [64].  Lunnun remained good law following the introduction of the CPR: at [65].  He also said that as a matter of principle that since the defendant admitted part of the claimant’s pleaded case on causation (that the delay in treatment led to pain and suffering) there was no basis to construe the default judgment as extending to the other consequences which were said to follow from the breaches of duty: at [66]-[68]. The deputy judge then went on to consider whether the defendant had acted contrary to the CPR.  The rules did not state that the effect of a default judgment for damages to be assessed precluded a claimant from contesting a pleaded case as to causation: at [83].  It followed from the decision as to the effect of the default judgment that the defendant had been entitled not to serve a Defence and so there was no breach of CPR 16.5: at [84]-[85].  Accordingly, while it “would have been more sensible” for the defendant to serve a Defence, it was not in breach of the rules for failing to do so: at [86]-[87].  Nor was the defendant in breach of the overriding objective, since it had made its position clear in correspondence to the claimant’s advisers, if not to the court: at [89]-[91].  The claimant’s advisers accepted that they had known that the defendant’s solicitors were under what they regarded as a misapprehension.  In those circumstances, both parties should have brought the misunderstanding before the court at an earlier stage: at [92].  In Parkhouse v North Devon Healthcare NHS Foundation Trust, at a hearing on May 6th 2014, this course had been taken where default judgment had been entered but at a directions hearing, the defendant had made it clear that causation was in dispute.  Master Roberts himself denied that there was any need for the directions order to make clear that it was open to the defendant to contest causation, although in the event a recital was inserted to that effect. The extent to which, in clinical negligence cases, the practice of allowing default judgment to be entered in this way is followed is not clear.  Anecdotally, it appears that both courses of action are utilised by defendant’s solicitors.  Even though the practice has been legitimised (subject to any further appeal to the Court of Appeal) by the decision in Symes, nevertheless the modest cost savings in not serving a Defence in a case where there is a clearly pleaded case in causation are surely outweighed by the need to ensure that both parties are absolutely clear about the extent to which the critical issue of causation is being contested.

Exit Mitchell enter Denton

Our jurisdiction generally does not favour laws (whether judge- or parliament-made) which fail to take account of what is just in the individual circumstances of the particular case. The common law prides itself in being able to adapt to new situations to yield what we would generally understand to be the ‘right’ result. This is a priority of our legal system and Mitchell fell foul of it – whether because it overstepped the mark in the first place or whether because it was wrongly interpreted. It is a strength of our system that it has been able to correct itself within such a short space of time. Exit Mitchell and enter Denton (or perhaps it will become known as ‘Decadent’). The Court of Appeal explains that when approaching rule 3.9 the first stage is to identify and assess the seriousness and significance of the ‘failure to comply with any rule, practice direction or court order’. If the breach is neither significant nor serious then there is no need to spend much time on the second and third stages. The second stage is to consider why the default occurred. The third stage is to evaluate ‘all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]’. The assessment of ‘seriousness and significance’ is substituted for the ‘triviality’ test. The Law Society had contended for a test of ‘immateriality’. The Court of Appeal was content with this as long as it involved not just a question of whether trial dates were affected but also the effect on litigation generally. Because this test did not take account of breaches which were serious but did not affect the efficient progress of the litigation, the Court preferred to stick to whether or not the breach was ‘serious or significant’. At this stage unrelated past failures should not be taken into account. The second stage is to consider why the default occurred. The examples in Mitchell are to be considered as no more than examples. When it comes to the third stage, if there is a serious or significant breach and there is no good reason for it the application will not automatically fail but the court will consider ‘all the circumstances of the case, so as to enable it to deal justly with the application’. The Court of Appeal rowed back from the epithet ‘paramount importance’ which had been attached to the only two factors expressly referred to in rule 3.9. They are now of ‘particular importance’ and should be given particular weight when all the circumstances of the case are considered. The Court of Appeal is on a tight rope. Its aim is evidently to avoid relaxation which 'will inevitably lead to the court[s] slipping back to the old culture of non-compliance which the Jackson reforms were designed to eliminate.' Equally it wants to put an end to the plethora of decisions which have come from some judges which are 'manifestly unjust and disproportionate'. Whether Denton will achieve that remains to be seen.

Allocation and admissions

Where a defendant admits a part of a claim, how does the admission affect the allocation of the claim? This was the question considered in Akhtar v Boland [2014] EWCA Civ 872. The defendant filed a Defence admitting hire, recovery and storage charges in the sum of £2,496. The claimant’s claim was pleaded at more than £5,000 but less than £10,000. However, if the sum of £2,496 was subtracted from the pleaded claim, it fell below £5,000 and therefore was below the then current limit for the fast track. Following Allocation Questionnaires the district judge allocated the claim to the Small Claims Track. The claimant applied to have the claim reallocated to the Fast Track but the judge refused the application but entered judgment against the defendant for £2,496. The Court of Appeal held that the sum of £2,496 fell into the category of ‘any amount not in dispute’ which was to be disregarded pursuant to part 26.8(2)(a) when allocating the claim to a track. An admission is binding and the Court has no jurisdiction to investigate facts which have been admitted unless permission has been granted for the admission to be withdrawn. That principle applied even more strongly to a judgment: neither party may make submissions or adduce evidence whichwould lead to decisions or findings inconsistent with a judgment. The Court of Appeal also made it clear that where there was judgment for a part of a claim the claimant’s cause of action was not extinguished: the claimant was entitled to pursue and seek judgment for the balance. Tactically defendants may want to make admissions which will bring the value of the claim into the Small Claims Track. However they will need to be careful of the costs consequences of so doing as part 44.15(3)(iv) says the court may allow the claimant costs of the proceedings to the date of the admission of part of the claim. To avoid such costs consequences it would be prudent to make such an admission during the pre-action protocol period.