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8.3
Withdrawal of admissions
Both under the RHC and the CPR, the court has a discretion to allow an admission
made by one party to be amended or withdrawn.
As mentioned above, some of the
respondents have raised concerns about the principles to be applied in the exercise of
that discretion.
Shortly before the CPR came into operation, by a majority, the English Court of
Appeal in Gale v Superdrug Stores plc [1996] 1 WLR 1089, held that the principles
generally governing amendments to pleadings
were also applicable to the
withdrawal of admissions: they could be withdrawn unless this would cause injustice
to the other party and in the absence of bad faith or overreaching on the part of the
applicant, a party seeking to prevent withdrawal of an admission had to adduce
evidence that specific prejudice would result from such withdrawal. Millett LJ (as he
then was) took the view that :-
"It is not normally necessary for a party to justify his decision to amend his pleadings or
withdraw an admission. It is enough that he wishes to do so."
After the CPR entered into force, some doubt has arisen in England and Wales as to
whether this remains the position. This is due to the observation of Lord Bingham CJ
(as he then was) that there was "very considerable persuasive force" in the views
expressed by Thorpe, LJ, the dissenting judge in Gale v Superdrug Stores plc,
"particularly in the new procedural environment inaugurated by the CPR ......"
Notes
Expressed in cases like Cropper v Smith (1884) 26 Ch D 700, Clarapede & Co v Commercial Union
Association (1883) 32 WR 262 and Shoe Machinery Co v Cutlan [1896] 1 Ch 108.
At 1100.
In Sollitt v DJ Broady Ltd (Unreported, English Court of Appeal, 23.2.00). The approach of Thorpe
LJ in his dissenting judgment also attracted Seagroatt J in Li Fat Mui v Able Engineering [1998] 1
HKC 469 at 472.
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