 |  |
|
 |
 |
 |
 |
|  | |  | |
In Gale, the defendant had wished to withdraw an admission of liability that had stood
for two years while the parties were debating quantum. Thorpe LJ dissented from the
more indulgent approach of the majority, on the basis that modern case management
required "a more disciplinary approach to adversarial manoeuvring" and indicating
that he would have upheld the judge's view that there had been an insufficient
explanation for the defendant's change of position.
In our view, the approach in Hong Kong is well-established and has tended to be
somewhat stricter than the approach adopted by the majority in Gale. The courts in
this jurisdiction have generally required the party seeking to resile from an admission
to provide a proper explanation for its withdrawal and at the same time required the
party resisting to provide evidence of any prejudice it might suffer should the
admission be withdrawn.
Thus, in the much-cited case
of Tse Yuk-tin v Chee Cheung Hing & Co Ltd [1984]
HKLR 391, Hunter J stressed the need for a proper explanation as to how the
admission came to be made and why it is sought to be withdrawn :-
"...... the court allows a party to withdraw an admission deliberately made or to resile from a
conscious choice for good reason, and if good reason is shown. In particular it expects the
party to put before it a convincing credible explanation of the circumstances in which the
admission was in fact made, which is sought to be said to have been made under a mistake.
A typical sort of case is where a party is able to say ‘yes, when I said this, or when I admitted
this, I believed that to be the case, I have now got some totally fresh evidence in my
possession which if true suggests that it was not the case, and I want to advance that
proposition'. ...... Conversely if no credible or convincing explanation is given, that is a
powerful factor in favour of the exercise of discretion against the application."
On this approach, the court is obviously not limiting itself to examining the applicant's
conduct for bad faith or overreaching as the grounds for refusing leave to withdraw the
admission.
Notes
Approved by the Court of Appeal, eg, in Leung Kin Fook v Eastern Worldwide Co Ltd [1991] 1
HKC 55 and Taisei Kogyo Kaisha Ltd v Billiongold Co Ltd [1992] 2 HKC 153.
At 395.
|
 |
|