Wood v Days Health UK Ltd & Ors

This is my reserved decision after a two-and-a-half-day hearing. I was asked to consider six applications by the parties in this case. I will refer to the parties by initials and numbers. For reasons which I explain below, I will not distinguish between D2 and D3, and will refer to them both as ‘D2’. The applications were

C was represented by Mr Bright QC, D1 by Mr Ferris, D2 by Mr Hunjan QC and Mr Leslie, D4 by Miss Khanum and D5 by Mr Coles. Miss Khanum’s participation in the hearing was necessarily very limited, but I am grateful for it. I am also grateful to the other counsel in the case for their written and oral submissions.

The nature of the applications has meant that I could not avoid making findings on some of the disputed issues. It goes without saying that because these were interlocutory applications and there was no cross-examination, my findings do not bind the trial judge.

C born on 7 June 1950. She has been paraplegic for some time, and relies on a motorised wheelchair. She had an accident on 26 October 2009. Her case is that she was using her wheelchair when the chair riser shot forwards, propelling her into her desk, pinning her against it and injuring her.

Her case is that she suffered a shoulder injury. It was operated on, and she has subsequently developed complications which have had a ‘devastating’ effect on her life. She says that the injury has severely limited the independence which her dominant right arm gave her.

D2 was previously the Telford and Wrekin Primary Care Trust (‘the PCT’). The PCT has been dissolved and D2 has assumed its liabilities. D3 has also been dissolved and D2 has assumed its liabilities also. This means that it is not necessary for me to distinguish precisely between the roles of D2 and D3 and I do not do so. I will simply refer to ‘D2’.

D2 initially supplied a Viper wheelchair to C in 2007, with a riser unit. The terms on which it did so are controversial and I say more about those in due course. In brief, C argues that she had a contract with D2 for the supply to her of a riser unit for that wheelchair and D2’s case (skeleton argument paragraph 6) is to the effect that D2 bought the riser unit ‘on behalf of’ C and she reimbursed D2 for its cost. D2 says there was no contract between it and C in relation to the riser unit.

D2 ordered the original wheelchair and riser unit from D5, who in turn obtained it from D1. D1’s case is that it assembled that wheelchair from a chassis supplied by Armada, and from a riser unit supplied by D4. The riser unit was produced by D4. D2 did not know that the riser unit was fitted to the original wheelchair by D1. D4’s evidence is that it produced the riser unit to a good standard, and in accordance with a specification provided by D1. D1 disputes the extent to which it told D4 how to produce the riser unit.

D2 used D5 ‘for stockholding purposes’. There was no contract between D2 and D1, as D2 bought the wheelchair and riser unit from D5. D5 would order from D1 in response to an order from D2. D5 charged D2 more for the wheelchair than it paid D1 for the wheelchair. C’s case (in sum) is that the riser unit was sold to her by D2 and that D2 was contractually responsible for repair and maintenance of the wheelchair and riser unit.

C reported a problem with the riser unit to D2 in June 2008. D2’s case is that D2’s engineer contacted Eric Cooper at D1 and told him that there was a failure under warranty. A riser unit then turned up on a pallet. It had come directly from D1, with no paperwork. I say more about the circumstances of that in due course. This evidence is not contradicted by any evidence from D1, but Mr Ferris says it is not accepted by D1. He points out, with some justification, that there are some gaps in D2’s evidence on this part of the case.

Eventually D2, under pressure from C, agreed to fit the second riser unit to the wheelchair. D2’s employees had no instructions, but fitting it was a simple job. This was done in October 2008. It appears that D2’s staff sawed a bit off the riser unit, but in a way which, the experts apparently agree, did not cause or contribute to the subsequent failure of the riser unit. It is clear, nonetheless, on D2’s evidence, that its employees modified the first wheelchair by fitting the second riser unit to it, modified the second riser unit in the way which I have just described, and (see below) assembled the ‘accident wheelchair’ from the second riser unit, thus modified, and a replacement chassis.

D1’s case is that the second riser unit was then fitted to a new chassis, which had been supplied by D1. D2’s documents support that case by showing that D1 supplied a new chassis in November 2008, after the second riser unit was supplied, and that the second riser unit was later fixed to the new chassis. It is clear on D2’s evidence that its employees assembled the wheelchair which failed in October 2009.

It is also D1’s case that the fitting of the new riser unit to a new chassis amounted to the production, by D2, of a different wheelchair from the wheelchair which D1 originally supplied to D2 (via D5) in 2007.

C’s case is that the (second) riser unit caused her accident. C’s case against D1 is that the wheelchair, including the riser unit, specified by D1, was ‘D1’s wheelchair’. A mechanic who fits a new engine to a Volvo does not produce anything other than a Volvo, argues C. D1’s case is that it was not its wheelchair. The (second) riser unit which caused the accident was produced by D4 and attached to the first, and then to the second, wheelchair chassis by D2. The wheelchair plus riser unit which failed in October 2009 was not, in any particular, the wheelchair plus riser unit which D1 supplied, fully assembled, to D5 in 2007.

C’s solicitors sent a pre-action protocol letter to D1 on 4 March 2010. It described the accident and referred to a Viper wheelchair with a seat tilt mechanism. C’s injuries (a rotator cuff injury to her right shoulder and serious bruising to her ribs) were described. She was still in pain.

Garwyn, the loss adjusters appointed by D1’s insurers, replied on 16 March 2010. They reserved their position about liability and said they would investigate. They asked if this was a fast-track case (the limit for such a case at the relevant time was £25,000); they would try to finish their investigation within three months.

C’s solicitors said in a letter dated 19 March 2010 that they were investigating where the wheelchair was. They said they understood it had been inspected by D2 and they attached copies of their letter to D2 and D2’s reply, dated 12 March 2010. ‘Currently’ they considered the case was fast track. They had asked D2 for copies of any photographs and inspection report in their letter of 17 February 2010, and where the wheelchair was. D2 replied with a holding letter.

C’s solicitors wrote to D1 on 12 April 2010. The letter said that attached were ‘a letter dated 30 March 2010’ from D2 ‘together with photos of the faulty wheelchair and the incident report form confirming that there was a failure on the part of the chair’.

The 30 March letter referred to ‘the visit report dated 27 October 2009’ and ‘the MHRA report’ (that is, a report to the relevant regulator). The letter said that D2 had the wheelchair. At the foot of letter, 2 documents were mentioned: the MHRA report dated 13/11/2009 and the visit report dated 27/10/2009. The visit report is headed ‘Date of Visit: 27^th October 2009’. On page 2, under ‘Actions’, it said, ‘JS to complete MHRA report’. ‘JS’ was the author of the visit report.

There is a dispute about whether the MHRA report was enclosed with the letter sent by C’s solicitors on 12 April 2010. But whether or not it was, a reasonably careful reader of the documents which, it does not seem to be disputed, were sent, would have realised that there was a missing document, that is, the MHRA report. A reasonably informed reader would have known, or taken steps to find out, that the MHRA was the relevant regulator, and would thus have appreciated that the MHRA report was likely to be important.

Asking C’s solicitors for the MHRA report would not have required onerous further investigation. All Garwyn needed to have done was to write a further letter; either to C’s solicitors, or to D2, the originator of that document. That limited further step was not disproportionate to the value of what was then thought to be a fast-track claim.

The MHRA report revealed that the ‘frame’ was replaced in ‘08/2008’. There is a dispute about what that means. I accept Mr Ferris’s submission that it must mean the seat riser frame, given what the documents from D2 show about the history of the wheelchair. The chassis was replaced later than June 2008.

On 6 May 2010, C’s solicitors asked Garwyn whether they intended to inspect the wheelchair, as they would like to be present. Garwyn replied on 3 June 2010 that ‘We understand that the wheelchair ….has already been inspected by our Principals insured’ (that is, it would seem, by D1). They had not yet decided whether a further inspection was necessary.

Garwyn admitted liability for the accident by a letter dated 14 June 2010. They had completed their inquiries. They ‘confirme[d] that liability is formally conceded’ and that they would not argue that C had contributed to her injury. They asked for medical evidence and a schedule of loss.

In the first action, C sued D1, and D2. The claim was issued in October 2012. In the particulars of claim dated February 2013, C pre-emptively defended an anticipated application by D1 to withdraw its admission of liability. C explains that D2 was joined because on 7 September 2012, D1’s solicitors said that others might have been responsible for the maintenance of the wheelchair. On 19 September 2012 D1’s solicitors suggested proceedings be issued against D2. As C puts it, D1 ‘hinted’ that it might withdraw its admission in September 2012.

On 29 April 2013, D1 applied to withdraw its admission of liability. That application was listed to be heard in August 2013, but C did not agree to that approach. The claim has been conducted on the basis that D1 wished to contend that it was not liable.

C issued proceedings against D4 on 6 June 2013 because, C says, in its defence dated 12 April 2013, D1 said D4 had made the defective riser unit.

C issued proceedings against D5 on 31 December 2013 because, C explains, by its amended defence, D1 suggested that the riser unit was serviced by the D2 and/or by D5, and that modifications to the wheelchair were done by D2’s authorised repairer, ‘possibly D5’.

On 12 September 2013, the court ordered in the first action that experts’ reports be exchanged so that contractual arrangements and any other potential defendants could be identified in order to enable the court to assess the merits of D1’s application to withdraw its admission of liability.

On D1’s applications, there was an order against C for disclosure in the first action and in due course an unless order. C applied for and was given relief from sanctions (on 29 September 2014). C was ordered to give disclosure.

D4 and D5 have served defences (in August and November 2014). Both raised limitation points, but both have since indicated they were not relying on limitation defences.

D5 applied on 23 February 2015 for an order dismissing the claim by C against it on the grounds that D5 was not involved in the replacement of the riser unit which was on the (second) wheelchair chassis when the accident happened.

There was a CMC on 3 March 2015 in all actions. The court ordered that D2 be substituted for the PCT. It was agreed between C and D2 and D3 that D2 assumed the PCT’s liabilities. Further directions were also given. D2 was ordered to say whether ‘the authorised repairer with the initials “TB” ’ was employed by D2. On 26 March 2015, D2’s solicitors ‘confirm[ed]’ that he was. At that stage, if not before, it was clear that D2’s authorised repairer was not D5.

On 16 April 2015 D1 was given leave to re-amend its defence and make a further claim against D4. In the re-amended defence, D1 denies that C could have been ejected from the wheelchair as she alleges. D1 also says that it is not the producer of the wheelchair in which C had her accident. D1 made various averments. I summarise them only.

7 August 2015, C applied for summary judgment against D2 on her contractual claim.

On 10 August 2015, D2 applied for permission to make a further claim for contribution or indemnity against D4 and for permission to amend its defence (the amended defence would completely replace existing defence). The gist of that draft amended defence is that D2 denies that there was any contract between it and C.

The cause of the accident was described as the total failure of the left tilt in space guide bracket on the left side of the wheelchair riser unit. It had completely sheared off. That bracket no longer exists. The right-hand bracket is visibly bent (and was cut up and tested by the metallurgist instructed by D1). The bracket sheared along the welds, but the metallurgist’s expert report shows that the welds did not fail; rather the tubing did, along the site of welding. This has led D4 to change the design of the riser unit, so that the brackets are now welded all the way round, rather than just being welded at the top and the bottom.

Extracts from the various experts’ reports quoted at paragraph 44 of C’s skeleton argument suggest that the cause of the accident was that the brackets failed, and, as C points out, there is no witness evidence to contradict her account of what happened. The expert evidence leaves room for doubt about the force with which, and the extent to which, the seat moved, but on balance does not, in my judgment, suggest that the seat did not move when the brackets failed. Nor did D2’s contemporaneous investigation cast doubt on C’s account. C submits, and I accept, that the differences in wording between the particulars of claim, letter before claim and her witness statement are not such as to suggest that there is a major flaw or inconsistency in her account.

D1’s case, however, that there is no physical mechanism to explain how C was propelled forwards and out of the wheelchair. This theory has some support in the expert opinions.

D2’s case is that C has ‘over-described’ the accident and that there is no credible medical evidence that it caused her right arm to become functionally useless. D2 refers to C’s long medical history, and suggests that she has shown ‘abnormal and hysterical signs’. I have read Professor Grimer’s report, which is the basis for that suggestion. The short point is that the medical evidence as a whole does not show that C’s symptoms are wholly functional; the fact that they do not have an obvious explanation may mean that they are, or that the medical experts cannot ascertain their cause.

D2 also suggests that there is not enough reliable evidence, for the purposes of C’s application for summary judgment, to suggest that C suffered any injury at all. C relies on the un-contradicted accounts of C and of her husband of what happened. She is recorded as making contemporaneous reports of bruising to her arm and torso. This is not a case where there is a choice between two rival factual accounts of the same incident. Mr Hunjan’s submission, rather, was that given C’s medical history, summarised by Professor Grimer, she was an inherently unreliable witness whose evidence should be tested at trial. I accept that this is an unusual case.

The issue is whether C’s history makes this such an unusual case that D2 has a real prospect of showing at trial that her evidence that she suffered any injury as a result of the failure the riser unit (let alone the disabling injury which she now says she suffered) should not be accepted. It is important to distinguish between the questions whether C suffered some injury, however slight, because of the failure of the riser unit, and whether the problems of which she now complains were caused by the accident. I consider that there is some prospect that D2 may be able to show that C suffered no injury at all as a result of the accident. But I consider that it is too remote to justify giving D2 leave to defend on the issue of liability. That does not prevent D2 from arguing, on quantum, that C’s current problems are not a consequence of the accident.

Contrary to the tenor of D2’s skeleton argument, Mr Hunjan accepted in oral argument that, pursuant to CPR16.5, D2 is to be taken to have admitted the existence of a contract between it and C in its defence. C’s averment in the particulars of claim that there was a contract is not denied, and D2 advanced in its defence no positive case about the agreement. D2 therefore needs leave to withdraw that deemed admission and leave to amend, if it is now to argue that the agreement was not a contract between C and D2. However, it makes sense for me to consider the merits of that argument first, rather than the question of permission to withdraw the admission, since if there is no merit in the argument, there would be no point in granting D2 permission to withdraw the admission.

Mr Bright argues that it is so clear that there was a contract, that it was breached, and that C suffered injury as a result, that C is entitled to summary judgment on those three issues. I will consider the arguments about the agreement below. The argument on breach is that it is clear on the evidence that the wheelchair failed, and that that, if nothing else, is a breach of the terms implied by sections 13 and 14 of the Sale of Goods Act 1979, and/or of the express obligation to repair and to maintain the wheelchair. Mr Hunjan did not advance any argument on this point. I consider that D2 has no real prospect of succeeding at trial on this issue, on the current state of the evidence. I have already considered the argument on injury.

So does D2 have a real prospect of succeeding at trial in its argument that the agreement is not a contract between it and C for the purchase of the seat riser by C from D2? The agreement is dated 31 January 2007. It provides, so far as is relevant,

“PART PURCHASE AGREEMENT

31 January 2007

I, the client,

Sue Wood…

I understand and agree that:

Following Shropshire Wheelchair Service’s assessment of my clinical need and their calculation of the cost to the Wheelchair Service of the Day’s Viper Powerchair which would meet my needs, I wish to purchase the Electric Seat Rise at a cost to me of £500, as an additional feature not supplied by the NHS Wheelchair Service.

Shropshire Wheelchair Service will purchase the main body of the wheelchair and all the seating requirements.

I understand and agree that I will pay the cost of the Electric Seat Rise to Telford and Wrekin Primary Care Trust Shropshire Wheelchair Service when invoiced.

The wheelchair and seating will remain the property of Shropshire Wheelchair Service and as such are on loan to me for my use. Repairs and maintenance of the chair, seating and riser will be met by Shropshire Wheelchair Service.

I hereby accept these terms and request that Shropshire Wheelchair Service supply from Days Healthcare a Viper powerchair and order on my behalf the Electric Seat Rise at a cost to me of £500.

Signed…S.E.Wood…… Date…2/2/07…..

I confirm that Shropshire Wheelchair Service agrees to the Part Purchase on the terms set out above.

Signed [illegible] Date…2/2/07.”

Mr Hunjan submitted that all D2 was agreeing to do was to place an order for C. D2 was not agreeing to supply or to sell the wheelchair to C. He placed much stress on the words ‘order on my behalf’. C wanted an additional item and because it was convenient, and to assist C, D2 ordered it for her. The purpose of the agreement was to ensure that there was record so that D2 would be reimbursed for the riser unit. The wheelchair was bought, in part by D2 and in part, by C. C bought the riser unit, but did not buy it from D2. In answer to a question from me, he said that she bought it from D1. D2 agreed to facilitate the purchase of the riser unit by agreeing to order it for C. D2 received no consideration for it at all.

He relied heavily on a document produced after the agreement to support his submissions. This was a document on D1’s notepaper, with D1’s name crossed out, and D5’s written in. He rightly accepted that the agreement could not be construed by reference to a later document. I do not consider that this document helps me to construe the agreement and I say no more about it. Indeed, later in his submissions, he said that it was not for D2 to explain this document. I note that it is possible (I put it no higher than that at this stage), in the light of a submission made by Mr Ferris, that this document may well be a document not only disclosed, but produced, by D2. I record, nonetheless, that Mr Hunjan did not accept that it was D2’s document.

He submitted that C provided no consideration for the agreement because D2 made no profit from it; C paid £500 and £500 was the cost of the riser unit. C knew that the order was placed with ‘someone else’. He also submitted that there was a ‘fatal flaw’ in C’s case because the agreement did not cover the second riser unit. It only applied to the wheelchair as originally supplied. The reference in D2’s witness evidence to a ‘failure under warranty’ was not to a warranty given by D2. The terms of the warranty were unknown. Any argument about whether the riser unit was fitted correctly to the chassis was for trial.

Mr Hunjan also submitted initially that if the agreement was a contract, this would have wide implications for D2. When I pressed him on this, he took instructions. He then said that cases in which an NHS body would provide a patient with extra equipment, and not as part of NHS services, would be rare. He was not able to tell me how many such cases there might be. I asked him if he was submitting that D2 had no power to make a contract with C for the purchase of the riser unit in this case and he said, after taking instructions, that he was not. Though he was invited by Mr Bright to make a case on the basis that D2 was making a contract as C’s agent, he did not do so. D2 has also denied in its defence that it made the agreement as D1’s agent.

Mr Bright, relying on R v Lord Chancellor’s Department ex p Nangle [1991] ICR 743, submitted that D2’s main argument was that there was no intent to create legal relations. The question whether there is such an intent is an objective one and it is to be answered, where the terms of the relationship are derived only from documents (or from a document), by construing the relevant documents or (document). He submitted that the document in this case, that is, the agreement, gave all the signs of being a contract. ‘Agreement’ and ‘agree’ recur. The document is signed by both parties. It records that C ‘wishes to purchase’ the riser unit ‘at a cost to me of £500’. She agreed to pay the cost of £500 to D2 when invoiced. D2’s representative signed the agreement and confirmed that D2 agreed to the part purchase ‘on the terms set out above’. Consideration passed under the contract from C to D2. The court is not concerned with the adequacy of that consideration or with the question whether D2 made a profit from the transaction (a point on which Mr Hunjan relied). C relied on the agreement and paid D2 £500 pursuant to it, a significant amount.

He asked, rhetorically, who was the seller of the riser unit to C, if not D2? His solicitors had asked D2’s solicitors in correspondence and received no reply. The agreement makes it clear that D2 is supplying the wheelchair, having bought it from D1, but does not say where the riser unit is coming from. I appreciate that there is, theoretically, a third possibility, which is that C had no contract with anyone. But it is no more than a theoretical possibility, given the terms of the agreement.

I accept Mr Bright’s submissions. The background to the agreement is that (to simplify the position) NHS bodies, by statute, provide NHS services to patients free of charge (unless and in so far as the legislative framework imposes a duty, or confers a power, to charge for a service provided as part of the NHS). The agreement, however, makes plain that the riser unit was not provided as an NHS service.

I bear in mind that this agreement does not seem to have been drafted by lawyers. Nonetheless, on an objective reading, there is no escape from the conclusion that it is a contract for the sale (by D2) and purchase (by C) of the riser unit, made against the background of a gratuitous supply (as part of the services provided by the NHS) to C by D2 of a Viper wheelchair procured by D2 from D1. If Mr Hunjan’s submissions are right, the outcome of the agreement is that C has bought a riser unit for £500, but does not know from whom, and so does not know who is liable if there is a fault with it, as the entity from which she is buying it (on D2’s case) is not named in the agreement. That is a construction which a court could only adopt if driven to it by the clearest words, and there are none in the agreement. The high point of Mr Hunjan’s case is that D2 is said to be ‘ordering’ (not ‘buying’) the riser unit ‘on behalf of’ C; but Mr Hunjan expressly disavowed any argument based on agency. The parties to the agreement are named. The only other entity which is referred to is D1 (from which, the agreement says, the wheelchair, but not the riser unit, is to be bought by D2). The agreement does not identify the source of the riser unit. In that situation, the only possible construction which is open to me is that C is agreeing to buy the riser unit from D2, and D2 is agreeing to sell it to her.

As I have said, Mr Hunjan submitted that, even if there was a contract between D2 and C for the sale and purchase of the original wheelchair, it did not cover the ‘accident wheelchair’, because the ‘accident wheelchair’ was not the wheelchair originally supplied to C in 2007. I reject that submission. Under the agreement, D2 clearly agrees to repair and to maintain the wheelchair, seating and seat riser. The replacement, first, of the riser unit, which was initially attached to the original chassis, and then of the chassis (to which the second riser unit was attached, having been removed from the original chassis) must have been carried out pursuant to the obligation to repair and maintain. It is true that neither of these two important components of the ‘accident wheelchair’ was a component originally supplied in 2007. But in my judgment, the ‘accident wheelchair’ is, nonetheless, conceptually, the wheelchair supplied pursuant to the 2007 agreement. It is the wheelchair bought by C from D2, as from time to time repaired by D2 pursuant to its express obligation to repair and maintain the wheelchair.

I have also considered a point made by Mr Coles in the course of his submissions about the clause ‘The wheelchair and seating will remain the property of Shropshire Wheelchair Service…’. He suggested that this negatived any intention to sell, as property passes on a sale. Of course that is right, but it is important to focus on what property, on the proper construction of the agreement, is retained by D2. In my judgment, the agreement distinguishes between, on the one hand, the wheelchair and the ‘seating’, and, on the other, the electric seat rise. D2 retains the property in the wheelchair and in the seating, but not in the seat rise. It would, in any event, be odd if D2 were to retain property in an item which, the agreement recites, C wishes to ‘purchase…at a cost to [her] of £500’, whereas, by contrast, because D2 is supplying the wheelchair and seating to meet her needs, as part of the NHS, it would make sense for the agreement to provide that property in those should not pass to C. The agreement is described as a ‘part purchase agreement’. That description reinforces the view that under it, C buys part of the ensemble, that is, the ‘additional feature’ which is not required to meet her assessed needs (and is therefore not to be provided to her for free – on loan or otherwise – as an NHS service).

For those reasons, I give summary judgment to C on the questions whether or not

I also give leave to D2 to amend its defence in order to claim contribution from D1 and D4.

CPR PD 14.7.2. provides that when a court is considering whether to allow a party to withdraw an admission, it must take into account all the circumstances, including the matters specified in that sub-paragraph. ‘All the circumstances’ must mean such of the circumstances as, in addition to those listed in PD 14.7.2, the court considers are relevant on the facts before it. As will appear when I consider the factors listed in paragraph 7.2, there is some overlap with each other, at least on the facts of this case.

The first listed factor is the grounds on which the application is made, including whether there is new evidence since the date of the admission. In my judgment there is no new evidence about the circumstances of the accident. The admission was made after D1 inspected the wheelchair which failed. That inspection would have shown that the wheelchair had a riser unit fitted to it, albeit that it would not have shown (though D1’s records might well have shown, and D2’s records did show) that it was not the original chassis and riser unit. However, if it is assumed in D1’s favour that C’s solicitor did not send the MHRA report in April 2010, a reasonably diligent investigator would have realised in April 2010 that an important document was missing, and would have asked for it then. So had the defendant taken reasonable steps to investigate in April 2010, it would have discovered that the ‘accident’ wheelchair was not the wheelchair which was originally supplied by D1 via D5.

It is true that the potential value of C’s claim has increased since 2010; and that is the real ground for the application. But that is a risk which is inherent in any personal injuries claim, and is a reason why it can sometimes be commercially advantageous to try and settle a claim at an early stage. I accept Mr Bright’s submission that D1 took a commercial decision to avoid the costs of fighting liability in what it then thought was a low-value claim. I also consider that as experienced loss adjusters, Garwyn took a calculated risk that the value of the claim might increase after the admission. I do not consider that the fact that potential value of the claim has increased since the admission is a good reason for allowing D1 to withdraw the admission.

The next factor is the conduct of the parties, including any which led to the admission. I heard many submissions on the issue of delay. D1 and C both referred to periods of delay between D1’s admission of liability, its indication that it wished to resile from its admission, and the hearing this year. In my judgment, since C knew before she issued her claim, and D2 knew once it saw D1’s defence, that D1 was repudiating its admission, the relevant period of delay is the delay between the admission (in C’s case, when D1 first indicated its changed position) and in D2’s case, the date D1’s defence was served. D1 acted promptly once proceedings were issued, and it does not seem to be D1’s fault that its application was not heard in 2013, when it was first listed, still less that it has taken until February/March 2016 for the application finally to be listed.

C argues that about a year has been lost because of D1’s application for disclosure from C which led, eventually, to an application by C for relief from sanctions and an order that C make disclosure. Since the court did order C to make disclosure, and gave C relief from sanctions, I do not consider that D1 can be criticised for this for making that application (or for the time it took for the application to be determined). The orders made by the court suggest that the application for disclosure was justified.

D2 criticises C for waiting until close to the end of the limitation period before issuing her claim, and D1 argues that it could not apply to withdraw its admission until C had issued proceedings. Once C did so, D1 made the application promptly. I consider that given the admission by D1 in early 2010, C cannot be criticised for not issuing sooner; nor can she be criticised for issuing when she did, and joining D2 and D3, in the light of D1’s indications that others might have modified the wheelchair, and that it was considering applying to withdraw the admission.

The crucial period is that between the date of the admission and the time when D1 indicated it was going to resile from it. I am not in a position to make definite findings about D1’s thought process, or about whether it received the MHRA report in 2010. D1’s solicitor, Mr Neal, has asked Garwyn about what was in its file. He reports that Garwyn have sent him copies of what was in the file, and they did not include that MHRA report, but I have no direct evidence from Garwyn. There is no witness statement from C’s solicitors, but I was told on instructions that, in any event, it is not possible to tell from their file what enclosures are sent with a letter, as copies of the enclosures are not kept in the file. The enclosures are not listed on the letter of 12 April 2010. Mr Ferris pointed out that there have been other occasions when C’s solicitor appears not to have included relevant documents with a letter. On balance, on the material I have seen, I consider it more likely than not that C’s solicitor did not send the MHRA report with the letter of 12 April 2010, but that he did send D2’s letter of 30 March 2010, the photographs and the visit report. I do not consider that it is likely that Garwyn would have admitted liability if they had read the MHRA report in 2010.

l infer that when D1 realised that C’s injuries might be more serious than C had initially suggested (‘Currently we consider this case will fall into the fast track’), and that damages, rather than being a maximum of £25,000, could be in the region of £300,000, it looked more closely at the documents it had. I am not able to say whether it realised that it had not been sent the MHRA form. It is surprising that, if all that was missing was the MHRA form, D1’s solicitors asked, in their letter of 15 August 2012 to C’s solicitors for further copies of the enclosures sent with the letter of 12 April 2012 to Garwyn, ‘that is the letter from [D2], together with the photographs and Incident Report, as these would appear to be missing from our file’. That letter suggests, not that one document was missing from Garwyn’s file, but that all the enclosures were. That letter, therefore, is not entirely consistent with Mr Neal’s evidence about what he was told about the state of Garwyn’s file. If D1 supplied a further riser unit to D2 at D2’s request (as D2’s documents suggest it did) it is also somewhat surprising that D1 did not know from its own records that it had separately supplied the replacement riser unit to D2 (as it had failed during the warranty period). However Mr Ferris tells me that that evidence is disputed by D1, and on the balance of the documents, it could be that the second riser unit was in fact supplied direct to D2 in 2006. D1 is to blame for the delay between the date of the admission and the first intimation that it would be withdrawn.

I do not consider that C can be criticised for any conduct which led to the admission. Even if the MHRA report was not sent to D1 in April 2010, any such failure did not in any material way cause the admission (see above). D1’s conduct, on the other hand (see above) is open to criticism. If the MHRA report is as significant as Mr Ferris submitted, D1 had the means of obtaining it before it made the admission. In my judgment, the relevant conduct factors point against allowing D1 to withdraw the admission. I deal with further factors which were relied on by C in the context of prejudice, below.

The next relevant factor is prejudice that may be caused to any person if the admission is withdrawn. Both C and D2 rely on such prejudice.

The main prejudice which would be caused to C is that (leaving to one side the outcome of her application against D2), she would lose a certain claim against D1, and face continuing her claims against D1, D2 and D4, in circumstances where each defendant denies liability.

She also complains that on two occasions, in 2010, and in 2013, the conduct of D1’s advisors deprived her of an opportunity to conduct a joint inspection the wheelchair. Mr Neal, D1’s solicitor, explains that on 2 January 2013, D2 told him that the wheelchair was available for inspection. He then received a letter from C’s solicitor, dated 14 January, which showed that C thought that the wheelchair had been disposed of. He did not correct this mistake. He assumed D2 would tell C that it was available for inspection. C submits that he should have arranged a joint inspection. C submits that being deprived of that opportunity caused her prejudice because of an issue which was developing about the possibility that the use, or misuse, of the wheelchair might have contributed to failure of the riser unit.

She also argues that the surviving bracket has now been sawn up by D1’s expert, before any expert could inspect it for her. There may be limited force in this point, because her expert adopts the conclusions of D1’s metallurgist. She also argues that by time the wheelchair was inspected, it was in a terrible state. It had been stored outside with rubbish (as photographs in the bundle show). She argues that if D1 is allowed to resile from its admission, it will be difficult for her to counter the claim that extraordinary stresses caused the riser unit to fail. Who can say whether or not the wheelchair was damaged in the years when it was left unattended, out of doors, by D2, asks C rhetorically.

If D1 had not made the admission when it did, it is likely, in my judgment, that C would have pressed to inspect the wheelchair herself at a very early stage, when it was in better condition. Moreover, if she had done that, it is very unlikely that the wheelchair would have been stored outside by D2, apparently with assorted rubbish. C has, putting it at its lowest, suffered an intangible prejudice and sense of injustice which comes from having lost the opportunity to inspect the wheelchair immediately after the riser unit failed. That sense is exacerbated, even if marginally, by her complaint that D1 apparently knew that C mistakenly thought the wheelchair had been disposed of, and did not correct that mistake (see C’s skeleton argument, paragraph 96).

She also argues that D1 and D4 no longer have relevant documents because of events since, or at, or around time of, the admission; D1 sold its business in June 2010; and D4’s solicitors say that historic paper records about testing were destroyed in 2012; they also suggest that documents relevant to the CE mark on the riser no longer exist. If D1 is allowed to withdraw its admission, in sum, the investigation of C’s claim will be prejudiced and there will be more delay while the various issues are litigated.

D2 also argues that it will suffer prejudice if the admission is withdrawn. While D2 seems to have reasonable records, and to have conducted its own (albeit somewhat limited) investigation promptly, it had no notice of the claim by C until over 2 years after the accident. As Mr Hunjan pointed out, D1 has had the advantage, with notice of the claim, of having investigated promptly, when it would have been easier to find relevant documents, and of having inspected the wheelchair very soon after the accident. It is inevitable that memories will have faded in the meantime.

The next listed factor is the prejudice that may be caused to any person if the application is refused. The only party who would suffer prejudice if I refuse the application is D1. The prejudice it would suffer is that it would be prevented from running a credible defence. I say more about this below.

The fifth factor listed in paragraph 7.2 is the stage in the proceedings at which the application is made, in particular in relation to any date fixed for trial. As Mr Ferris pointed out the application could not be made before the proceedings were commenced. It was made at a relatively early stage. Indeed, in her particulars of claim, C sought to meet such an application, which, at that stage, she anticipated, even though it had not yet been made. The delay by D1 was between the date of the admission, and its realisation, on further investigation, that it might have a defence to a claim which appeared to be more valuable by the summer of 2012 than the claim which was first intimated in early 2010. That means that this factor is neutral rather than telling in favour of D1, given the delay between the admission and D1’s first hint that it might withdraw the admission. I of course accept that the application was made at an early stage in the proceedings, and as no trial date has yet been fixed, it has not in any way impinged on a trial date, or delayed it.

The sixth factor is the prospects of success of the claim if the application is withdrawn. Mr Bright submitted that C has a strong case against D1 on liability which is very likely to succeed even if D1 is permitted to resile from the admission. I would not put it as high as that. Mr Ferris argued that the case that D1 was the producer of the wheelchair was flawed on a number of different grounds. I do not need to rehearse the arguments here in detail. I have explained the basis of those arguments. In short, he submitted that the evidence suggested that the ‘accident’ wheelchair had been ‘produced’ by D2 and/or by D4. D2 had assembled it from separate parts, and the provenance of the second riser unit was unclear. Moreover, the evidence that D4 had produced the riser unit to a tight specification by D1 was not clear, and it was the (second) riser unit, rather than the (second) wheelchair chassis, which failed. The riser unit’s CE marking was still on the second riser unit and it identified D4 as the producer of the riser unit. I consider that D1’s prospects of defending a claim that it was the producer of the accident wheelchair are reasonable, and it follows that C’s prospects of establishing such a claim are far from certain.

A further factor listed in the PD is the interests of justice. In my judgment, the interests of justice include finality; but also a fair outcome. Those two considerations are in tension with each other in this case. It would not be fair to D1 to prevent it from running a good defence to C’s claim that D1 was the producer of the ‘accident’ wheelchair. On the other hand, D1 made an admission on professional advice, having had a good opportunity to investigate the facts and to inspect the accident wheelchair, and should, in the interests of finality, be held to that admission.

Mr Ferris submitted that if D1 is held to its admission, and is not in fact liable, it will have difficulty in recovering contribution from the parties who are. That, on its face, seems to be powerful point in favour of allowing D1 to withdraw its admission. But there are two answers to that. First, any such difficulty is part of the calculated risk which D1 took in making the admission in the first place, on the basis of an investigation which was not as thorough as it might have been. Second, the argument is circular. If D1 is not permitted to withdraw its admission, judgment will in due course be entered against it. That, whatever the underlying merits of C’s claim against D1, will be the basis of D1’s liability to C: see BRB v Connex South Eastern Limited [2008] EWHC 1172 (QB); [2008] 1 WLR 2867, paragraph 18, per Cranston J. In that case D1 admitted liability by mistake, and in due course, C entered judgment against it. Cranston J held that the judgment itself gave rise to a liability on the part of D1 for the purposes of the Civil Liability Contribution Act 1978, and that it could therefore claim a contribution from D2 (who was in fact liable to C). On analysis, therefore, D1’s ability to claim a contribution from D2 and D4 is a factor which tells in favour of holding D1 to its admission.

I should make clear that I do not consider that the fact that I have given summary judgment against D2 on C’s contractual claim against D2 is a reason for allowing D1’s application to withdraw its admission. C has, in my judgment, reasonably issued claims in contract, under statute, and in tort against D1, D2 and D4. I will consider her claim against D5 below. She had (at least potentially) concurrent causes of action against those defendants, and it was not apparent to her, at least initially, which of them might be liable to her, and if so, on what basis. D1 admitted liability in relation to one of those concurrent causes of action, but then suggested that another defendant might be liable instead. Contribution proceedings are a mechanism by which the defendants can establish, inter se, the extent of their liabilities (or otherwise) in respect of the extent of the injury which C is able to establish flowed from the accident. As a matter of logic, the liability of one defendant which is admitted, proved or established by other means in respect of one cause of action does not extinguish that of another defendant in respect of a different cause of action.

For these reasons I dismiss D1’s application to withdraw its admission of liability and its concession on contributory negligence.

It is not necessary for me to consider this application in as much detail as the cross applications by D2 and C and the application by D1. Mr Coles spent most of the final morning of the hearing taking me, with great skill, through the relevant documents. He submitted that there was, on the basis of the evidence as it now stands, which he showed me in detail, no factual foundation for a claim by C against D5. The material parts of that evidence, he submitted, had simply not been contradicted by C. It seemed that C had made a claim against D5 because of a suggestion in a pleading by D1, which has since been withdrawn, that D5 was D2’s ‘authorised repairer’. In the light of D2’s letter of 26 March 2015 (see above) it was clear that D5 was not D5’s authorised repairer.

When Mr Coles had finished his submissions, I asked Mr Bright what the factual basis of C’s claim against D5 was. His answer, with all due respect, was to avoid the question. The effect of it was that, if I were to grant summary judgment against D2, he accepted that C had no claim against D5. I asked him the question again, but he did not engage with it.

My findings on this issue, in sum, based on the evidence which Mr Coles showed me, are

In the light of those findings, my decision on D5’s application is that C’s pleaded case against D5 does not disclose any reasonable grounds for bringing her claim and I strike it out pursuant to CPR 3.4(2)(a). If and in so far as it is necessary for me to do so, I also give D5 summary judgment against C pursuant to CPR 24.2(a) on the ground that her claim against D5 has no reasonable prospect of success.

As I indicated, I propose to deal with consequential matters by written submissions, unless, for any reason, the parties consider that a further hearing is necessary. I invite the parties, to the extent that they can, to do their best to agree any outstanding issues, and to submit a draft order which reflects those matters they have been able to agree, and those on which they require a further decision or decisions.