Q&As

If a defendant tells the court that it is withdrawing its defence in full, a matter of a few days before the trial, what are the implications? Do issue estoppel and cause of action estoppel apply?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 15/10/2020

The following Dispute Resolution Q&A produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • If a defendant tells the court that it is withdrawing its defence in full, a matter of a few days before the trial, what are the implications? Do issue estoppel and cause of action estoppel apply?

If a defendant tells the court that it is withdrawing its defence in full, a matter of a few days before the trial, what are the implications? Do issue estoppel and cause of action estoppel apply?

There is no procedure contained within the CPR which allows for a party unilaterally to 'withdraw' a statement of case. Although a claimant can discontinue their claim, using the procedure set out in CPR 38, this specifically does not apply to defendants and there is no provision for the discontinuance of a defence to a claim. It is therefore not open to the defendant simply to seek to withdraw its defence. By CPR 17.1, if a statement of case has been served, a party may amend that statement of case only with the written consent of all of the other parties or with the permission of the court. If the defendant wishes to resile from its defence it would therefore require the permission of the court to replace it, even if that were to be a replacement with no defence.

In circumstances where the defendant is given permission to amend a defence that has already been served so as to replace it with one that contains no defence they will be taken to have failed to deal with all the allegations in the claim and so taken to admit all

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