This week John Schmitt covers a decision regarding a Defendant seeking to withdraw from a pre-action admission of liability: ๐๐ง๐๐ฎ๐ฌ๐ญ๐ซ๐ข๐๐ฅ ๐๐๐ข๐ง๐ญ๐๐ง๐๐ง๐๐ ๐๐ง๐ ๐ข๐ง๐๐๐ซ๐ฌ (๐๐๐ ๐๐จ๐ง๐ญ๐ซ๐๐๐ญ๐ฌ) ๐๐ญ๐ ๐ฏ ๐๐๐๐ฌ๐ญ๐๐ซ ๐๐ข๐ฅ๐ฅ๐๐ซ ๐๐ญ๐ [2026] ๐๐๐๐ 393 (๐๐จ๐ฆ๐ฆ). In this most fiendishly difficult of procedural areas, he is a most welcome and erudite guide. Meanwhile, ๐๐ข๐ง๐๐ ๐๐๐ฅ๐ฌ๐จ๐ง examines another case involving a service point revolving around service by email, usually but by no means always a dangerous enterprise.
In other news, we were intrigued to note recently that the Court of Appeal has provided a further elucidation of the decision of the ๐๐ซ๐ข๐๐๐ข๐ญ๐ก๐ฌ ๐ฏ ๐๐๐ [2025] ๐๐๐๐ 48, familiar to all our readers. In a very different context, in ๐๐ (๐๐๐ค๐ข๐ฌ๐ญ๐๐ง) ๐ฏ ๐๐๐๐ซ๐๐ญ๐๐ซ๐ฒ ๐จ๐ ๐๐ญ๐๐ญ๐ ๐๐จ๐ซ ๐ญ๐ก๐ ๐๐จ๐ฆ๐ ๐๐๐ฉ๐๐ซ๐ญ๐ฆ๐๐ง๐ญ [2026] ๐๐๐๐ ๐๐ข๐ฏ 473ย the Court commented [78]:
โIt is necessary to identify, first, the nature of the โruleโ which was at issue in TUI. The rule is not a rule that (subject to exceptions) a party to litigation may not make submissions impugning the credibility or reliability of the evidence of a witness unless the witness has been cross-examined about those points. The rule as explained in the cases summarised by Lord Hodge is narrower than that. It is based on fairness, and on the principle, referred to by Bean LJ in his dissent, that litigation should not be conducted by ambush. The rule does not apply if the witness already knows, because the questions have been articulated earlier in the litigation, that his evidence is disputed, and, he is not, therefore, taken by surprise. The rule, rather, is that if he does not know in advance about the disputed matters, and has not been cross-examined about them, submissions cannot be made impugning his credibility (unless an exception to the rule applies).โ
It is now clear, if it were not before, that the rule articulated in Griffiths does not operate โ as some commentators have believed โ as a quasi reversal of the burden of proof, but rather as a procedural safeguard intended to ensure fairness in the most general sense. As such it is really an expression of the overriding objective, perhaps nothing more.
๐
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