[1990] SILR 126

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 43 of 1989

CROSS

v

ATTORNEY GENERAL

High Court of Solomon Islands
Ward CJ
Civil Case No. 43 of 1989

Hearing: 5 July 1990
Judgment: 5 July 1990

Civil Procedure - High Court (Civil Procedure) Rules O.34 r.4 - withdrawal of admission.

Facts:

The Plaintiff claimed damages for injuries caused to the Plaintiff by a prisoner serving a prison sentence when he was working outside the prison compound. The Permanent Secretary of the Ministry responsible for prisons admitted liability. The Defendant sought to withdraw that admission under O.34 r.4.

Held:

1. The admission by the Permanent Secretary was not covered by Order 34 rule 4 relied upon by the Defendant.

2. The fact that the Permanent Secretary made the admission was a matter to be considered in the trial.

Cases referred to:

Hollis v Bunton [1892] 3 Ch 226
H Clark Ltd v Wilkinson [1965] 1 All ER 934

Legislation referred to:

High Court (Civil Procedure) Rules 1964, O.34 r.4

J Corrin for the Plaintiff
R. Teutao for the Defendant

WARD CJ: This is a claim for damages for injuries caused to the plaintiff by a prisoner serving a prison sentence when he was working outside the prison. The scale of injuries suggests the sum involved is likely to be very high. At an early stage, the solicitor for the plaintiff wrote to the Ministry responsible for prisons, copied to the Attorney General, asking if liability was admitted. Some weeks later the Permanent Secretary of the Ministry wrote and referred to "fault" by the Prison Service and a "miscalculation" and went on to say

And in view of this Government will have to accept liability for failing to provide proper supervision and any other related facilities.

On 21st April, 1989, the plaintiff sought entry of judgment on the basis of that admission and I refused that application. I have, since then, ordered that the issue of liability be tried before the issue of damage. There has been discovery and interrogatories and the defendant now seeks under O.34 r.4 to withdraw the admission made by the Permanent Secretary in his letter to the defence solicitor. I have refused that application and said I would give my reasons later. I now do so and can state them quite briefly.

O.34 r.4 provides for the issue of a notice to admit and the second proviso reads:

Provided also, that the Court may at any time allow any party to amend or withdraw any admission so made on such terms as may be just.

The admission in this case was not made in this way and is not covered by the rule.

Mr Teutao suggests that admission was made as the result of a mistake and so may be withdrawn on the authority of Hollis v. Bunton (1892) 3 Ch 226. Similarly, he argues that, as an admission by counsel may be withdrawn, he should be able to withdraw that admission; H Clark Ltd v. Wilkinson (1965) 1 All. E.R. 934. I feel those cases are both clearly distinguishable from the situation here and do not help him.

When opposing the application for judgment on the admission, Mr Teutao disputed the right of the Permanent Secretary to make any such admission. That is his case and is a matter the Court will have to decide. The fact the Permanent Secretary made such an admission is a matter to be considered in the trial. Whether he was correct or whether he had any authority to make it are all matters the Court will have to decide when considering the evidence in the case.

The application, as I have already ruled, is refused.

Costs to the plaintiff.