Part IV

admissions of liability

4.1 It is obvious that the interests of the elected members of a local authority and their insurers might conflict. Whereas the members may wish to fulfil their political obligations by absorbing criticism and promising to compensate victims, when they think something has gone wrong with the delivery of their services, the insurers will be concerned about the disclosure of statements and documents that might prejudice their chances of a favourable settlement. Hence insurers often include a condition to prevent the authority from admitting liability without the insurer’s consent, as described in the previous Part.[1] In this Part we examine what might amount to an admission of liability in this context.

The different kinds of liability

4.2 It should be borne in mind that the authority, and the insurer, will be concerned about admissions both where the authority’s liability is primary and direct, and where it is vicarious.[2] It is likely that only an employee of some seniority would be capable of making an admission of primary liability that would bind the authority, but any employee or member might make an admission of fact on which a claim of vicarious liability for the tort of its employees, or direct liability for breach of its own duties could be founded. In many cases, if the facts are as admitted, direct liability of the local authority will follow inevitably from the failures in supervision or procedural failures.

Definition of an admission of liability

4.3 The insurance contract refers only to admissions of liability, but the question arises whether the prohibition on admissions of liability extends to admissions of fact, because of the inferences that could be drawn from them. Our provisional view is that a distinction can be drawn in law between admissions of fact and admissions of liability. In Terry v Trafalgar Insurance Company Ltd oral and written admissions of liability were made by the plaintiff after a road accident. He pleaded that the condition in his insurance policy preventing an admission of liability was contrary to public policy because it would cause the insured person to lie about what had happened, or at least conceal the truth. His Honour Judge Graham Rogers, sitting in the Mayor’s and City of London Court, in dismissing this argument, stated that

There is a world of difference between giving a factual account of what happened, without giving any expression of opinion as to blame, and an admission of liability.[3]

4.4 While some statements can be easily classified as a purely factual account or, at the other extreme, as an admission of liability, we appreciate that sometimes there may be a very fine line between what is a statement of a fact and what is an informal admission of liability, especially where an inquiry report directly cites evidence provided by the council’s employees to the inquiry panel. At paragraphs 4.16 – 4.17 below we give an example to illustrate the difficulties of distinguishing between statements of fact and admissions of liability.

4.5 The significance of an admission lies in the procedural rules governing civil proceedings: an admission made during the course of an inquiry or in response to an inquiry report can be admissible as evidence in subsequent proceedings against the local authority.

4.6 A formal admission is one made by a party which admits the whole or part of the truth of another party’s case in the proceedings, in writing by letter or in statement of case.[4] Admissions may be implied as well as express, but they must be clear.[5] If the defendant (for present purposes, we are assuming this to be the authority) makes such an admission, the claimant can apply for summary judgment on the admission.[6]

4.7 A formal admission would not be made without proper consideration by the legal officers, and appropriate consultation with insurers where necessary, but informal admissions are a different matter. An informal admission is a statement made by a party (or by some person by whose admission a party is bound as a matter of law)[7] from which the court would be entitled to, but is not bound to, find facts or draw inferences adverse to the case of that party.[8] These informal admissions are admitted as evidence by Civil Evidence Act 1995, section 7(1). They are not determinative of the issue but the court can give whatever weight it considers appropriate to the admission.[9] The weight to be attached to the admission increases with the knowledge and deliberation of the speaker, or the solemnity of the occasion on which it was made.[10]

4.8 Additionally, any out-of court statement made by a party to the claim or by anyone else can be admitted as evidence against the authority under Civil Evidence Act 1995, section 1. Statements by third parties, however, will not be “admissions of liability” as described in the insurance contract and therefore will not affect the authority’s insurance cover.

4.9 Previous statements of witnesses are admissible in evidence with the leave of the court.[11] The statement can thus be adduced to support or undermine any oral evidence given by that party.

What actions will constitute admissions?

4.10 The issue of what actions constitute admissions subdivides into four: first, whether admissions may be made by officers or council staff to the inquiry. Secondly, whether the reception of the report by the council can constitute an admission of liability. Thirdly, whether adoption or endorsement, including publication,of the report can amount to an admission. Fourth, what public statements might amount to an admission of liability, and if so when. The answers to these sub-issues may vary according to whether the inquiry is independent (type 5) or internal (type 6).[12]

Admissions made by members, officers or staff during the course of the inquiry

4.11 An authority will want to be aware to what extent, and how, the oral and documentary evidence its members, officers or staff give to an inquiry might amount to an admission of a relevant fact or an admission of liability which could be relied upon in later proceedings by a claimant. The claimant could have access to that information, even if the inquiry is held in private, because in some circumstances, the evidence given to the inquiry will have to be made available for public inspection as a background paper to the report when it is being considered by the council.[13]

4.12 Oral evidence presented will never amount to a formal admission because a formal admission must be in writing, but oral statements made to the inquiry may amount to an informal admission.

4.13 It will only be where a person, whether employee or councillor, has authority to speak for the council that an admission could be construed as an admission of primary liability. If a person giving evidence sought to admit liability as a whole for the council, this would be beyond their authority so no statement would bind the authority as a matter of law.[14]

4.14 Even without expressly admitting liability for the authority as a whole, an officer or member giving evidence to an inquiry might make relevant admissions of facts from which an inference of primary or vicarious liability could be drawn. We anticipate that most oral or written admissions made to an inquiry would result in vicarious liability for the authority, rather than primary liability of the authority. Primary liability might follow where the person giving evidence is sufficiently senior for an oral or written admission of fact to amount to evidence of executive acts carried out by the authority. Hence any statement of this nature would not constitute a binding admission of liability, but it could be admissible in evidence. This is because section 1 of the Civil Evidence Act 1995 renders admissible an out-of court statement whether made by a party to the claim or by anyone else. The relevance of whether or not there is a relationship of agency or privity goes to the weight that the court will attach to the statement.[15]

4.15 To this end, we have used the following example to help clarify at what point statements made to the inquiry can amount to an admission of liability.

4.16 Our typical situation involves the report of an inquiry into allegations of abuse and neglect in homes for the elderly where a former resident is now bringing an action for negligence directly against the authority and also based on the vicarious liability of the authority for the acts and omissions of its employees.

4.17 If the nurse stated “I failed to follow the standard procedures in respect of monitoring medication given to patients,” the issue is far from clear cut. Although this is a factual statement, the court might well be able to find facts or draw inferences adverse to the authority, because a failure to follow set, mandatory procedures could entitle the court to draw the conclusion that the nurse was in breach of the duty of care owed to patients in his or her care and/or that the authority’s supervisory systems were inadequate (resulting in possible direct liability for the authority).

4.18 Hence we consider that authorities and their insurers may be right in certain instances to be concerned with even strictly factual accounts given to the inquiry team, where adverse conclusions can be drawn from those factual accounts. But once the decision is taken to set up the inquiry there would be little point in officers, members and employees of the authority presenting evidence to the inquiry if the insurers considered that mere statement of bare facts would amount to informal admissions of liability.

Admissions made by the authority on receiving the report

4.19 In order to assess whether admissions can be made where the authority reacts to the report, the procedure used for the reception and adoption of reports must be examined.[16]

The procedure for reacting to a report

4.20 We envisage that the report of the inquiry will be presented, in the first instance, to the body commissioning the investigation. Hence if the Policy and Resources Committee commissioned the inquiry, our understanding is that the report would be placed before that committee.

4.21 It may be that the report is of such concern to the elected members that it is more appropriate to discuss its findings in a meeting of the full council, in which case the report might be presented to the full council.[17] Such a procedure is most likely to be invoked where there is a good deal of public interest in the matter under investigation or the issue involves constituents of a councillor’s ward not represented on the Policy and Resources Committee.

4.22 If the report is likely to contain sensitive material excluded from the Access to Information Act 1985 regime then the report can be dealt with under part 2 of the agenda of the meeting, whereby the press and public can be excluded.[18] If the report is to be discussed at a meeting open to the public, we do not consider that making the report available in advance of the meeting would constitute any approval of its contents or any admission of liability.

4.23 We anticipate that a covering paper from the relevant officer will normally be attached to the report, explaining the relevant background, and what action is proposed. The report of the officer might also include policy advice on whether or not the recommendations (if any) should be adopted. This policy advice may include legal advice on whether or not a wholesale adoption of all or any of the findings or recommendations could amount to an admission. We assume that, in such a case, the officer would have ensured that the obligation to seek the consent of the insurer was complied with.

4.24 The council’s response to the report may be simply that its contents were noted. This is unlikely to constitute a binding admission of liability, as it does not imply approval of the report’s findings. (In the Clwyd case, counsel thought the findings could simply be noted.) This will apply a fortiori if the report’s authors are independent of the authority. The report will be listed in the minutes of the meeting. We consider that the mere listing of a report in the minutes of a committee or council meeting is insufficiently emphatic an approval of its findings to amount to an admission. The minutes of the meeting will however be admissible in evidence to prove resolutions contained therein.[19]

Admissions made by the council on adopting the report

4.25 Alternatively, the council may also choose to adopt the report. If a resolution is passed in committee or full council that expressly admits, or the effect of which is to admit liability in respect of incidents clearly identified in the report, then that resolution may constitute an informal admission. Whether it does will depend upon the level of detail contained in the report, and the specific nature of the findings and/or recommendations. If for instance, one of the report’s conclusions read “between 1980 and 1990 there were failures in respect of the supervision and training of staff in care homes” it is unlikely to be sufficiently specific enough to amount to an admission of negligence in respect of individual children within specific care homes. On the other hand, a finding that “teacher C physically assaulted pupil D on 12 May 1997”, if adopted, could constitute an admission for the purposes of a civil case of assault.

4.26 Hence, any covering note, the language of the report itself, coupled with the wording of any resolution passed by the authority, may amount to an informal admission. For instance, a resolution may be passed that “the committee (or council) endorses the findings and recommendations of the report.”[20]

4.27 As we note in paragraph 4.23, at the point where the council is considering formally how to respond to an inquiry report, the officer presenting the report to the authority will have checked what obligations the authority might have under its contract of insurance and, as described at paragraph 3.22 above, it is likely that there will be an express term in the insurance contract forbidding an admission of liability without the insurer’s consent. Therefore, if an authority made an admission such as the one in the paragraph above without the consent of the insurer, the insurer would be entitled to refuse to indemnify the authority for any claims arising out of the statement, because the authority would clearly be in breach of the express term. In this regard, the authority is in the position of a private body, and it is bound by its contractual obligations. The authority should not consider making an admission at this stage without having consulted with the insurer.

4.28 In some cases, the inquiry panel will not have been charged with determining the legal liability of the authority, and even if it has reached conclusions adverse to the authority, liability to individual claimants will not follow automatically. In other cases the authority’s liability (vicarious or primary) will be clear. It is possible in theory for the insurer to withhold consent to the admission even where liability is clear;[21] each claimant’s case will have to be considered individually. We discuss this potential problem further in Part VII, and ask consultees how far this is a problem in practice.

Acting on the report

4.29 The purpose of an inquiry will usually be to identify necessary improvements to the authority’s practices, and to prevent a recurrence of whatever has been found to have gone wrong. Therefore, it is highly likely that the authority will wish to consider and pass resolutions on certain actions, in the light of the report. The question then arises whether, even if the council does not formally approve the report, if it resolves on changes in policy or practice as a result of the report, those resolutions could be construed as evidence of relevant admissions. Much may depend on the degree of specificity of any proposed changes of policy or practice. For example, the accompanying officer’s report might state that, in the department’s view the findings of fact are not borne out, but the department approves of the recommendations. The council could then adopt the report’s recommendations, while merely noting its findings of fact, but this seems in danger of being artificial unless there were sound reasons for rejecting the factual findings while accepting the need for changes.

Publication

4.30 The recommendations of the officer presenting the inquiry report to the council or committee will no doubt have a significant impact on the authority’s decision whether to publish the inquiry report, and in what form. At the minimum, though, it seems to us that some form of publication is possible even if the authority has not endorsed the findings of the inquiry. The authority could publish an inquiry report, or an abbreviated and anonymised version of it, whether internal or independent, with an accompanying statement to the effect that it is being published in the interests of putting the information into the public domain, as a matter of public interest, without any endorsement of the contents. There may be other legal reasons for deciding not to publish a full version (such as respecting duties of confidentiality, or fear of a defamation action, which are discussed below) but, in the absence of these specific considerations, it seems to us possible, as the law stands, for an inquiry report to be published without it amounting to, or containing, admissions of liability or any endorsement of its findings.

Statements to the public

4.31 It is very likely that where there is sufficient public concern for a matter to become the subject of an ad hoc inquiry, a public statement on behalf of the local authority will be appropriate. This could be the case when the inquiry is established and on the occasion of publication of the report.

4.32 The same considerations apply to a public statement as to statements made to an inquiry. Admissions of liability can only properly be made by a person who has the authority to make them, but liability of the authority, both primary and vicarious, can be inferred even from admissions of fact. While a local authority should tell the public what action has been or is being taken in response to public concern, it will want to control the statements made to the public so that no adverse effect on the insurance contract results.

4.33 Conversely, if a councillor makes a public statement without the necessary authority of the council,[22] then any admission he or she makes will not be binding on the council.

Summary

4.34 An informal admission of liability can be relied upon in subsequent proceedings brought against a local authority. It can be implied or express.

4.35 An individual councillor may only make an admission on behalf of the authority if the power to do so has been properly delegated to that councillor.

4.36 While an officer with sufficient seniority may be authorised to admit liability on behalf of an authority, admissions of fact by members, officers and employees may allow liability to be inferred, whether primary or vicarious.

4.37 The risk of making an admission arises not only at the time of publication of the inquiry report, but also when the council is responding to the report, whenever a public statement is made, and during the inquiry itself: evidence given to the inquiry by council members, officers or staff might amount to a relevant admission.

4.38 It is not clear when an admission of fact might count as an admission of liability.

4.39 An authority may simply receive and note an inquiry report. We do not consider that noting a report in itself can constitute an admission of liability.

4.40 We also do not consider that mere publication of a report need constitute an admission of liability, but this may depend on the way in which the matter is handled, including for example, the wording of the resolution approving publication.

4.41 Approval, endorsement or adoption of a report may well constitute acceptance of any findings or conclusions in the report.

Ý
Ü Þ

[1]See para 3.22 above. Even where an authority self-insures, it will wish to guard against admissions of liability being made without proper consideration by members.

[2]See paras 3.6 – 3.16 above for a brief description of these different types of liability.

[3][1970] 1 Lloyd’s Rep 524, 526.

[4]Civil Procedure Rules (CPR) Pt 14, r 1(1), (2).

[5]Ellis v Allen [1914] 1 Ch 904; Ash v Hutchinson and Co (Publishers) Ltd [1936] Ch 489; Technistudy v Kelland [1976] 1 WLR 1042; Murphy v Culhane [1977] QB 94.

[6]CPR Pt 24 provides for a fast track mechanism for the summary disposal of cases where there is no real prospect of the claim either being defended or made out, and there is no other compelling reason why the case or issue should be disposed of at a trial.

[7]See Tustin v W Arnold and Sons (British Dominions General Ins Co Ltd, third party) (1915) 31 TLR 368 and Burr v Ware RDC [1939] 2 All ER 688.

[8]P Murphy, Murphy on Evidence (7th ed 2000) p 244.

[9]A list of non-exhaustive factors to be taken into account is given in Civil Evidence Act 1995, s 4(2).

[10]Phipson on Evidence (15th ed 2000) para 28–09.

[11]Civil Evidence Act 1995, s 6.

[12]See paras 2.27 – 2.32 above for the typology we are using.

[13]See paras B.13 – B.19 and B.26 – B.29 below.

[14]Burr v Ware RDC [1939] 2 All ER 688.

[15]M Keane, The Modern Law of Evidence (5th ed 2000) p 314, commenting on Civil Evidence Act 1995, s 4.

[16]The risk of admitting liability in the Clwyd case affected what action was open to the council to take, formally, in relation to the Jillings report. The original plan (as related in counsel’s opinion) was to consider the report at a special meeting of a council committee, to be held a little over a week before the council ceased to exist. Counsel’s advice was sought on, amongst other things, how the council should handle the report at that meeting: the Waterhouse Report, paras 32.35 – 32.49.

[17]The leader of the council can call an extraordinary meeting of the full council at any time: Local Government Act 1972, Sched 12, para 3(1). If five members of the council call for a full meeting and the leader refuses, the meeting can nonetheless be called: Local Government Act 1972, Sched 12, para 3(2).

[18]See paras B.19 – B.25 below.

[19]Local Government (Miscellaneous Provisions) Act 1976, s 41(1), (2A).

[20]In the case of the Jillings report, counsel accepted the insurer’s contention that there was a “considerable risk” that “any formal adoption or approval” of the report by the council would amount to an admission of liability in respect of any individual cases of abuse considered in the report, should such cases result in legal action being taken against the council: the Waterhouse Report, para 32.45.

[21]Although the insurer may not withhold consent arbitrarily: see para 3.24 above.

[22]The members of the council are distinct in law from the council: A Arden, Local Government Constitutional and Administrative Law (1999) para 8.3.2.

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You are here: BAILII >> Databases >> The Law Commission >> PUBLICATION OF LOCAL AUTHORITY REPORTS (A Consultation Paper) [2002] EWLC 163(4) (20 March 2002) URL: http://www.bailii.org/ew/other/EWLC/2002/163(4).html Cite as: [2002] EWLC 163(4)

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