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A judgment that had been entered in favour of a party was set aside where that party had been approbating on a settlement in respect of liability and reprobating on a fully contested trial and where the three elements of equitable forbearance had been met.
The applicant local authority applied for an order to set aside a judgment that had been given in favour of the respondent (T) in respect of a personal injury claim. The local authority had admitted primary liability and had offered to settle on a 90:10 basis, which T had accepted. However, the local authority had later sought in its defence to resile from the admission of primary liability. T's allocation questionnaire indicated that the whole of the claim was in dispute and that she intended to call witnesses to deal with liability. The statement of issues in the case summary included the issue of whether the local authority had been negligent. Disclosure included documents relating to both liability and quantum, and witness statements served by T dealt with circumstances of the accident in which T had been injured, and T's own statement included an allegation of negligence against the local authority. T successfully applied for an order that judgment be entered in her favour for an amount to be decided by the court with liability being apportioned on a 90:10 basis. The local authority submitted that it would not be right to allow T, having had the benefit of sight of all evidence on liability and it having incurred the costs of preparing for trial, to be allowed to "blow hot" on a settlement and "blow cold" on a fully contested trial. In the alternative, the local authority argued that in consequence of the clear indications in T's allocation questionnaire and case summary that T was expecting a trial on liability and of the fact that it continued preparation for a trial on both liability and quantum and incurred costs in doing so, the three requirements for equitable forbearance were met.
HELD: The statements in the allocation questionnaire and case summary and the actions in preparing and serving witness statements dealing with liability without attaching any qualification or reservation that those statements were being made and that those steps were being taken without prejudice to T's right to rely on the agreement in respect of liability had amounted to approbation and reprobation, Express Newspapers Plc v News (UK) Ltd (1990) 1 WLR 1320 applied. In the alternative, the three elements of equitable forbearance had been established on the facts, Sea Calm Shipping Co SA v Chantiers Navals de l'Esterel SA sub nom The Uhenbels (1986) 2 Lloyd's Rep 294 applied. The statements in the allocation questionnaire and the case summary and the action taken in relation to disclosure and witness statements amounted to a sufficiently unequivocal representation, the local authority had relied on the representation and had acted to its detriment by undertaking work relating to liability and incurring costs in relation to such work.