What is a default judgment in a clinical negligence case?

Posted by Malcolm Johnson on

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The claimant in a clinical negligence case sends out a Letter of Claim. The defendant admits breach of duty and some damage, but disputes causation of the damage alleged by the claimant. Proceedings are issued, the defendant does not file a defence, and default judgment is entered by the court.

What happens next?

The answer is provided by the case of Symes v St George’s Healthcare NHS Trust [2014] EWHC 2505 (QB).

The claimant alleged negligence against the Defendant. On the 29th January 2009, he was seen by an ENT consultant working for the defendant, having originally, in October 2008, been the subject of a referral by his GP because of a lump on his face. That lump had turned out to be a malignant tumour, and the claimant complained of two things: first, a failure to advise him that his lump was "suspicious of malignancy"; and secondly, a failure to arrange for an urgent superficial parotidectomy to be carried out within two weeks.

However the claimant was put to strict proof on the nature and extent of damage, injury and loss said to arise from the admitted negligence. The claimant said that these failures resulted in metastasis of the tumour to the lungs and invasion of the facial nerve, as diagnosed in May 2009. The claimant had developed inoperable lung cancer, and had only a short time to live.

The defendant’s solicitors made a limited admission by telephone and in open correspondence. They said that the original biopsy report was incorrect and that there was a delay in performing surgery to removal the tumour. They did not admit that they were responsible for the inoperable lung cancer and the fatal consequences for the claimant.
Proceedings were issued and no defence was entered. Default judgment was entered.

Directions were then given and the claimant requested an interim payment, which was refused. The parties then served expert evidence and Schedules of Loss, at which point it became clear that the causation of the negligence was very much in dispute.The Defendant’s position was that the claimant would have had to undergo the same operation to remove the tumour and that he would not have avoided the metastatic spread of the cancer to his lungs. The claimant issued an application to strike out those parts of the Defendant’s Counter Schedule that sought to contest causation. This was granted by Master Roberts.

The Defendant appealed.

Mr Simon Picken QC outlined the parties’ respective positions and the law on the effect of default judgments. He referred to a number of cases, one of which was Lunnun v Singh [1999] CPLR 587. According to the caselaw, the starting point was to look at the Particulars of Claim, which were to be regarded as "a proxy" for the default judgment, in order to work out what the default judgment was to be taken as having decided, and whether, therefore, the Defendant was trying to go behind the issues which that default judgment was to be taken as having determined.

The relevant paragraphs of the Particulars of Claim in this case were specific as to what the Defendant had done wrong, and the consequences of those acts and omissions. This was not, therefore, a case in which the claimant could be taken as having alleged in the Particulars of Claim that he had suffered merely 'some damage'.
The problem for the claimant was the caselaw above.In the case of Lunnun, the court said that the defendant might still argue that its acts or omissions were not causative of any particular items of alleged loss even if the Particulars of Claim alleged a particular item was caused by the tort.

It could not be said that the default judgment represented a decision that all of the damage alleged by the claimant was suffered by him as a result of the defendant's negligence. The defendant’s counsel had submitted that, if it was the case that the default judgment was binding on the defendant in relation to the allegations of causation set out in the relevant paragraphs of the Particulars of Claim, then there would be no good reason why the defendant was not equally bound by the allegations as to the pain, suffering and financial losses sustained by the claimant as alleged in the same Particulars of Claim, yet that was not what the claimant contended was the position.

Simon Picken QC did not see any justification for a conclusion that the default judgment covered all the damage alleged in the Particulars of Claim. Consequently Master Roberts was wrong to have reached the conclusion which he did.

However, this did not dispose of the appeal because it was apparent from his judgment that Master Roberts based his ultimate conclusion not only on the effect of the default judgment but also on his view that the defendant had acted in breach of the Civil Procedure Rules and contrary to the Overriding Objective. Master Roberts said that the practice in clinical negligence cases, having regard to CPR 16.5 and 16PD12.1, was that the defendant was obliged to address all allegations in the defence. Failure to address an allegation of causation would constitute an admission unless the defence set out the nature of the defendant's case in relation to the issue to which that allegation was relevant.

Simon Picken QC said that although he was clear that the situation which had arisen in the present case was very much to be regretted, and should be avoided in the future, nevertheless he did not consider that this was a case in which it was right to characterise the defendant as having acted in breach of the CPR or contrary to the Overriding Objective.

As to the CPR, in view of the conclusion which he had reached in relation to the effect of the default judgment, it followed that, unless there was anything in the CPR which precluded the defendant from contesting issues of causation in the context of an assessment of damages hearing after a default judgment on liability had been obtained, there could be no non-compliance with the CPR in the defendant doing what it had done in the present case.

There was no obligation on the part of the defendant to serve a Defence setting out its case on causation because the defendant was entitled to advance that case, without having previously pleaded causation in a Defence, in the context of the assessment of damages process which Master Roberts directed should follow entry of the default judgment. In such circumstances, there being no obligation to serve a Defence, any reliance on CPR 16.5 and 16PD12.1 was misplaced.

The claimant’s counsel had said that it was standard clinical negligence practice to enter a Defence denying causation in these circumstances. Simon Picken QC said that unless and until revisions were made to the CPR in order to reflect clinical negligence practice, it would be wrong to look elsewhere for assistance on the current issue. It would have been more sensible in this case if the defendant had served a Defence. Had this been done, despite the fact that it was not necessary for it to have been done, then the difficulties which have arisen would have been avoided.

The position might be different if this had been a case in which the defendant had done nothing at all and had, instead, simply allowed the default judgment to be entered without engaging with the claimant, whether before or after commencement of proceedings. In the present case, however, there had been a letter putting forward a limited admission and a clear telephone conversation. The claimant's solicitors knew all along that the defendant intended running a causation case like that set out in the Counter-Schedule and that the defendant was under the impression throughout that that causation case was open to it.

This undermined the point that the Defendant was to be criticised for not helping the Court further the Overriding Objective (CPR 1.3) and not assisting in the identification of the issues in dispute in the context of active case management (CPR 1.4(1) and CPR 1.4(2)).

Effective case management in this case could, and would, in the circumstances, have been achieved had both parties identified for Master Roberts's benefit what, specifically, were the issues in dispute.
The appeal would be allowed. The defendant was not precluded from advancing the causation arguments set out in its Counter-Schedule.

This was a decision based on case law, but one can see the claimant’s point. They had served detailed Particulars of Claim, setting out their precise case on breach and causation, and answer came there none. Whilst it was clear to everyone what the defendant’s position was prior to the issue of proceedings, it was not clear following their decision not to file a Defence. There would be little point in pleadings if they did not identify the issues for the court to decide.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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