The effect of a default judgment in a negligence case/whether causation can be contested
The claimant obtained default judgment against the defendant in a clinical negligence case. The order provided that “No acknowledgment of service having been filed, it is ordered that the defendant must pay the claimant an amount which the court will decide, and costs”. The master subsequently held that the matters pleaded in the particulars of claim should stand as conclusive on the issue of causation of the losses claimed and the defendant appealed against that decision.
The judge reviewed the relevant caselaw and concluded that there is no bar to a defendant challenging causation in the face of a judgment in default where damages have been ordered to be assessed. It does not matter that the claimant’s statement of case alleges that particular losses were caused – the defendant can argue that, whilst “some damage” was caused, it was not the damage alleged by the claimant in his statement of case.
Here, the defendant had not just accepted that “some damage” had been caused by its negligence, but also that it had caused some of the actual damage which the claimant had alleged in the particulars of claim. Accordingly, unless it can be said that the default judgment represents a decision that all of the damage alleged by the claimant was suffered by him as a result of the defendant’s negligence, then it must be open for the defendant to advance its causation objections to the other aspects of damage alleged by the claimant. The judge confirmed that here the default judgment did not cover all the damage alleged in the particulars of claim.
Nor had the defendant acted in breach of the CPR by not serving a defence setting out its case on causation. A defendant is not required to set out its case on causation in the defence because it can advance that case in the context of the assessment of damages process. However, the judge did note that it “would have been more sensible” here to have served a defence.