Symes v St. George’s Healthcare NHS Trust [2014] EWHC 2505 QB

The Claimant was referred to hospital in 2008 by his GP with a lump on his face which was subsequently diagnosed as a malignant tumour.  In 2011 the Trust made an open admission in respect of the alleged breaches of duty in the failure to diagnose a malignant tumour and in the delay in surgery,  but made it clear that the spread of the tumour was not attributable to the breaches of duty.

In response to the proceedings the Trust did not file an Acknowledgement of Service or a Defence. The Claimant entered judgment in default of the Acknowledgement of Service.  At a directions hearing the court afforded permission for the parties to rely on expert evidence on “quantum, condition and prognosis". The solicitors acting for the Trust informed the Claimant’s solicitors that quantum was in dispute, although liability to pay general damages for the pain and suffering caused as a consequence of the delay in surgery had been conceded.

At the hearing of an application for an interim payment the Claimant’s solicitors for the first time asserted that the default judgment precluded the Trust from contesting causation. 

In the first instance the court upheld the Claimant's contention and the Trust was criticised for failing to comply with the overriding objective and having failed to comply with CPR 16.5 requiring them to respond properly to the Particulars of Claim by serving a Defence.

On appeal the court considered it was bound by Lunnun – v – Singh [1999] CPLR587in which it was held that the default judgment established only that the Defendant was in breach of duty and that the breach had caused some damage.  It was held that since the Trust had admitted part of the Claimant's pleaded case on causation (the pain and suffering caused by the delay in surgery) there was no basis on which to extend the interpretation of the default judgment to other consequences alleged to have flowed from the breaches of duty.

Further, it was held that while the Trust might have been better advised to serve a Defence, their failure to do so was neither a breach of CPR 16.5 nor contrary to the overriding objective, since the solicitors for the Trust had stated their position in correspondence.

The decision in Symes provides some comfort for Defendants. However, that case may be the subject to a further appeal to the Court of Appeal.