An important judgment of the High Court today clarifies the effect of entry of a judgment in default of Acknowledgment of Service or Defence with damages to be assessed. The issue arose in a clinical negligence case in which the claimant’s case is that a misdiagnosis of a lump in his face and a delay in carrying out a superficial parotidectomy caused him to require a total parotidectomy involving loss of the facial nerve and consequent disfigurement, and metastasis of the tumour to the lung, causing inoperable lung cancer. Pre-action, the defendant admitted breach of duty, and later confirmed that it accepted liability for pain and suffering caused by the delay to treatment.
No Acknowledgment of Service or Defence was entered and default judgment was entered. At a directions hearing, expert evidence on the issues of “quantum, condition and prognosis” was directed. The defendant continued to reiterate in discussions between the parties that it was disputing causation. The claimant’s advisers, however, took the view that the effect of the judgment was that the defendant was bound by the assertions of causation in the Particulars of Claim. At first instance, Master Roberts agreed with their view and struck out parts of the Defendant’s Counter-Schedule which denied causation. On appeal, however, Simon Picken QC, sitting as a Deputy High Court Judge, allowed the appeal. He concluded that on authority (following mainly the pre-CPR case of Lunnun v Singh CPLR 597 which was held to be good law post-CPR) and on principle, the claimant’s argument was incorrect. A default judgment fell to be construed narrowly, and the default judgment in this case should be understood as establishing no more than that the defendant was in breach of duty as alleged and that the claimant had suffered some damage (namely, pain caused by the delay in treatment). Moreover, the defendant was not in breach of the CPR so as to justify striking out. There was no obligation to serve a Defence, so there was no breach of CPR 16.5 by not responding in detail to the claimant’s causation case. Nor was the defendant in breach of the overriding objective; while it would have been better had a Defence been served, both parties were at fault in not bringing the misunderstanding between them to the attention of the court at an earlier stage. The judge stated that it might have been otherwise if the defendant had ambushed the claimant with its case at a late stage.
The judgment restores the position to what most practitioners appear to have thought it had always been. However, the potential for uncertainty if the defendant avoids filing a Defence will mean that will usually be the preferable course of action, so there can be no complaint later by claimant’s advisers about ambush.