MR SIMON PICKEN QC:
- These are clinical negligence proceedings in which the Claimant, Timothy Symes, alleges negligence on the part of the Defendant, St George's Healthcare NHS Trust, arising out of his treatment by the Defendant. Specifically, on 29 January 2009, the Claimant was seen by an ENT consultant working for the Defendant, a Mr Williamson, having originally, in October 2008, been the subject of a referral by his GP because of a lump on his face. That lump has, most sadly, turned out to be a malignant tumour, and the Claimant complains 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. The Claimant says that these failures have resulted in metastasis of the tumour to the lungs and invasion of the facial nerve, as diagnosed in May 2009. The Claimant has developed inoperable lung cancer, and has only a short time to live.
- The hearing before me was the Defendant's appeal against the decision of Master Roberts, on 21 March 2014, ordering that:
1. Judgment having been entered in default against the Defendant on 2nd July 2013, the matters pleaded in §22-§26 of the Particulars of Claim served on 10th May 2013 shall stand as conclusive on the issues of breach of duty and causation there pleaded.
2. Those paragraphs of the Defendant's Counter-Schedule that are inconsistent with §§24-26 of the Particulars of Claim shall be struck out in accordance with the Draft annexed to this order.
3. The Defendant have leave to serve an Amended Counter-Schedule that is consistent with §§24-26 of the Particulars of Claim by 4pm on 21st April 2014.
- Permission to appeal was initially refused on paper by Swift J. However, permission was subsequently granted by Lewis J after an oral hearing on 19 June 2014.
- I need to set out the background to the making of Master Roberts's order before I come on to address the parties' submissions.
- On 10 October 2011, before proceedings were issued, Bevan Brittan LLP ('Bevan Brittan'), the Defendant's solicitors, wrote a letter to the Claimant's solicitors, Cogent Law ('Cogent'). That letter, which plainly followed previous correspondence, was headed "LIMITED ADMISSION" and stated, inter alia, as follows:
We appreciate that your own investigations are still in their early stages but we have conducted our own investigations and obtained expert evidence and are now in a position to make the following limited admission. We do so out of a desire to resolve this case fairly and promptly for your client and to minimise costs to the NHS.
We are now in a position to admit that the report of the FNA sample dated 19 January 2009 was incorrect in reporting a pleomorphic adenoma. This sample indicated an adenoid cystic carcinoma and ought to have been reported as such.
Further, it is admitted that there was a delay in an urgent superficial parotidectomy which was recommended on 29 January 2009. It was recommended that this operation should have been carried out within two weeks. In fact, Mr Symes had his parotidectomy on 19 May 2009.
No further admissions are made at this stage and, in particular, it is denied that the delay in treatment of approximately 90 days has had any impact on:
1. The nature or extent of the surgery which Mr Symes underwent. Even if the diagnosis had been timeously made and surgery carried out sooner, Mr Symes would always have had to undergo a total parotidectomy, sacrifice of the upper branch of the facial nerve and resection of skin.
2. The postoperative treatment that he underwent. Post-operative radiotherapy could not have been avoided.
3. The subsequent development of pulmonary metastasis.
4. Mr Symes' life expectancy.
The above position is supported by independent expert evidence."
As to that last reference, it is the evidence of Daniel Morris, an associate solicitor at Bevan Brittan with conduct of the case on the Defendant's behalf, that the same day he sent Cogent, as I understand it on a without prejudice basis, a preliminary report from Professor Symonds, who is Professor of Clinical Oncology at the University of Leicester.
- Proceedings were subsequently, on 14 January 2013, issued by the Claimant, only for the Claim Form then to be struck out because of a failure to serve it. Proceedings were then apparently re-issued, with service of the Claim Form and the Particulars of Claim taking place on 10 May 2013.
- The Particulars of Claim set out the background to the claim in considerable detail, and at paragraph 23 (after a section dealing with "Breach of duty") the Claimant made it clear (in a section headed "The Defendant's admissions") that he relied on the two admissions contained in Bevan Brittan's 10 October 2011 letter.
- The Particulars of Claim then went on to deal with what was described as "Causation" as follows:
"24. If the Claimant had been told on 29th January 2009, that the lump on his neck appeared to be malignant, then he would have wanted to ensure that it was removed urgently and would have made contact with the Hospital in the event that his surgery was delayed.
25. It is the Claimant's case that, on the balance of probabilities, in January/February 2009, the Claimant's tumour:
a. Had not metastasised to his lungs; and
b. Had not invaded his facial nerve which was found to be normal on 14th January and 8th March 2009.
26. Consequently, if the Claimant had undergone surgery by mid-February 2009, then on the balance of probabilities:
a. He would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19th May 2009;
b. He would only have required a superficial parotidectomy, without sacrifice of the left facial nerve; and
c. He would not have developed metastatic cancer."
- This was followed by a section headed "Loss and damage", as follows:
"27. As a result of the Defendant's negligence, the Claimant has suffered personal injury, loss and damage.
PARTICULARS OF PERSONAL INJURY
The Claimant was born on 25th December 1967. He was aged 41 at the time of the Defendant's negligence and is now aged 44.
The Claimant continues to suffer from paralysis of the left part of his face. This results in a conspicuous cosmetic disfigurement, about which the Claimant is uncomfortable, self-conscious and distressed.
At the present time, the Claimant's pulmonary metastasis is asymptomatic and he remains generally well. However, the Claimant continues to be angry and upset about the delay in his diagnosis and its effect on his life expectancy and his ability to live a normal life with his partner, including having children whom he could see grow up.
Further particulars of the Claimant's injuries, his condition and prognosis are set out in the report of Mr Stuart Quine, Consultant ENT and Head and Neck Surgeon, dated 3.10.2012.
PARTICULARS OF SPECIAL DAMAGE
Please see the attached Schedule."
The "attached Schedule" set out some modest "Past Losses" (totalling under £9,000), whilst stating "to be assessed" next to "General Damages" and "tbc" next to all references to "Future Losses", including as regards "Care and assistance" and "Lost Years". I understand that this reflects the usual approach to such schedules.
- The Claim Form and Particulars of Claim having been served on the Defendant (strictly speaking, Bevan Brittan on behalf of the Defendant), there was then a conversation between Mr Morris and the Claimant's solicitor, Michelle Rabone at Cogent. This took place on 5 June 2013 and is recorded in an attendance note which Mr Morris prepared. That attendance note, omitting parts apparently relating to without prejudice discussions, refers to two telephone conversations: the first when Mrs Rabone called Mr Morris to ask "what the position was with regard to the freshly served particulars of claim and claim form", and the second when Mr Morris called Mrs Rabone. As to the latter, the attendance notes states (the emphasis is in the original):
DXM [Mr Morris] said on checking the file he did now in fact have the necessary authority and she would shortly be receiving a letter admitting liability. DXM said he wanted to make clear and he hoped this would be clear from the letter but for the avoidance of any doubt, we were going to repeat the admission that had previously been made and which was recited in the particulars of claim. We would admit that the admitted breach of duty had caused some damage and on that basis we would admit liability and consent to judgment for the Claimant with damages to be assessed. However, DXM said that whilst liability was admitted we were putting the Claimant to strict proof on nature and extent of damage and we did not accept that he would have avoided the development of he metastatic lung disease and we also did not accept that he would have avoided the degree of facial nerve injury which he suffered.
- The same day, 5 June 2013, Mr Morris says that he sent Cogent a letter in similar terms. The letter was headed "ADMISSION" and was in the following terms:
"We are now in a position to respond to the Particulars of Claim dated 25 April 2013. We repeat the admission which was made in our letter of 10 October 2011 and which is recited at paragraph 23 of the Particulars of Claim, namely:
'We are now in a position to admit that the report of the FNA sample dated 19 January 2009 was incorrect in reporting a pleomorphic adenoma. This sample indicated an adenoid cystic carcinoma and ought to have been reported as such.
Further, it is admitted that there was a delay in an urgent superficial parotidectomy which was recommended on 29 January 2009. It was recommended that this operation should have been carried out within two weeks. In fact, Mr Symes had his parotidectomy on 19 May 2009.'
It is admitted that the delay in performing the superficial parotidectomy caused some damage. For the avoidance of doubt, whilst liability is admitted and the Defendant will consent to Judgment with damages to be assessed, the Claimant is put to strict proof on the nature and extent of damage, injury and loss said to arise from the admitted negligence. Paragraphs 25, 26(b) and (c) of the Particulars of Claim are not admitted and nor are the Particulars of Injury, the content of Mr Quine's report nor the contents of the Schedule of Loss. The Claimant will be required to prove the same and the Defendant expects this to be dealt with under an appropriate quantum directions timetable."
- Mrs Rabone and Cogent deny ever receiving this letter, and Mr Stagg, on behalf of the Defendant, acknowledged before me that he was not in a position to gainsay this. Mr Stagg makes the point, nevertheless, that the letter merely reiterates what Mrs Rabone does not dispute she was told by Mr Morris during their telephone conversation on 5 June 2013. Accordingly, nothing turns on whether the letter was received or not, and I say no more about it.
- The next thing which happened is that, the Defendant having served no Defence nor, indeed, acknowledged service, on 2 July 2013, Master Roberts made an order on the
"Judgment for Claimant (amount to be decided by the court)" standard form of order in the following terms:
"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".
Master Roberts's order then went on to make directions, including as follows:
2. There be standard disclosure by list limited to Quantum by 30th September 2013
3. There be a Case Management Hearing on 18th October 2013
As I understand it, this order was made by Master Roberts of his own motion and without the Claimant himself having made an application for default judgment.
- Shortly before the CMC scheduled for 18 October 2013, there was an exchange of emails between Mrs Rabone and Mr Morris on the topic of appropriate directions to be given at the CMC. Specifically, on 14 October 2013, Mr Morris referred to certain draft directions which Mrs Rabone had sent him and said this:
"I cannot agree to the requested interim damages payment. There is clearly a very big difference between the parties on quantum in this case and you will know the reasons I say that."
Mr Stagg submits that this was clearly a reference to the Defendant having made its position clear in relation to causation.
- In the event, directions were apparently agreed between the parties. As a result, there was no attendance before Master Roberts on 18 October 2013. Nor was there, in such circumstances, any list of issues or case memorandum prepared. Accordingly, there was no definition of the issues which were in dispute, and Master Roberts's directions were made, so it would seem, with one party (the Defendant) under the impression that all aspects of causation were still in issue, and the other (the Claimant) thinking that only a very limited aspect of causation remained to be resolved, even though, based on what Mr Skelton very frankly acknowledged before me, the Claimant understood that the Defendant thought that all aspects of causation were still in issue and believed that the Defendant had made an error in not serving a Defence and allowing a default judgment to be obtained.
- The directions included the following:
3) Factual Evidence
Evidence of fact will be dealt with as follows:
a) By 4pm on 17 January 2014 both parties must serve on each other copies of the signed statements of all witnesses on whom they intend to rely in respect of quantum, condition and prognosis
4) Expert Evidence
In respect of quantum, condition and prognosis the parties each have permission to rely on the evidence of experts in the fields of:
Permission being given to call the said experts on matters remaining in issue. The reports of the said experts are to be served by:
Claimant: 17 January 2014
Defendant: 14 March 2014
7) Schedules of Loss
Schedules of Loss must be served as follows:
a) By 4pm on 17 January 2014 the Claimant must serve an up to date schedule of loss costed to the date of trial
b) By 4pm on 14 March 2014 the Defendant must serve a counter-schedule of loss.
Pursuant to this order, a trial was subsequently listed to take place in July 2014, specifically for 3 days commencing on 14 July 2014.
- Thereafter, on 5 December 2013, Mrs Rabone and Mr Morris spoke again by telephone. The attendance note prepared by Mrs Rabone refers to her telling Mr Morris that she wanted "an interim payment of £50k" and to Mr Morris asking her why she thought that the Claimant was entitled to such a payment. Her answer, apparently, was that it was because "we had judgement in default", to which Mr Morris responded "that we are miles apart". Again, Mr Stagg suggests that this is consistent with the Claimant (and Mrs Rabone) appreciating that the Defendant was taking the position that all aspects of causation were still at large.
- The Claimant then, in accordance with Master Roberts's directions, served an Updated Schedule of Losses on 14 January 2014 (although it is actually dated 13 November 2013), together with factual witness statements and experts' reports from Professor Karol Sikora, Professor of Cancer Medicine, and Ms Jane Pateman, a care expert. Under "GENERAL DAMAGES", the schedule stated as follows:
The Claimant claims damages for
First, the Claimant suffered over three months of pain, discomfort and anxiety, as the malignant lesion on his face advanced and grew in size.
Secondly, he lost all function in his left facial nerve following the operation to remove the cancer on 19th May 2009. This has led to a marked and distressing cosmetic deformity; and to the need for a regime of medication to preserve function in his left eye.
Thirdly, the Claimant has developed incurable metastatic cancer in his lungs. At present, his condition is stable, albeit that he suffers from significantly reduced energy, requires a nebulizer to assist his breathing, and needs to sleep in an upright position. In the longer term, it is probable that the cancer will become active again and that the Claimant will die within three to five years. For obvious, reasons this is extremely upsetting for the Claimant who is acutely aware that he and his wife have lost the opportunity to lead a normal life and to have a family."
The schedule then sets out details of both past and future losses, including 'lost years' losses.
- The interim payment issue was the subject of a further subsequent telephone conversation between Mrs Rabone and Mr Morris on 24 January 2014. The attendance note prepared by Mrs Rabone states, where relevant, as follows:
"I pointed out that we have judgement in default our assessment is much higher, he [Mr Morris] said that they have made an offer of £10k and that is there [sic] position, we are very far apart on this and they do not agree with our valuation. They compensated [the Claimant] for the pain and suffering for the delay but do not believe the other symptoms are related."
- This was followed, on 14 March 2014, by another telephone conversation between Mrs Rabone and Mr Morris. Again the topic was the level of an appropriate interim payment. Mrs Rabone's attendance note records the following:
"I told him [Mr Morris] that we have judgement in default and my understanding is that we do not have to prove causation he agrees but it does not mean we do not have to prove the nature and extent of damage. It does not mean that we have a blank cheque. The whole point of the hearing is to consider damages."
- The same day, the Defendant served its Counter-Schedule as well as a report from Professor Symonds. The Counter-Schedule admits causation in respect of what is pleaded in paragraph 26(a) of the Particulars of Claim, but denies causation in respect of paragraphs 26(b) and (c): in other words, the Defendant accepted that the delay in the operation until May 2009 caused the Claimant to suffer pain and discomfort associated with his developing a tumour in the period of delay, but did not accept that, without the delay, the Claimant would only have required a superficial parotidectomy, without sacrifice of the left facial nerve and would not have developed metastatic cancer.
- Specifically, the Counter-Schedule states as follows in the Introduction section at paragraph (6):
"In support of this Counter-Schedule the Defendant relies on the report of Professor Symonds, Professor of Clinical Oncology, dated 5 February 2014. The Defendant's case is that save for any additional pain and suffering which the Claimant experienced during the period of 90 days that the surgery was delayed (and for which no analgesia was prescribed by the Claimant's GP), no other loss or damage arises in consequence of the admitted delay. In particular it is the Defendant's case that if the surgery had been performed in about mid February 2009:
a. The same operation would have been carried out as that which was performed on 19 May 2009, namely total parotidectomy, sacrifice of the facial nerve and resection of skin.
b. The Claimant would not have avoided metastatic spread of the cancer to his lungs. The Defendant's case is that the pulmonary metastases that have been clinically apparent since 2010 were probably present in microscopic form in the lungs prior to 2008.
c. The Claimant's treatment for the metastatic disease would have been the same as he has received.
d. The Claimant's ultimate prognosis and life expectancy would have been the same."
The schedule then repeats in several places, in relation to specific heads of loss claimed, that the particular head of loss was "unaffected by the delay of 90 days in carrying out the surgery".
- At a CMC which took place very shortly afterwards, on 18 March 2014, Master Roberts adjourned matters to 21 March 2014 to enable the Claimant to issue an application to strike out the Counter-Schedule. This, the Claimant did the next day, the Defendant also applying that day (19 March 2014) to set aside the default judgment.
- These applications were heard by Master Roberts on 21 March 2014. He made the order to which I have previously referred. In reaching his decision, Master Roberts dismissed the three arguments which the Defendant (through Mr Stagg) advanced: first, the argument that the Defendant is not precluded by the default judgment from contesting causation; secondly, the argument that the Claimant is estopped from asserting that the Defendant was so precluded; and thirdly, the argument that default judgment should be set aside.
The parties' respective positions in outline
- On the appeal before me, the Defendant has only pursued the first of the arguments which were made to Master Roberts. There is, in particular, no longer any application to set aside the default judgment. The Defendant's only case before me, therefore, is that, in a case such as the present (a negligence case in which there has to be damage in order for there to be a cause of action at all), a default judgment which provides that damages are to be assessed precludes a defendant from contesting the allegations of breach of duty contained in the Particulars of Claim and also from arguing that the claimant has suffered no damage, but does not prevent the defendant from contesting the extent to which the claimant's injuries were caused by the breaches of duty which have been admitted. Mr Stagg also submits that, to the extent that Master Roberts based his decision on any failure by the Defendant to comply with the CPR, this was wrong for the simple reason that, Mr Stagg submits, the Defendant has committed no such breach in this case.
- The Claimant's position, on the other hand, is that Master Roberts was right to decide as he did, specifically that the Defendant having chosen, for whatever reason, not to acknowledge service nor serve a Defence, it is now not open to the Defendant to take issue with causation, or (as Mr Skelton puts it in paragraph 39 of his Skeleton Argument) "causation issues that form part of the liability case" as opposed to "causation issues that form part of the quantum case". Mr Skelton's submission is that the former must be addressed in a Defence, and that it is not appropriate for a defendant to serve no Defence but instead seek to deal with such issues in a Counter-Schedule served after a default judgment has been obtained. Mr Skelton adds that the directions which were made by Master Roberts on 18 October 2013 were made by consent without the Defendant informing the Court, whether before that time or in the context of the agreement of the directions, that the Claimant's causation case (by which Mr Skelton must mean "causation issues that form part of the liability case") was in dispute. So, Mr Skelton submits, the Defendant should not now be permitted to advance the case which it now seeks to put forward. Mr Skelton adds that the Defendant's position is all the worse because it should have been apparent to the Defendant from the fact that Professor Sikora's report served in January 2014, some months before service of the Counter-Schedule, did not address "causation issues that form part of the liability case" (in particular, the causation of the metastatic cancer) that the Claimant was not dealing with such issues in the context of the assessment of damages phase.
- Before coming on to consider the respective submissions, I should mention that the parties agreed, in the lead-up to the appeal hearing, that the assessment of damages hearing which was due to take place the following week should be vacated (something which I ordered), on the basis that, in the event that the appeal is successful, the hearing would need to be re-fixed for a later date (with directions being made for evidence from the Claimant on all causation issues), and, in the event that the appeal fails, the Defendant agreed to pay the Claimant £230,000 in full and final settlement of the Claimant's claims.
The law on the effect of default judgments
- Mr Stagg and Mr Skelton were largely agreed as to what are the relevant authorities, and, indeed, as to the essential principles which are applicable in a case such as the present. The agreement was not, however, complete.
- The starting point is the Privy Council's well-known statement of principle in Kok Hoong v Leong Cheong Kweng Mines Ltd  AC 993. In that case, Viscount Radcliffe framed the relevant question in the following way, at page 1010:
there is no doubt that by the law of England, which is the law applicable for this purpose, a default judgment is capable of giving rise to an estoppel per rem judicatam. The question is not whether there can be such an estoppel, but rather what the judgment prayed in aid should be treated as concluding and for what conclusion it is to stand.
- He went on, on the same page, to refer to the "obvious and, indeed, grave danger in permitting such a judgment to preclude the parties from ever reopening before the court on another occasion, perhaps of very different significance, whatever issues can be discerned as having been involved in the judgment so obtained by default". He then stated this further need for caution, at page 1011:
"Their Lordships are satisfied that, where a judgment by default comes in question, it would be wrong to apply the full rigour of any principle as widely formulated as that of Henderson v. Henderson. It may well be doubted whether the Vice-Chancellor had in mind at all the peculiar circumstances of a default judgment and whether such a judgment would not naturally fall into his reservation of 'special cases'. In any event it is clear from what has been said in other authorities more immediately directed to the point that a much more restricted operation must be given to any estoppel arising from a default judgment."
- Then, at page 1012, referring to the earlier Privy Council case, Hoystead v Commissioner of Taxation  AC 155, Viscount Radcliffe said this:
"There it was spoken of as being essentially the product of the older system of pleading and as involving no derogation from the true general principle that, for the purposes of estoppel, a judgment stands for every point, whether of assumption or admission, which was in substance the ratio of and fundamental to the decision."
He followed this with reference to the House of Lords decision in New Brunswick Railway Co v British & French Trust Corporation Ltd  AC 1, which he described as "containing an authoritative reinterpretation of the principle" which, as he put it:
"amounts to saying that default judgments, though capable of giving rise to estoppels, must always be scrutinised with extreme particularity for the purpose of ascertaining the bare essence of what they must necessarily have decided and, to use the words of Lord Maugham L.C. [in New Brunswick] they can estop only for what must 'necessarily and with complete precision' have been thereby determined."
- In New Brunswick, Lord Maugham LC had put matters as follows at page 21:
"In my view not all estoppels are 'odious'; but the adjective might well be applicable if a defendant, particularly if he is sued for a small sum in a country distant from his own, is held to be estopped not merely in respect of the actual judgment obtained against him, but from defending himself against a claim for a much larger sum on the ground that one of the issues in the first action (issues which he never saw, though they were doubtless filed) had decided as a matter of inference his only defence in the second action. My Lords, I think there is much to be urged in favour of the observation made by Willes J. in the case of Howlett v Tarte, though it may have been a little too widely expressed. He said: 'It is quite right that a defendant should be estopped from setting up in the same action a defence which he might have pleaded but has chosen to let the proper time go by. But nobody ever heard of a defendant being precluded from setting up a defence in a second action because he did not avail himself of the opportunity of setting it up in the first action.' In my opinion we are at least justified in holding that an estoppel based on a default judgment must be very carefully limited. The true principle in such a case would seem to be that the defendant is estopped from setting up in a subsequent action a defence which was necessarily, and with complete precision, decided by the previous judgment; in other words, by the res judicata in the accurate sense."
- The next authority, in chronological terms, is a decision of the Court of Appeal refusing permission to appeal on a renewed oral application for permission. This is John Turner v P.E. Toleman (1999) unrep., 15 January, a case which Mr Skelton submits is not analogous to the present case because it involved a simple claim in which the claimant complained of suffering a frozen shoulder in a road traffic accident. The Particulars of Claim having, as Simon Brown LJ put it, "in the usual way" alleged "negligence, injury by reference to an annexed medical report, and special damage", the defendant admitted (presumably in his Defence) that he was "
liable to compensate the Plaintiff in respect of any injuries, loss and damage sustained as a result of the said collision", going on, however, to deny that the plaintiff had suffered the alleged, or any, injury, loss and damage. The claimant then obtained summary judgment for damages to be assessed, on the basis that the Defendant had no defence to the action, save as to the amount of the damage. Subsequently, schedules and counter-schedules relating to loss and damage having been exchanged, together with medical evidence from both sides, the claimant then took what Simon Brown LJ described as the "startling" position that the summary judgment decision decided once and for all not just liability issues but also causation, including "the attributability of the plaintiff's frozen shoulder to the collision".
- Simon Brown LJ emphatically rejected this, explaining as follows:
"It is, as Mr Holwill's argument points out, trite law to say that to establish a cause of action in negligence, it is essential to prove that the plaintiff suffered some damage. So far so good. It is, however, the critical next step in the argument that seems to me so manifestly impossible. Accordingly, argues Mr Holwill, the liability judgment was, and I quote from his written skeleton which he has adopted in the course of his short oral submissions:
'. . . a ruling that the Plaintiff had suffered the injuries pleaded in consequence of the Defendant's negligence - if there had been any doubt about that point, judgment could not have been awarded'.
I profoundly disagree. As Waller LJ observed, when refusing leave as the single Lord Justice on the documents:
'What loss and damage was caused by this Defendant's negligence must be part of the exercise of assessing damages.'
That in my judgment is plainly correct. It certainly accords with my own experience in these cases over very many years. No doubt defendants must acknowledge some injury to a plaintiff before judgment could properly be entered against them, otherwise the cause of action is not complete. But, of course, here they were. That is a far cry from saying that they are necessarily liable for each and every aspect of loss and injury which the plaintiff in his pleaded claim asserts he suffered. Indeed, their defence expressly denied it. That has everything to do with quantification and nothing to do with basic liability."
- Turner was followed and approved by the Court of Appeal in Lunnun v Singh  CPLR 587, a decision on a full appeal rather than merely a permission to appeal decision. That was a case in which the claimant sought damages in respect of a leakage of water and sewage from the defendant's neighbouring property. The Statement of Claim alleged that there had been a leak and that the claimant's property had been damaged as a consequence. No notice of intention to defend having been given by the defendant, the claimant entered judgment in default with damages to be assessed. This was on 27 June 1991. Remarkably, it was not until just under seven years later, on 10 March 1998, that the claimant then served a Schedule of Damage, a document to which the defendant responded with a Counter-Schedule on 6 November 1998. In that Counter-Schedule the defendant indicated that issue was taken not merely with the quantum of the damage claimed but also with causation, namely the allegation that there was a causal link between the damage and the leak. Specifically, there was an introductory paragraph in the following terms:
"The effect of the default judgment
By reason of the default judgment entered against them it is not open to the defendants to argue that the plaintiff has not suffered damage as a result of water flowing from a cracked sewer. However, the defendants are entitled to:
(1) Dispute that any water flowing from the pipe onto the plaintiff's property was causative of any of the particular heads of damage.
(2) Dispute the plaintiff's case as to quantum."
The Counter-Schedule then went on to state that the claimant "is put to strict proof that any water that came from the pipe in the defendants' premises gave rise to the need for repairs", before advancing a number of arguments directed to causation.
- At the assessment of damages hearing, the claimant made the point that the defendant was not entitled to contest causation in the light of the default judgment which had been obtained. The judge agreed, and the defendant appealed. On appeal, the defendant's position was that, while it was accepted that it could not be suggested that the claimant had suffered no damage at all as a result of the leak, nevertheless the defendant was entitled to question the causation of the losses claimed. Counsel's submission was recorded by Jonathan Parker J as being the following:
"Mr Exall (for the defendants) submits firstly that, notwithstanding the default judgment, the defendants are entitled on the damages hearing to raise the issue whether any particular item of damage claimed was caused by water or sewage flowing from the defendants' sewer. He accepts that the default judgment is conclusive in favour of the claimant on the issue whether some water and sewage was leaking from the sewer on to the plaintiff's premises in the sense that it is no longer open to the defendants to dispute that some damage was thereby caused, since the claimant's cause of action would not otherwise be complete."
This submission was based on Turner, as Jonathan Parker J's judgment goes on to make clear.
- Jonathan Parker J accepted this submission. He explained as follows:
"I turn first to the question whether it is open to the defendants, notwithstanding the default judgment, to raise at the damages hearing the issue whether water damage from another source was responsible for damage to the claimant's basement. In my judgment, the position in this respect is as follows. The default judgment is conclusive on the issue of the liability of the defendants as pleaded in the Statement of Claim. The Statement of Claim pleads that an unspecified quantity of effluent escaped from the defendants' sewer into the basement of the claimant's property. In addition it is, Mr Exall accepts, inherent in the default judgment that the defendants must be liable for some damage, resulting therefrom. But that, in my judgment, is the full extent of the issues which were concluded or settled by the default judgment. It follows, in my judgment, that in the instant case all questions going to quantification, including the question of causation in relation to the particular heads of loss claimed by the claimant, remain open to the defendants at the damages hearing. Direct support for this conclusion is, in my judgment, to be derived from the decision of this court in Turner v Toleman.
In my judgment, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment. In this case the judgment was a default judgment. I accordingly accept Mr Exall's submissions in relation to the first point."
- Clarke LJ (as he then was) agreed, explaining that "On the assessment of the damages the defendant may not take any point which is inconsistent with the liability alleged in the statement of claim", and that such points include contributory negligence, failure to mitigate, causation and quantum. As to causation, Clarke LJ relied on the following passage in the judgment of Sir Richard Scott V-C in another authority relied on by counsel for the defendant, Mr Exall, namely Maes Finance Ltd and another v A Phillips & Co (1997) The Times, 25 March:
"The defendant cannot thereafter contend that his acts or omissions were not causative of any loss to the plaintiff [my emphasis]. But he may still be able to argue, on the assessment, that they were not causative of any particular items of alleged loss."
The emphasis given to the word "any" was emphasis which Clarke LJ gave. Clarke LJ added this:
"Moreover, he may do so even if the statement of the claim alleges a particular item was caused by the tort."
- Clarke LJ then went on to summarise what this meant in the case before him, explaining that it meant that the defendant was unable to challenge the allegation in the Statement of Claim that "water and sewage had escaped into the basement of No 136 and damaged it", but that the defendant was entitled to challenge "how much water and sewage leaked", "how much damage such water or sewage caused", and "what loss the plaintiff suffered as a result". He stated that "None of those questions is addressed in the statement of claim", before then adding this:
"Moreover, insofar as the statement of claim makes any allegations of loss and causation (which it only does to a very limited extent in the particulars at paragraph (6) which have been quoted by Mr Justice Jonathan Parker) it is clear from Turner v Toleman that it is open to the defendants to challenge them on the assessment."
- Peter Gibson LJ agreed with both Jonathan Parker J and Clarke LJ. Referring with approval to Turner, he said this in the last paragraph of his judgment:
"For my part, despite the very different context in which that case was decided, I can see no distinction in principle between a case such as Turner, a personal injury case, and the present case. Just as it was open to the defendant in that case to challenge the particular heads of damage which the plaintiff had pleaded as having been caused by the negligence of the defendant, so it is open in the present case for the Defendants to challenge the particular heads of damage claimed to have been caused by the escape of water and sewage into the basement of the plaintiff's premises from the Defendants' cracked sewer. The fact that in Turner there had been summary judgment after the defendant had put in a defence whereas in the present case there was no defence does not seem to me to make a material difference. In my judgment, the true principle is that on an assessment of damages any point which goes to quantification of the damage can be raised by the defendant, provided that it is not inconsistent with any issue settled by the judgment."
In these circumstances, as far as Peter Gibson LJ was concerned, the default judgment could not preclude the defendant from advancing its causation case. As he put it earlier:
"In the present case all that has been determined by the judgment in default is that the Defendants own a sewer which has cracked, that water and sewage from that cracked sewer has entered into the Claimant's basement, that damage continuing at the date of the statement of claim has thereby been caused to the Claimant's premises and that the Claimant has thereby suffered loss and damage. The judgment does not purport to say how much loss and damage has been caused. That quantification has been left to the assessment."
- As Mr Stagg points out, and Mr Skelton does not dispute, Lunnun is cited in notes to the White Book (2014 Edn.), Vol. 1, at 12.4.4 and 12.7.5 without criticism, and it is also an authority which has been followed by later cases. So, in Pugh v Cantor Fitzgerald International  CP Rep 74, a case after the introduction of the CPR, Ward LJ was clear that Lunnun remained good law: see -. This was an employment dispute in which the defendant had failed to defend the claimant's claim for wrongful dismissal, but then in its Counter-Schedule purported to raise two matters which, although advertised as causation issues, were actually points which would have provided with a defence on liability had they been raised by way of defence on liability, namely a case that the defendant was contractually entitled to terminate the claimant's employment contract or that the claimant was himself in repudiatory breach of that employment contract (see ).
- Likewise, in Enron (Thrace) Exploration and Production BV v Clapp  EWHC 401 (Comm), another case to which the CPR rather than the RSC applied, Aikens J (as he then was) was in no doubt that Lunnun continues to be applicable. He said this at :
"As the Court of Appeal pointed out in Lunnun v Singh, after a default judgment a party can raise an issue (in that case it was both causation and quantum of damages claimed) that might have been raised earlier, just so long as it is consistent with the judgment that has been entered."
The same judge made the same point in Carbopego-Abastecimento de Combustiveis SA v AMCI Export Corporation  EWHC 72 (Comm),  1 Lloyd's Rep 736 at :
where a judgment in default has been granted on the question of liability, that judgment is conclusive on the issue of liability of the Defendant to the Claimant, as pleaded in the Particulars of Claim. Therefore, if a Claimant has alleged that the Defendant was in breach of contract, that cannot be challenged after the default judgment has been entered. Equally, however, a Claimant cannot raise a new claim or a new way of putting the same claim in the proceedings to assess damages. Thirdly, at the trial to assess damages a Defendant is entitled to raise all issues that are not inconsistent with the earlier determination of the issue of liability. Therefore, arguments concerning the causation of the damages alleged and the quantification of the damages alleged can be pursued by a Defendant. These propositions are clear from the Court of Appeal's decision in Lunnin [sic] v Singh. The principles in that case (which was pre CPR) were held to apply in the post CPR world by the Court of Appeal in Pugh v Cantor Fitzgerald International."
- Further, in Strachan v The Gleaner Co Ltd and another  1 WLR 3204  UKPC 33, Lord Millett, delivering the judgment of the Privy Council, had the following to say in relation to judgments in default, at :
"In their Lordships' opinion these questions are easily answered if three points are borne in mind. The first is that, once judgment has been given (whether after a contested hearing or in default) for damages to be assessed, the defendant cannot dispute liability at the assessment hearing: see Pugh v Cantor Fitzgerald International  EWCA Civ 307 citing Lunnon [sic] v Singh (unreported) 1 July 1999, EWCA. If he wishes to do so, he must appeal or apply to set aside the judgment; while it stands the issue of liability is res judicata. The second is that, whether the defendant appears at or plays any part in the hearing to assess damages, the assessment is not made by default; the claimant must prove his loss or damage by evidence. It is because the damages were at large and could not be awarded in default that the court directed that they be assessed at a further hearing at which the plaintiff could prove his loss. The third is that the claimant obtains his right to damages from the judgment on liability; thereafter it is only the amount of such damages which remains to be determined."
- Lastly and most recently, in New Century Media Ltd v Makhlay  EWHC 3556 (QB), Carr J refused to allow a defendant to an employment claim to argue, at an assessment of damages hearing, a judgment in default of acknowledgement of service having been obtained by the clamant, that the claimant was in repudiatory breach or that the defendant was entitled to terminate the contract on notice (see ), since those were issues which went to the question of liability, a question which had been determined by the default judgment (see ). Carr J put the matter in the following terms, at :
"A default judgment on liability under CPR Pt 12 is a final judgment that is conclusive on liability. The Particulars of Claim are, in effect, a proxy for the judgment, setting out the basis of liability. Once judgment is entered, it is not open to a Defendant to go behind it. Damages of course still have to be proved, and a Defendant can raise any issue which is not inconsistent with the judgment see the White Book 2013 notes to CPR 12.4.4."
- As Carr J went on to put it at , having reviewed Lunnun and Pugh:
"Mr Makhlay had a full opportunity to defend the claim on liability. If he disagreed with an aspect of liability that was relevant to quantum, it was for him to challenge the claim at the liability stage. He chose not to do so. He has not sought to set the judgment aside. He cannot now 'roam freely' across issues of liability as he wishes to do."
- Carr J continued at  and :
"40. Mr Makhlay's approach is tantamount to an abuse of process by way of a back-door attempt to challenge the findings in the judgment. It offends not only a natural sense of justice, but also against the general rule that a party should not be allowed to litigate issues which have already been decided by a court of competent jurisdiction.
41. The consequences of Mr Makhlay's position being correct would be startling: a Defendant would benefit from failing to lodge a defence on liability and by simply submitting to a judgment in default, holding his powder dry until the quantum stage. He would then be able to mount, essentially unfettered, all and any arguments on liability at the quantum stage that he wished probably, as has happened here, without any proper pleading or identification of the issues."
The effect of the default judgment in the present case
The Defendant's position
- Mr Stagg submits that, applying Kok Hoong, the default judgment obtained by the Claimant in the present case ought to be narrowly construed. Therefore, he submits, the default judgment should be regarded as having established nothing more than that the Defendant acted negligently and that the Claimant, as a result of that negligence, has suffered 'some' (but not specific) loss and damage. It is trite law, Mr Stagg submits, that in order to have a claim in negligence, a claimant must demonstrate that he has suffered damage of a type recognised by the law as compensable. Mr Stagg observes, however, that provided that damage is more than de minimis, the cause of action is complete once damage is shown and liability in negligence is established. Mr Stagg submits that it is not appropriate, in view of this, to regard it as having already been determined, by dint of the default judgment, that the Defendant is liable to the Claimant for the losses claimed since that presupposes a causation determination which the default judgment should not be viewed as having entailed.
- Mr Stagg goes on to highlight the fact, bearing in mind that this is, of course, an appeal, that, in his judgment at , having reviewed the relevant authorities starting at  and ending at , Master Roberts simply says this:
"I find that the Particulars of Claim set out at paragraphs 24-26
the claimant's case as to causation with precision and clarity. I adopt the language of Carr J in New Century Media Limited v Makhay and find that the Particulars of Claim are in effect a proxy for the judgment, setting out the basis of liability."
Master Roberts's view, on this basis, was that it was not open to the Defendant to take issue with causation since that was a matter which, as far as he was concerned, was no longer in issue after the entering of the default judgment. However, Mr Stagg submits, nowhere is there any analysis on the part of Master Roberts as to why he took the view set out in this paragraph; it was, Mr Stagg suggests, mere assertion on his part.
- Mr Stagg submits that, similarly, in stating at  that the following issues "go to the issue of liability, not the quantification of damages, and should, in compliance with CPR 16.5 and 16PD12.1, have been pleaded in the Defence", Master Roberts was engaging in simple assertion:
"(i) Whether the life expectancy of the claimant would have been the same even if there had not been clinical negligence;
(ii) Whether the claimant would have undergone a parotidectomy and sacrificed the upper branch of the facial nerve and undergone resection of the skin even if there had not been clinical negligence;
(iii) Whether the claimant would not have avoided the metastatic spread of cancer to his lung even if there had not been clinical negligence;
(iv) Whether the claimant would have had to undergo post-operative radiotherapy even if there had not been clinical negligence."
Mr Stagg submits that what Master Roberts has to say in this regard is also, as he puts it, "simply wrong". He makes the point that, it having been admitted that the delay in treatment caused pain and suffering to the Claimant, the Claimant was not required to prove that that was the case, but this does not mean that the Claimant is relieved of the obligation to make good the aspects set out in (i) to (iv) above.
- Mr Stagg further submits that, if it is the case that the default judgment is binding on the Defendant in relation to the allegations of causation set out in paragraphs 24 to 26 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 paragraph 27 of the Particulars of Claim, yet that is not what the Claimant contends is the position.
- All in all, Mr Stagg's position is that Master Roberts's approach is contrary to Lunnun, an authority which was binding on Master Roberts (as, indeed, it is on me), and was not an approach which either Pugh or New Century Media justified since those were very different cases, neither of which was concerned with the question of whether causation can be advanced notwithstanding the existence of a default judgment.
The Claimant's position
- Mr Skelton unsurprisingly takes the opposite position. His case, as I have previously pointed out, is that there is a distinction between "causation issues that form part of the liability case", on the one hand, and "causation issues that form part of the quantum case", on the other. On that basis, Mr Skelton submits, it is open to the Defendant to challenge the quantification of the Claimant's damages, for example the extent of the losses said to be the result of the Claimant's metastatic cancer (including his substantial claims for future loss of earnings and future care), but not other types of causation issues which go to liability rather than quantum.
- Mr Skelton submits, as I understand it, that this is the distinction which Master Roberts must have had in mind when stating the view set out at  of his judgment. Mr Skelton highlights the fact, in this context, that this distinction is recognised by clinical negligence practitioners, and was what Master Roberts, an experienced clinical negligence Master, would himself have had in mind when considering this case. Accordingly, Mr Skelton submits, the position in the clinical negligence context differs from what Simon Brown LJ in Turner considered to be the general position in personal injury cases back in 1999. He submits that, therefore, the Turner approach is no longer applicable in the CPR context and, in particular, in the CPR context in the field of clinical negligence.
- Mr Skelton submits that Mr Stagg's argument that because, Mr Skelton says "as a matter of generality", liability "equals" breach of duty and some causation, it follows that a default judgment on liability can only determine that 'some' causation has been established, "is a manifestly false syllogism" and is contrary to the authorities set out above. Mr Skelton adds that Mr Stagg's approach also ignores what he describes as the importance of statements of case formally defining and circumscribing the specific issues of liability that are in dispute, and the fact that in the present case the Claimant pleaded a specific causation case.
- Mr Skelton submits that it is, as he puts it, "bold" of the Defendant to suggest that only the Defendant, and not the Court nor the Claimant, "has the power to determine the ambit of the default judgment insofar as it determines issues of liability". Mr Skelton suggests that this "offends basic principles of forensic certainty and musters for the Defendant a power over judicial proceedings to which it is not fairly entitled".
Discussion and decision
- In my judgment, Mr Stagg's position is to be preferred to that of Mr Skelton. It seems to me that any other conclusion would, as Mr Stagg submits, be contrary to authority and wrong in principle. I can state my reasons relatively briefly, having set out the relevant case law and the parties' submissions in the detail which I have done.
- As Carr J put it in New Century at , the starting point is to look at the Particulars of Claim, which are to be regarded as "a proxy" for the default judgment obtained on 2 July 2013, in order to work out what the default judgment is to be taken as having decided, and whether, therefore, the Defendant is trying to go behind the issues which that default judgment is to be taken as having determined. This approach is consistent with the need, identified by Viscount Radcliffe in Kok Hoong, to scrutinise a default judgment "with extreme particularity" (or, as Lord Maugham LC put it in New Brunswick, "with complete precision") so as to ascertain "the bare essence of what" it "must necessarily have decided".
- In answering this critical question, it seems to me that I am bound to follow the approach adopted in Turner and Lunnun, an approach which has been followed in various subsequent cases (specifically, Pugh, Enron, Carbopego, Strachan and New Century) and which is consistent also with the view expressed by Sir Richard Scott V-C in Maes Finance. To adopt any different approach is simply not open to me, any more than it was open to Master Roberts. These are all cases in which the same approach has been adopted, albeit with different outcomes. No case was cited to me where a different approach has been applied. Nor, specifically, I am bound to observe, was any case cited to me in which it has been held that a defendant could not challenge causation in the face of a judgment in default where damages have been ordered to be assessed. Turner and Lunnun (and Carbopego, a non-tort case) were, on the contrary, cases in which it was held that causation could be challenged notwithstanding the relevant judgment, whether a summary judgment (as in Turner) or a judgment in default (as in Lunnun and Carbopego). True, in Turner and Lunnun, the two tort cases, the defendants were precluded from being able to argue that no loss at all was sustained, because such an argument would be inconsistent with a judgment on liability in circumstances where, in a tort context, there has to be some damage caused by the tort for the cause of action to be complete. However, beyond this the defendants were permitted to take issue with causation. That was the actual decision in Turner and Lunnun, and it was also what Sir Richard Scott V-C made clear in Maes Finance, albeit when dealing not with causation but with the question of whether contributory negligence could be advanced in the context of an assessment of damages hearing, in the passage cited by Clarke LJ in Lunnun.
- I am clear, as I say, that, in such circumstances, I must apply the approach explained in Turner and Lunnun, both cases in which damage was a necessary ingredient of the claimant's cause of action: in Turner, a claim in the tort of negligence; and in Lunnun, a claim in nuisance. Authorities such as Pugh and New Century, in contrast, were concerned with very different allegations made by the claimants (in each case, the claims were not in tort but for breach of contracts of employment), and the defendants were attempting to advance arguments which went to the question of breach of contract. They were not cases in which the issue was causation, nor were they tort cases where, without damage caused by the relevant breach of duty, there is no cause of action at all. These authorities are, therefore, of only limited assistance in relation to the question which I have to decide.
- As I have pointed out, Mr Skelton himself recognises that, in the context of the assessment of damages phase of the proceedings, it is open to the Defendant to advance arguments that the Claimant ought not to be permitted to recover to the extent of the amounts claimed. His submission is that that type of causation point falls the assessment of damages side of the line, whereas other types of causation issue are part and parcel of liability and, as such, are caught by the default judgment. In advancing this submission, Mr Skelton is acknowledging that not all causation issues have been determined by the default judgment and that, to that extent, Mr Stagg's argument is right. What Mr Skelton submits, however, is that it is not open to Mr Stagg simply to say (in an echo of Mr Exall's successful submission in Lunnun) that the default judgment is to be regarded as merely having determined that the Claimant suffered 'some damage' as a result of the Defendant's negligence because nowhere in the Particulars of Claim in this case does the Claimant allege that he suffered merely 'some damage'; on the contrary, the Particulars of Claim are specific as to the damage which the Claimant alleges that he has suffered. Therefore, Mr Skelton submits, viewing the Particulars of Claim as a proxy for the default judgment, the damage which is necessary in order for there to be a cause of action must be the damage alleged in the Particulars of Claim and not some vague (and, indeed, unpleaded) allegation that the Claimant suffered 'some damage'.
- As a matter of principle, it seems to me that there is something to be said for this last submission. Matters might be different if the Particulars of Claim had not specified the consequences of the breaches of duty alleged by the Claimant. However, paragraphs 24 to 26 of the Particulars of Claim are specific. This is not, therefore, a case in which the Claimant can be taken as having alleged in the Particulars of Claim that he had suffered merely 'some damage'. However, in my judgment, there are two difficulties with the submission which mean that it is not a submission which I can accept: the first a difficulty based on authority; the second a difficulty based on the fact that, in paragraphs 24 to 26 (specifically in paragraph 26 actually), the Claimant has alleged three consequences, the first of which (that the Claimant "would not have suffered the pain and discomfort associated with his developing tumour between then and his eventual operation 19th May 2009": see sub-paragraph (a)) the Defendant accepts was caused by the breaches of duty alleged.
- As to the difficulty presented by authority, it was not stated in Turner by Simon Brown LJ that the "some injury" which a defendant "must acknowledge
to a plaintiff before judgment could properly be entered against" the defendant (Turner being a summary judgment case rather than a default judgment case) had to be the actual injury which the claimant was himself alleging. More significantly, however, given that Turner is only a brief judgment and was only concerned with an application for permission to appeal, in Lunnun Clarke LJ, having cited from Sir Richard Scott V-C's judgment in Maes Finance, went on to say that "Moreover" the defendant may still argue that its acts or omissions were not causative of any particular items of alleged loss "even if the statement of the claim alleges a particular item was caused by the tort". In other words, as I understand it, Clarke LJ was making the point that 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.
- It is notable, in this context, that Clarke LJ went on to explain how, on the facts of the nuisance case which he was considering, the defendant could not challenge that water and sewage had escaped into the claimant's property and that damage had thereby been caused, but that the defendant could dispute how much leakage there had been, how much damage that leakage had caused, and what loss the claimant had suffered as a result. This is consistent, as I see it, with Clarke LJ adopting an approach which requires simply that the defendant recognises that 'some damage' has been caused, and not that the defendant should be taken as having accepted that the actual damage alleged by the claimant in his statement of case has been caused by the breach of duty alleged. Neither Jonathan Parker J nor Peter Gibson LJ suggested otherwise, and I consider that I am bound by what Clarke LJ had to say on this issue.
- I might add that I am not persuaded by Mr Skelton's suggestion that Turner and Lunnun are authorities which do not apply in the clinical negligence context. Clinical negligence claims are claims in negligence. As such, damage is a necessary ingredient of the cause of action in a road traffic claim (as in Turner) just as much as (but no more than) in relation to a clinical negligence claim. I see no justification for treating the two types of negligence claims differently, and I decline to do so. Nor do I consider that Mr Skelton's description of clinical negligence practice (a description which is, anyway, challenged by Mr Stagg) really assists me in relation to what is, in the context of the present issue, a question of what is required to make good a negligence claim as a matter of substance rather than as a matter of practice.
- Nor am I at all convinced by Mr Skelton's point that the position described in Turner and Lunnun is no longer the position under the CPR since (as Master Roberts observed in the case of Turner: see his judgment at ) these are authorities which pre-date the introduction of the CPR. That plainly is not the case in view of various authorities which have followed Lunnun under the CPR regime: Pugh, Enron, Carbopego, Strachan and New Century being examples of such cases.
- Even if all the above is wrong, however, and there is a need for the damage determined by the default judgment to have been damage which the Claimant has alleged in his statement of case (the proxy for the default judgment), and not merely that the Claimant has suffered 'some damage' without reference to how the Claimant has himself put his case, it seems to me that in the present case the answer, as far as the Defendant is concerned, is that the Defendant does accept that the Claimant has suffered at least some of the damage which the Claimant has himself alleged in the Particulars of Claim. This is because, as I have pointed out already, the Defendant does not take issue in its Counter-Schedule with the first of the causation contentions made in paragraph 26 of the Particulars of Claim, namely that the Claimant "would not have suffered the pain and discomfort associated with his developing tumour between" the date when his operation should have taken place (identified as mid-February 2009) "and his eventual operation 19th May 2009" (see sub-paragraph (a)). This is apparent from the passage from the Counter-Schedule to which I have referred in paragraph 22 above, where the Defendant states that "save for any additional pain and suffering which the Claimant experienced during the period of 90 days that the surgery was delayed (and for which no analgesia was prescribed by the Claimant's GP), no other loss or damage arises in consequence of the admitted delay". Admittedly, the Defendant takes issue with the amount of damages which might be awardable in respect of this period, but that is an aspect which, even on Mr Skelton's approach, it is open to the Defendant to maintain because it is, as he accepts, in the category of "causation issues that form part of the quantum case".
- The significance of the Defendant's acceptance that, by reason of its negligence, the Claimant has suffered not merely 'some damage' but some of the actual damage which the Claimant has himself alleged in the Particulars of Claim is that, as I see it, even if Mr Skelton is right and it is not open to a defendant to admit to damage which has not been alleged, this is, anyway, not such a case. In consequence, 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, as opposed to some of the damage alleged (as opposed to merely 'some damage' which has not been alleged by the Claimant), then, it must be open to the Defendant to advance its causation objections to the other aspects of damage alleged by the Claimant. However, I do not myself see any justification for a conclusion that the default judgment covers all the damage alleged in paragraph 26 of the Particulars of Claim, specifically in sub-paragraphs (b) and (c) (and, therefore, the matters listed by Master Roberts in his judgment at : see paragraph 49 above). Applying the Turner and Lunnun approach, and scrutinising the default judgment "with extreme particularity" and "with complete precision" so as to ascertain "the bare essence of what they must necessarily have decided", as required by Kok Hoong and New Brunswick, I do not consider it appropriate to reach such a conclusion. It is sufficient that some of the damage alleged by the Claimant is damage with which the Defendant does not take issue, since this means that the liability alleged by the Claimant in the Particulars of Claim (and established in the default judgment using the Particulars of Claim as a proxy) has been made out. It is not necessary for liability to have been established that all the damage alleged in the Particulars of Claim should have been determined by the default judgment to have been sustained by reason of the Defendant's negligence.
- I should say that I do not consider that this involves the Defendant (rather than the Court or the Claimant) having "the power to determine the ambit of the default judgment insofar as it determines issues of liability", as Mr Skelton suggests. It seems to me that it is simply the consequence of having to use the Particulars of Claim to discern what the default judgment should be taken as having determined in relation to a claim in negligence which requires there merely to be 'some damage' for the cause of action to exist. It is worth having in mind, in this connection, that it would presumably have been open to the Claimant to have sought, by means of an appropriate application to Master Roberts, to define in the default judgment what damage was caused by the defendant's breach of duty. Had that been done, there would have been what Mr Skelton describes as the "forensic certainty" which he suggests is necessary. This was not, however, done, and the consequence, as it seems to me, consistent with Turner and Lunnun, is that the default judgment should be regarded as having determined merely that there was 'some damage', whether (as I am inclined to think ought to be the case, purely as a matter of principle and, I stress, were I viewing matters free from authority) that is in the categories of damage alleged in the Particulars of Claim or (in line with Turner and Lunnun, and so applying the approach which, in my view, authority demands) that is any damage (whether alleged in the Particulars of Claim or not).
- In these circumstances, and for these reasons, I conclude that the Defendant's submissions in relation to this issue are right, and that Master Roberts was wrong to have reached the conclusion which he did. This is, therefore, a case in which CPR 52.11(3)(a) applies. However, this does not entirely dispose of the appeal because it is 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 CPR and contrary to the Overriding Objective. It is this matter which I now come on to address.
CPR compliance and the Overriding Objective
- Master Roberts summarised his approach in his judgment at :
"I find that the practice in clinical negligence cases, having regard to CPR 16.5 and 16PD12.1, is that the defendant is obliged to address all allegations in the defence. Failure to address an allegation of causation will constitute an admission unless the defence sets out the nature of the defendant's case in relation to the issue to which that allegation is relevant. Further I find that it is contrary to the overriding objective dealing with cases justly and a [sic] proportionate cost (r 1.1(1)) and 1.1(2)(f)) for a defendant to ignore a claimant's statement of case, allow judgment to be entered and then to serve a counter-schedule which addresses allegations of causation that should properly have been addressed within a defence that should have been served many weeks earlier."
- Master Roberts went on at  in terms which I have previously set out, before continuing at  and  as follows:
"25. I find that the defendant had a full opportunity to defend the claim on liability but declined to do so. The defendant's approach is tantamount to an abuse of process by way of a back door attempt to challenge the judgment.
26. The case of Turner v Tolman [sic] predates the Civil Procedure Rules. These provide in CPR 35.4(1) that no party may call an expert or put in evidence an expert's report without the court's permission. I comment that the defendant has never sought the court's permission to rely upon oncological evidence or life expectancy expert evidence. This is a breach of CPR 35.4(1). If the defendant's approach were correct, it would drive a proverbial coach and horses through case management. A defendant would be able to side step (as it seeks to here) the need to seek permission to rely on expert evidence and to side step an orderly timetable. The defendant would be able to mount, essentially unfettered, all and any arguments on liability that they wished at the quantum stage, without any proper pleading or identification of the issues. This is contrary to the overriding objective to deal with cases justly and at proportionate cost."
- Master Roberts then raised points concerning costs budgeting, at  and , observing that the rules relating to costs budgeting "would be rendered entirely nugatory if the defendant's submissions were correct" and that "the active case and costs management of cases would be rendered impossible if the defendant's submissions were correct".
The Defendant's position
- Mr Stagg points out that Master Roberts's statement at  of his judgment, by reference to CPR 16.5 and 16PD12.1, that "the practice in clinical negligence cases ... is that a defendant is obliged to address all allegations in the defence" describes a practice which is not (as actually, and fairly, Mr Skelton accepts) confined to clinical negligence cases; on the contrary, CPR 16.5 is of general application and 16PD12.1 applies to all personal injury claims. Mr Stagg goes on to submit that, more importantly still, nowhere in the CPR is it stated that in any case, whether of a clinical negligence type or another type of case, a defendant cannot contest issues of causation in the context of a damages assessment which follows the entering of a judgment in default. In those circumstances, Mr Stagg submits, there is no basis for Master Roberts's conclusion, at  of his judgment, that the Defendant has disobeyed any CPR requirements, including those to be found in CPR 16. Accordingly, it was unfair and wrong for Master Roberts to suggest that there has in the present case been a "back door attempt to challenge the judgment".
- Further, Mr Stagg submits, Master Roberts's suggestion, at , that the Defendant did not seek the Court's permission to rely on oncological expert evidence or life expectancy expert evidence is wrong. Mr Stagg points out, in this regard, that the directions made on 18 October 2013 permitted the parties "in respect of quantum, condition and prognosis ... to rely on the evidence of experts in the fields of (i) oncology [and] (ii) care". Mr Stagg submits that, therefore, the Defendant did ask for the permission to adduce expert evidence which Master Roberts observed should have been sought. Indeed, both oncological experts (Professor Sikora for the Claimant, and Professor Symonds for the Defendant) address the issue of the Claimant's life expectancy, a causation issue. Similarly, Mr Stagg submits, Master Roberts's conclusion, at  and , that the Defendant had disobeyed the rules in relation to identification of experts and the control of the costs of experts are misplaced: the Defendant was not seeking to adduce further expert evidence for which permission had not already been given. The most that can be said is that, with the benefit of hindsight, the Defendant was under the impression that it could adduce expert evidence on causation issues which, on Master Roberts' approach (and that of the Claimant), the Defendant was not entitled to adduce.
- As to Master Roberts's more general criticism of the Defendant's conduct and the suggestion, in particular, at  and , that the Defendant's conduct was at odds with the Overriding Objective because of the failure to plead to the Claimant's case on causation, Mr Stagg submits that if the Claimant had been suddenly ambushed by the service of the Counter-Schedule and Professor Symonds' report in March 2014, then, what Master Roberts had to say might have force, but "the history shows", as Mr Stagg puts it, that the Claimant's solicitors were aware "before and throughout the process of litigation that the defendant was disputing causation". Mr Stagg submits, therefore, that there was no justification for Master Roberts's conclusion that the Defendant has acted in disobedience to CPR, and that the Defendant should not be permitted to advance the causation case which it wishes to put forward.
The Claimant's position
- Mr Skelton submits that Master Roberts was entitled and, indeed, right to adopt the approach which he did. He points out that the Overriding Objective requires that cases are dealt with justly and at proportionate cost (CPR 1.1(1)), and that this includes enforcing compliance with rules, practice directions and orders (CPR 1.1(2)(f)). He also highlights the fact that parties are required to help the Court to further the Overriding Objective (CPR 1.3), and that the Court must further the Overriding Objective by actively managing cases (CPR 1.4(1)), including by (CPR 1.4(2)): "identifying the issues at an early stage" (see (b)); and "deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others" (see (c)). In this regard, Mr Skelton points to the existence of several rules governing a defendant's procedural obligations after service of proceedings, obligations which should be viewed within the wider context of the Overriding Objective because they are geared towards clarifying the issues in dispute at an early stage so that appropriate directions can be given for their expeditious resolution. He identifies, in this context, CPR 15, which requires that a Defence is to be served within 14 days after service of Particulars of Claim (CPR 15.4(1)) or within 28 days after service of Particulars of Claim where an acknowledgment of service has been filed, with it being open to the parties to agree an extension of up to 28 days (CPR 15.5).
- Mr Skelton also emphasises the requirements of CPR 16.5, and its requirements that the following must be included in a Defence:
"(1) In his defence, the defendant must state
(a) which of the allegations in the particulars of claim he denies;
(b) which allegations he is unable to admit or deny, but which he requires the claimant to prove; and
(c) which allegations he admits.
(2) Where the defendant denies an allegation
(a) he must state his reasons for doing so; and
(b) if he intends to put forward a different version of events from that given by the claimant, he must state his own version.
(3) A defendant who
(a) fails to deal with an allegation; but
(b) has set out in his defence the nature of his case in relation to the issue to which that allegation is relevant,
shall be taken to require that allegation to be proved.
(4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation.
(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation."
- Mr Skelton similarly prays in aid the Practice Direction to CPR 16, specifically the fact that 16PD10.2 requires a defendant to deal with every allegation by the claimant in accordance with CPR 16.5(1) and (2), and also the fact that 16PD10.3 reinforces the consequences under CPR 16.5(3), (4) and (5) if that is not done. 16PD12.1 and 12.2, in particular, spell out what must be included in a defence in personal injury claims, as follows:
"12.1 Where the claim is for personal injuries and the claimant has attached a medical report in respect of his alleged injuries, the defendant should:
(1) state in his defence whether he
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of,
the matters contained in the medical report,
(2) where he disputes any part of the medical report, give in his defence his reasons for doing so, and
(3) where he has obtained his own medical report on which he intends to rely, attach it to his defence.
12.2 Where the claim is for personal injuries and the claimant has included a schedule of past and future expenses and losses, the defendant should include in or attach to his defence a counter-schedule stating:
(1) which of those items he
(b) disputes, or
(c) neither agrees nor disputes but has no knowledge of, and
(2) where any items are disputed, supplying alternative figures where appropriate."
- It is Mr Skelton's submission that, in the present case, the Defendant has acted contrary to the Overriding Objective, in: choosing not to serve a Defence defending specific issues of liability; failing to inform the Court in July 2013 (in particular, in not putting before the Court a consent order which included directions for the determination of causation as well as loss and damage), October 2013 and January 2014 that those issues were in dispute; and leaving it until March 2014, 10 months after service of the Particulars of Claim and 3 months before trial, to serve a Counter-Schedule setting out its causation defence and apply (unsuccessfully) to set aside the default judgment. Mr Skelton submits that this has very seriously undermined the effective case management of the litigation in that directions were given and the case was listed for trial without the real issues between the parties ever being properly identified by the Defendant to the court, and the Claimant has not served any evidence to support his causation case. Mr Skelton submits, in this regard, that it would be contrary to natural justice to permit the Defendant to do what it now seeks to do, relying on Carr J's observations in New Century at  and .
- Mr Skelton adds that a further and very unfortunate consequence of the Defendant's actions in this particular case is that, if its appeal succeeds, the Claimant is unlikely to survive long enough or be well enough to attend a relisted hearing, as his life expectancy has been agreed by Professor Sikora and Professor Symonds to be no more than 6-12 months. In the meantime, Mr Skelton points out, the Claimant will also not receive the damages which he needs to fund professional care in order to ameliorate his suffering during his final months of life.
- Mr Skelton lastly suggests, although he acknowledges that he does so without formal evidence to support what he says, that practitioners in the field of clinical negligence know that there are three essential components to such cases ((i) breach of duty, (ii) causation, and (iii) quantum), and that (i) and (ii) are pleaded in the Particulars of Claim, with (iii) being dealt with in a Schedule of Loss which is subsequently served. If a defendant does not plead its case on causation in the Defence, then the Defence is regarded as embarrassing for lack of particularity. What a defendant cannot do, Mr Skelton submits, is simply ignore the issue of causation in its Defence and then, at a later possibly indeterminate date, seek to plead its full case on that issue. Having set out its case on causation in the Defence, a defendant should also, Mr Skelton submits, serve a Counter-Schedule in which it addresses the nature and extent of the injuries and losses more fully and, insofar as non-admissions have been made, clarifies its position by way of admissions or denials. In its Counter-Schedule, insofar as consistent with its Defence, a defendant may raise arguments as to the nature and extent of the injuries and losses claimed by the claimant: for example, it can dispute the severity of a specific injury, or the financial losses or care needs that are alleged to have been caused by those injuries. However, a defendant cannot change its case on primary liability causation within a Counter-Schedule, and cannot raise new issues. To do that, it must amend its Defence. It is in this context that Mr Skelton highlights the distinction to which I have previously referred, between "causation issues that form part of the liability case", on the one hand, and "causation issues that form part of the quantum case", on the other.
Discussion and decision
- I prefer Mr Stagg's submissions on this issue also. I agree with him that Master Roberts was wrong to take the view that the Defendant had acted in breach of the CPR and contrary to the Overriding Objective by, in particular, not serving a Defence setting out its case on causation. Although I am clear that the situation which has arisen in the present case is very much to be regretted, and should be avoided in the future, nevertheless I do not consider that this is a case in which it is 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 I have reached in relation to the effect of the default judgment, it follows that, unless there is anything in the CPR which precludes the Defendant from contesting issues of causation in the context of an assessment of damages hearing after a default judgment on liability has been obtained, there can be no non-compliance with the CPR in the Defendant doing what it has done in the present case. In this regard, Mr Stagg rightly points out that CPR 12.5(3) and CPR 12.7(2) say absolutely nothing about a defendant being so precluded.
- It follows also from the conclusion which I have reached in relation to the effect of the default judgment that there was no obligation on the part of the Defendant to serve a Defence setting out its case on causation because the Defendant is 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, it seems to me that Mr Skelton's (and Master Roberts's) reliance on CPR 16.5 and 16PD12.1 is misplaced: if it is open to the Defendant to advance its causation case in the context of the assessment of damages phase (post-default judgment), such that there was no necessity for the Defendant to serve a Defence, then, what a Defence, had one been served, should have contained is neither here nor there. In the circumstances, I do not consider it right for Master Roberts to say, echoing what Carr J had to say in New Century at , that the Defendant has acted in a manner which "is tantamount to an abuse of process by way of a back door attempt to challenge the judgment" (Judgment, ): the Defendant was not obliged to serve a Defence and so it is not appropriate to speak in terms of abuse of process, or of 'back door' attempts having been made by the Defendant, or of the Defendant having sought to act in a way which is "contrary to natural justice" (as suggested by Mr Skelton in paragraphs 42 and 43 of his Skeleton Argument).
- As to Mr Skelton's reliance on what he describes as the practice in the field of clinical negligence, Mr Stagg does not accept that what Mr Skelton had to say was the universal practice adopted by practitioners. Mr Skelton himself acknowledges that there is no evidence, as such, before me either way. It seems to me, in any event, that what I need to consider is not a (disputed) description of practice, but what the CPR require since the CPR contain the regime which the Rules Committee have required parties to abide by. Unless and until revisions are made to the CPR in order to reflect what Mr Skelton suggests is clinical negligence practice, in my view, it would be wrong for me to look elsewhere for assistance on the current issue.
- I should make it clear that I speak above in terms of there being no necessity for the Defendant to have served a Defence in the present case because it seems to me that it is only if it was necessary that the Defendant should have served a Defence, or if there was an obligation on the part of the Defendant to serve a Defence, that CPR 16.5 and 16PD12.1 come into play. I should, however, observe that 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. Specifically, it would have been apparent to Master Roberts, when deciding whether to enter the default judgment and anyway when considering what directions were appropriate last October, that the Defendant was advancing a causation case which, in the event, did not emerge in any Court-related document until service of the Defendant's Counter-Schedule earlier this year. (I leave aside, for present purposes, the point that the Claimant's solicitors knew that the Defendant was under the impression throughout that the causation case was open to it, and that they believed that the Defendant was making a mistake in not serving a Defence).
- In short, whatever the formal position, in terms of whether the Defendant was obliged to serve a Defence, in my view, the better course would have been to have served a Defence. That, it seems to me, is what ought generally to happen in cases such as the present not because it is strictly necessary that this be done, but because it avoids the type of difficulties which have arisen in this case and about which Master Roberts was understandably so concerned. The fact that these difficulties have been caused in the present case by the Defendant not serving a Defence does not mean, however, that the Defendant has acted in breach of the CPR by not serving a Defence. If and insofar as Master Roberts was suggesting otherwise at , ,  and  of his judgment, then, in my judgment, he was mistaken.
- I consider that the same applies to Master Roberts's reliance on the Overriding Objective, and Mr Skelton's similar reliance on the Overriding Objective in argument before me. I readily acknowledge that, as Mr Skelton rightly points out, the Overriding Objective requires that cases are dealt with justly and at proportionate cost (CPR 1.1(1)), and that this includes enforcing compliance with rules, practice directions and orders (CPR 1.1(2)(f)). However, in the light of my conclusion in relation to the effect of the default judgment and in view also of my further (related) conclusion that the Defendant was under no obligation to serve a Defence in this case, I struggle to see how it can be right to conclude that the Defendant has acted in a way which is contrary to the Overriding Objective, in particular in the various respects identified by Mr Skelton. This applies also to Mr Skelton's reliance on CPR 1.3 (the requirement that parties should help the Court to further the Overriding Objective), as well as CPR 1.4(1) and CPR 1.4(2) (identification of the issues in dispute in the context of active case management).
- In the present case, the Defendant was under the impression that it had done what was required and, in particular, that the directions which were agreed with the Claimant, and embodied in the consent order made by Master Roberts on 18 October 2013, covered the issues which the Defendant believed were in dispute after the obtaining of the default judgment. Strictly, as I have held, the Defendant was right that those issues included the causation issues which were later identified in the Counter-Schedule, and the Claimant was wrong to think otherwise. It is regrettable, in such circumstances, that a list of issues was not prepared for the purposes of the October CMC, since such a list would have highlighted that there was a difference in view between the parties as to what the outstanding issues were, but I was told by Mr Skelton that no such list was prepared given that the parties had managed to agree directions (without, in doing so, discussing, at least with any precision, what the outstanding issues were), and so no hearing actually took place before Master Roberts. Be that as it may, in the circumstances, I do not consider that the criticism levelled at the Defendant by Mr Skelton (and Master Roberts) is justified.
- 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: if, as Master Roberts put it in the judgment at , the Defendant had simply ignored the Particulars of Claim. In the present case, however, there was what Mr Stagg described as a "history", in which Bevan Brittan had sent their "LIMITED ADMISSION" letter on 10 October 2011 (well before proceedings were commenced) and in which there had been a telephone conversation between solicitors on 5 June 2013, which specifically concerned the defendant's intended response to service of the proceedings and in which (consistent with the "ADMISSION" letter the same day, albeit that that was apparently not received) Bevan Brittan had made it clear what the Defendant's position was and, in particular, although in general terms, that the Defendant intended running the case which ultimately came to be set out in the Counter-Schedule served earlier this year.
- Had none of this happened, and the position had been that the Defendant had simply said and done nothing, so that the Claimant was wholly in the dark as to what its stance was, there might be more substance in the criticisms made by Mr Skelton and Master Roberts. That is not, however, what happened. In fact, as Mr Skelton very candidly and fairly admitted, 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; apparently Cogent considered that the Defendant was making a mistake in choosing, in such circumstances, not to serve a Defence. Although I recognise that it was not for Cogent to tell Bevan Brittan how to conduct their client's (the Defendant's) case, this does nevertheless serve to underline the fact that the Defendant's Counter-Schedule was not some sort of unexpected ambush.
- As I see it, the fact that Cogent knew that the Defendant was under the impression that it was open to it to advance the causation case which ultimately came to be set out in the Counter-Schedule also somewhat undermines Mr Skelton's point that the Defendant is 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)). It seems to me that these are criticisms which, if they have validity as against the Defendant, might very well also have validity as against the Claimant. The Claimant, after all, knew that the Defendant was intending to advance a causation case which, according to the Claimant (or his solicitors at least), it was not open to the Defendant to put forward. 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. This was, regrettably, not done by either side with the consequences which have ensued, including, most sadly, the fact that the Claimant, who has limited time to live, remains in doubt as to what the outcome of these proceedings will ultimately be.
- As to Master Roberts's other criticism, in the judgment at , that the Defendant did not seek the Court's permission to rely on oncological expert evidence or life expectancy expert evidence, this is, strictly speaking, wrong because, as Mr Stagg points out and as made clear in the directions made on 18 October 2013, the parties were permitted "in respect of quantum, condition and prognosis ... to rely on the evidence of experts in the fields of (i) oncology [and] (ii) care". The difficulty was that because the parties did not identify the issues which were in dispute, there was no express identification of the issues to which this expert evidence was to be directed. All that the directions stated was that permission was "given to call the said experts on matters remaining in issue", somewhat begging the question of what those issues were. Identification of the fields of expertise did not enlighten the reader, and (through absolutely no fault of his) would not have enlightened Master Roberts when he was sent the draft consent order setting out the directions agreed between the parties. In short, I do not see how it can be said that the Defendant failed to ask for appropriate permission. I consider that such criticism as might be made in this context is, again, criticism which can be directed at both parties, namely that neither of them sought to agree what the outstanding issues were, so that Master Roberts could see what the expert evidence for which permission was being sought was to be directed at.
- For all these reasons, I consider that Master Roberts was wrong to reach the decision which he did; and that, therefore, CPR 52.11(3)(a) applies in this case.
- In conclusion, therefore, I allow the Defendant's appeal and order that the Defendant is not precluded from advancing the causation arguments set out in the Defendant's Counter-Schedule.