Default judgment is causation still a live issue?
The recent case of Symes v St Georges Healthcare NHS Trust is an essential read for practitioners undertaking personal injury and clinical negligence litigation. It serves as a timely reminder to consider carefully what is intended when judgment has been entered in the claimant’s favour with damages to be assessed.
For the majority of claims the nature and extent of the injury arising from admitted negligence is not in dispute. It is the quantification of the losses arising from that injury which remain in issue. However there are some claims where a defendant, whilst admitting breach of duty and admitting that some damage arises from that breach, may still raise arguments as to the extent of the damage caused by the negligence. Consequently, whilst judgment may be entered, issues of causation can still arise.
A careful analysis of the facts in Symes is helpful in understanding what is intended by judgment being entered and it acts as a useful exercise in ensuring issues are considered at an early case management stage.
The facts in Symes are straightforward. The claim related to a delay of approximately 4 months in the diagnosis of a malignant tumour on Mr Symes’ face. Mr Symes alleged that the failure to diagnose the tumour in a timely fashion led to a delay in a referral for urgent surgical intervention as a result of which, not only did he need more extensive surgery which affected his facial nerve, but it had allowed the tumour to metastasise leading to inoperable lung cancer and a reduction in his life expectancy.
At the pre issue stage, the solicitor for the Trust had written to the claimant’s solicitor with a limited admission. The Trust admitted they were in breach for the delay in diagnosis and the subsequent 90 day delay in undertaking surgery, but the letter specifically denied that the delay had any impact on the nature and extent of the surgery performed, nor on the claimant’s post operative treatment and his life expectancy. With the letter they served on a without prejudice basis an expert report from their instructed oncologist.
The claimant went on to issue court proceedings, and it was accepted that during a post issue telephone conversation the Trust’s solicitor re-iterated the admission, but expressly indicated that whilst the Trust agreed to judgment being entered the claimant was being put to strict proof as to the nature and extent of the injury and loss caused by the admission. The solicitor made clear that the claimant’s case on causation as detailed in the Particulars of Claim was not admitted.
Following service of the proceedings the Trust neither served nor filed an acknowledgement or a Defence and so through its own motion the court on 21 July 2013 entered judgment for the claimant with the amount to be decided by the Court and listed the matter for a case management conference on 18 October 2013.
During the period between judgment being entered and the case management hearing, the parties’ solicitors discussed an interim payment. The solicitor for the Trust made clear that an interim payment would not be made as there were substantial differences between the parties on quantum. Nevertheless the parties agreed directions on quantum leading to the case management hearing being vacated. There was therefore never a list of issues before the Court.
It seemed that fundamentally in this case there was a misunderstanding on the part of the claimant’s solicitor as to what was meant by default judgment. It seems clear from the appeal court’s reasons that the claimant’s solicitor knew that the Trust had raised issues on causation, but in error had failed to file a Defence and allowed judgment to be entered in default. The solicitor therefore took the view that this precluded the Trust from that point onwards from raising issues of causation.
However that was the wrong interpretation and that was evident from the events that unfolded resulting in the matter coming before the Court on appeal. The parties had agreed standard directions for assessment of damages and again a further request for an interim payment was refused. This was followed by the Trust solicitors re-iterating that their understanding of default judgment was that whilst the claimant did not need to prove the breach had caused damage, he still had to prove the nature and extent of the damage caused. The subsequent counter schedule served with supporting expert evidence made clear that the defendant limited the claimant’s case to a period of 90 days’ pain and suffering and set out the defendant’s arguments on causation.
On 21 March 2014, the matter came before Master Roberts for the hearing of the claimant’s application to have the defendant’s counter schedule struck out and for the defendant’s cross application to have the default judgment set aside. The claimant’s application was allowed and the defendant’s dismissed. The defendant appealed against the decision that entering default judgment precluded the defendant from contesting causation.
In a carefully considered judgment with recourse to the relevant authorities, Simon Picken QC sitting as a Queen’s Bench Judge allowed the defendant’s appeal. The judgment is helpful in understanding what is intended when judgment is entered with damages to be assessed in a tort action (whether that be by default, summary judgment or by a judicial decision having heard arguments). Judgment is an acknowledgement that the negligence (whether admitted or not), caused some damage to the claimant. Damage beyond ‘de minimis’ damage is always required for there to be a cause of action. However, the nature and extent of the loss or damage caused forms part of the quantification of the claim.
This may seem evident and for the most part it is. However, the important factor to remember is that entering judgment does not prevent a defendant raising significant causation issues on the nature and extent of the injury caused and the losses that flow from that injury. The issue arose in Symes because the claimant’s solicitor had misunderstood and in hindsight ought to have invited the Court at the case management conference to define what the Court intended, when default judgment was entered. This would have brought the issue to the fore sooner, and avoided a costly trial being adjourned as a result.
Some may see the decision as unfair and allowing a Trust to run causation arguments through the ‘back door’ without a Defence. This was also considered in the judgment with arguments that the defendant was in breach of the CPR and had abused the Court process by seeking to run arguments through the counter schedule. This argument was dismissed as there is no strict requirement within the CPR for a defence to be filed.
It is a harsh lesson for the claimant in this claim, but I highlight the case as it is one that most claimant practitioners should take on board and on any claim where there may be doubt on whether causation remains a significant issue, notwithstanding judgment being entered, the Court should be asked to consider the position at the earliest possible stage.