Upholding default judgment in the context of a jurisdictional challenge

by Daniel Matchett, an international serious injury lawyer at Irwin Mitchell

The recent interlocutory judgment in our case of Mann v (1) Towarzystwo Ubezpieczen Inter Polska Sa & Ors. provides a stark reminder of the damaging delay which can be caused to an injured party’s pursuit of justice by a defendant’s “continuing blend of delay and inappropriate procedure”[i]. 

More than this, it stands as a reminder that, in accordance with the overriding objective under r.1.1, the focus of any personal injury claim should be the efficient and proportionate pursuit of justice between the parties.  

We are pleased that the court has reiterated in strong terms that it will not tolerate inexcusable and unjustified delay in defendants responding to a claim against them.  Beyond that, we are pleased that the court has emphasised the need for personal injury claims to progress promptly and efficiently, without causing unjustified delay to an injured person’s pursuit of justice.

Factual background and procedural chronology

Mrs Mann underwent cosmetic surgery in Poland in September 2013.  Mrs Mann alleged that as a result of negligence in the performance of the surgery, she was caused significant physical injury. 

Accordingly, Mrs Mann commenced proceedings in England against the Polish insurer of the Polish clinic and surgeon, the clinic, and the surgeon. Sadly, Mrs Mann passed away in 2016 and the claim is maintained by her husband on behalf of Mrs Mann’s estate.

 The recent judgment of Master Thornett concerned two applications pursued by the first defendant.  The relevant procedural chronology in respect of the claim against the first defendant can briefly be summarised as follows:  

• 14 November, 2014: Letter of claim sent to the third defendant (the surgeon);
• 10 March, 2015: Letter of claim sent to the second defendant (the clinic);
• 24 June, 2016: acknowledgement received from the first defendant of the letter of claim sent to the second defendant;
• 3 August, 2016: a letter of claim is sent directly to the first defendant;
• 22 August, 2016: by letter, the first defendant provides what it describes as a full denial in response to the letter of claim;
• 20 September, 2016: the claim form is issued, naming all three defendants
• 24 April, 2017: service is affected on the second and third defendants in Poland, via the Foreign Process Section of the High Court
• 8 May, 2017: acknowledgements of service filed by the second and third defendants, indicating that they would seek to challenge the jurisdiction of the court;
• 17 May, 2017: service is affected on the first defendant in Poland, via the Foreign Process Section of the High Court;
• 14 July, 2017: an application by the second and third defendants to contest jurisdiction is dismissed.  The first defendant was on notice of the application but did not attend the hearing;
• 6 September, 2017: default judgment is granted against the first defendant in the absence of an acknowledgement of service or defence to the claim
• 28 March, 2019: a case management and disposal hearing takes place before Master Thornett.  The first defendant suggests that it intends to apply to set aside the default judgment entered against it. Master Thornett orders that the first defendant must make any such application by 15 April, 2019;
• 15 April, 2019: the first defendant applies to set aside the default judgment against it;
• 11 November, 2019: the first hearing of the first defendant’s application, which went part-heard due to the length of the first defendant’s submissions; 
• 29 July, 2021: the second hearing of the first defendant’s application.  The first defendant sought orally to amend its application to incorporate a challenge to the jurisdiction of the English Court. The first defendant was granted a short period of time in which to “pursue its proposed procedural path correctly”;
• 12 August, 2021: the first defendant applies for permission to amend its original application to include a challenge to jurisdiction under Part 11 of the CPR, relying on the court’s discretion under r.3.10 to grant relief in respect of the significant lateness of the application;
• 5 October, 2021: the hearing of the first defendant’s second (August 2021) application;
• 1 November, 2021: judgment is handed down dismissing the first defendant’s applications.

  The first defendant’s applications

 As set out above, the first defendant belatedly responded to the claim by way of two interlocutory applications, the first to set aside the default judgment and the second seeking to amend its original application by including a jurisdictional challenge.  Both applications met with short shrift within the judgment of Master Thornett dated 1 November, 2021.

Master Thornett noted the significant delay caused to the claim by “…a continuing blend of delay and inappropriate procedure adopted by the first defendant rather than unavoidable delays within the court system” (paragraph 1).  The Master particularly criticised the first defendant’s delay in issuing, and belatedly seeking to amend, its application in response to the default judgment against it.

In considering the explanation provided by the first defendant for this delay, Master Thornett concluded, at paragraph 5a, that “In summary, [he found] none of this persuasive” and noted the absence of an explanation justifying the delay on the first defendant’s part in responding to the claim:

“I find that delay of itself…, by a professional defendant whose insured is a co-defendant, sufficient alone to dismiss the First Defendant’s Application in the absence of convincing explanation.” (paragraph 5d)

Master Thornett found that this delay was sufficient reason in itself to dismiss the first defendant’s application to set aside default judgment.  Insofar as the first defendant sought to amend that application to include a jurisdictional challenge, Master Thornett again strongly criticised the delay in such an application being made:

 “I have no hesitation in dismissing the First Defendant's Application for failing sufficiently, if at all, to provide good reasons both for not drafting the April 2019 Application as is now sought and for not issuing the subsequent Application to amend sooner.” (paragraph 14p)

The Master also noted that the failure by the first defendant to file and serve an acknowledgement of service indicating an intention to challenge jurisdiction (on which failure the default judgment was based) precluded the first defendant from belatedly pursuing a jurisdictional challenge of the type which it sought permission to include.

Further than that, Master Thornett concluded that the first defendant was incorrect in its understanding of the law which it considered required it to seek to amend its application to include reliance on r.11 where it had previously been pleaded entirely in reliance on r.13:

“I need only say that I reject the first defendant's proposition that, having elected to pursue a challenge as to service utilising CPR 13, a step entirely supported by the authority of Shiblaq, it is nonetheless now obliged – and at a very late stage and at the additional expense of time and cost – to seek to graft further material under Part 11.” (paragraph 12cc)

Master Thornett accordingly dismissed both the first defendant’s original application to set aside the default judgment against it and its later application to amend, setting consequential directions towards the assessment of costs and belated case management. 

Summary

As Master Thornett observed in opening his judgment, the progression of this claim to date has, as a result of the first defendant’s “…continuing blend of delay and inappropriate procedure…”, been “…unusually and undesirably protracted…” (paragraph 1).   It may sometimes be overlooked, in the swirl of procedural challenges and legal intricacies, that at the heart of this matter has been a woman alleging significant injury and harm, and in more recent years a grieving husband assuming the burden of the claim on his late wife’s behalf.  It is to be hoped that the first defendant will now take note of this reality and will realign its focus in dealing with the claim moving forward. 

This judgment also stands as an example of the importance of foreign insurers, and other overseas defendants, obtaining early advice on the Civil Procedure Rules and their implications in international legal claims. 

From the outset of the claim against the first defendant, we encouraged it to obtain such advice (in the same way that the second and third defendants had done).  Regrettably, the first defendant elected not to do so for some considerable time (seemingly between service of the claim in May 2017 and the case management hearing in March 2019).  It might be supposed that had the first defendant obtained such advice at the outset of the claim against it, the lamentable delay caused by its response to the claim might have been avoided.

Some four-and-a-half years following service of the claim, our client may now finally take the next step forward towards a just outcome.

Find out more about Irwin Mitchell's expertise in supporting people following overseas surgery at our dedicated medical negligence abroad section.  

“I have no hesitation in dismissing the First Defendant's Application for failing sufficiently, if at all, to provide good reasons both for not drafting the April 2019 Application as is now sought and for not issuing the subsequent Application to amend sooner.””