SETTING ASIDE A DEFAULT JUDGMENT: HAVE COGENT EVIDENCE (AND A DRAFT DEFENCE) TO HAND: DEFENDANT’S DELAY ALONE WOULD HAVE LED TO APPLICATION BEING REFUSED IN A CLINICAL NEGLIGENCE CASE
I am grateful to Barrister Leslie Keegan for their note of the judgment of Master Cook in Buckingham -v- Elneil (15th July 2022)*. The Master refused the defendant’s application to set aside a default judgment. The defendant did not have any cogent evidence to demonstrate that there was a real prospect of defending the claim, there was no draft defence. In any event the defendant’s delays were such that the application would have been refused on that ground alone.
“The best that Mr. Perfect can do is to assert that “The Claimant would receive a windfall. ”This will always be the case where the Court arrives at the conclusion that the breach of the rules is so serious; there is no good reason for the breach and in all the circumstances judgment must stand.”
THE CASE
The claimant brings a clinical negligence action against the defendant. Enquiries were made beforehand of the correct address for service. there was no response in relation to a nominated address. The defendant was a director of a limited company and proceedings were served at that address. Copies were also sent to the Medical Defence Unit, which the defendant had indicated was her insurer at the relevant time. There was no acknowledgment of service and the claimant, entered judgment in default.
Judgment was entered on the 16th October 2019, the order was sealed on 3rd April 2020.
There was a CCMC on the 16th December 2021 where the defendant was represented by counsel. The Master informed the defendant’s representatives that if any application to set judgment aside was to be made it needed to be made promptly. Directions were made and a trial window set beginning 1st October 2022.
*This post is based on Leslie’s note of the judgment, I have set the note out in full below.
THE APPLICATION TO SET JUDGMENT ASIDE
The application to set judgment aside was not made until the 1st February 2022. This was two months after the CCMC.
THE MERITS OF THE DEFENDANT’S APPLICATION
In relation to the question of whether the defendant had a real prospect of defending the claim, the Master observed:
“(i)It does not appear that there is any indication of independent advice or a report that supports the contention that D. adequately consented the claimant
(ii)There is no draft defence supported by a Statement of Truth setting out the nature and extent of D’s case re breach of duty or causation”
The Master went on to say
“The difficulty is that D. has not fully articulated a defence to the allegations made nor has causation been dealt with.
I have to conclude that D. has no real prospect of defending the Claim and given the length of time that D has known about the Claim – October 2019 I would expect some independent medical advice or at least a draft defence supported by a Statement of Truth.”
DELAY
If I were to be wrong in reaching that conclusion, I would have no hesitation in concluding that this application was not made promptly.
She is a professional consultant surgeon operating on members of the public. ,She operates in an established clinic and has a PA. I cannot accept that on receipt of the Letter of Claim or the Particulars of Claim that she did not know what the proceedings were about. I have every sympathy for her personal circumstances – her husband suffered with Covid and died and had close family members who were ill. However, when something as serious as litigation it is easy to give instructions , easy to respond , explain and to ask for time and if she could not do it she had a PA to do it.
At the CCMC that took place in December 2021 I emphasised the need to act promptly There are a number of cases cited in the notes to CPR 13.3 in The White Book Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC) the judge concluded that a delay of 59 days was “very much at the outer edge of what could possibly be acceptable” whilst in other cases , less than this was considered too long. In the instant case the application was well outside the generous ambit of what is considered a prompt application.
The application to set aside judgment is a request for relief from sanction and involves a consideration of the criteria set out in the case of Denton v TH White Ltd [2014] EWCA Civ 906:
Is the breach significant and serious. The failure to respond to the Claim is a serious and significant breach of the rules of civil procedure.
Whether, there is good reason for the breach- contrary to the submissions made, there is no sensible conclusion that confusion arose over service. We know that the proceedings certainly came to her attention in October 2019 but even before that the address at 12 Devonshire Street was an address for the Defendant on the public record and if she was not there then she should have made arrangements for collection of her post from that address.
I reject the contention that there was confusion and delay in correspondence with the Court service and in correspondence with the Claimant. The Defendant knew the identity of the Court and the identity of the Claimant’s solicitors. She knew that judgment had been applied for in October 2019. In the circumstances the claimant is right to cast doubt on some of the contentions made by the defendant.
I reject the submission that the defendant was baffled by correspondence from a Magistrates Court. None of this serves to explain or provide good reason for the breach of the civil procedure rules by the defendant.
I have every sympathy for her personal circumstances and for her professional situation. She is, however, a professional person carrying out professional duties and has the support of a PA.
The best that Mr. Perfect can do is to assert that “The Claimant would receive a windfall. ”This will always be the case where the Court arrives at the conclusion that the breach of the rules is so serious; there is no good reason for the breach and in all the circumstances judgment must stand.
There has to come a time when a judgment remains a judgment and is of particular relevance in this claim.
I therefore dismiss the application by the defendant to set aside judgment in default.
COUNSEL’S NOTE OF THE JUDGMENT
IN THE HIGH COURT OF JUSTICE Claim No.: QB-2021-002573
QUEEN’S BENCH DIVISION
Master Cook
B E T W E E N:
MISS NICOLA BUCKINGHAM
Claimant
-and-
MISS SOHIER ELNEIL
Defendant
Before Master Cook on 15th July 2022
Counsel for Claimant – Leslie Keegan 7 Bedford Row
Counsel for Defendant/Applicant – Andrew Perfect, Serjeant’s Inn
Application by Defendant to set aside judgment in default.
The application is made on behalf of the defendant in a clinical negligence claim.
The application before the court is supported by the Defendant’s statement of 27th January 2022.
The reasons opposing the application to set aside judgment are set out in the statement of Miss Sukhdev Gill dated 12th April 2022. There is no evidence from the defendant in response to that statement. There is no statement from the solicitor acting on behalf of the defendant.
The claimant underwent treatment by the defendant for a variety of problems with bowel dysfunction. She was referred by a consultant gastroenterologist to the defendant. The defendant recommended Sacro colpopexy to treat this and recommended colposuspension to treat stress urinary incontinence.
The colposuspension surgery and the Sacro colpopexy were carried out on 26th January 2010. The claimant had an unsatisfactory outcome from the surgery and had to undergo surgical drainage of haematomas arising out of the index surgery. During the evacuation of the haematomas the claimant suffered an iatrogenic bladder injury.
At para 19 of the Particulars of Claim, paras (i) to (iv) the claimant complained that the advice given by the defendant about the colposuspension was wrong in the following respects :
- Recommending colposuspension, as undertaken on 26th January 2010, in the absence of any significant symptoms reported by the claimant attributable to stress urinary incontinence. Such symptoms as the claimant had were manageable and did not require surgery.
- Failing to advise,well in advance of the Operation, as to the alternative treatment options available to the Claimant in respect of her stress urinary incontinence and as to the option of no treatment at all. Alternative treatments included physiotherapy in the form of a trial of supervised pelvic floor muscle training, the use of an autologous rectus fascial sling, and treatment by way of intramural bulking injections. The Claimant had not undergone physiotherapy prior to the operation.
- Failing to advise, well in advance of the operation, as to following risks of proceeding with colposuspension:
- A 20-30% risk of the procedure exacerbating her posterior wall prolapse.
(b) The risk of the procedure not improving the Claimant’s condition.
- Failing to advise, well in advance of the operation or at all, that the most appropriate option for the Claimant was to undergo conservative treatment in the form of physiotherapy, or alternatively no treatment at all
At para 19 of the Particulars of Claim, paras (v) to (xi) the claimant complained that the advice given by the defendant about the Sacro colpopexy was wrong in the following respects:
- Recommending prolapse repair surgery by way of abdominal salcrocolpopexy, as undertaken during the Operation on 26 January 2010, in the absence of any or any significant symptoms reported by the Claimant attributable to the prolapse.
- Failing to advise, well in advance of the operation, as to the alternative treatment options available to the Claimant in respect of her prolapse and as to the option of no treatment at all. Alternative treatments included the use of pessaries as an alternative to surgery, and vaginal repair using sutures.
- Failing to advise, well in advance of the operation, as to the fact and extent of the risk of mesh erosion and the potential consequences thereof. The risk of mesh erosion was approximately 1 to 4% and the potential consequences thereof included dyspareunia, chronic pain, and the potential permanence of the mesh.
- Failing to advise that the risks referred to above were increased by the presence of the abdominal adhesions and the pelvic cyst.
- Failing to advise that the procedure might not improve the Claimant’s prolapse at all.
- Failing to advise, well in advance of the operation or at all, that the most appropriate treatment option for the Claimant in all the circumstances was to leave the prolapse unrepaired. Alternatively, failing to advise native tissue repair.
- Recommending unnecessary surgical treatment of the haematoma, as undertaken on 11 May 2010.
Causation is dealt with at paragraphs 20 to 22 of the Particulars of Claim:
- But for the Defendant’s negligence as pleaded in paragraph 19(i)~(iv) herein, the Claimant would not have proceeded with the colposuspension operation. She would therefore have avoided the colposuspension operation itself and all its consequences including the injuries summarised below.
- But for the Defendant’s negligence pleaded in paragraphs 19(v)-(x) herein, the Claimant would not have proceeded with the prolapse repair operation. She would therefore have avoided the prolapse repair operation and all of its consequences including the injuries summarised below.
- But for the Defendant’s negligence pleaded in paragraph 19(xi) herein, the Claimant would not have undergone the operation on 11 May 2010. The haematomas would have resolved without surgical treatment.
The claim has a lengthy procedural history. The defendant herself is a professional person operating from Harley Street at two addresses 5 Devonshire Place and 16th Devonshire Street.
Both Counsel have prepared very full written arguments, and, in the circumstances, it has not proved necessary for counsel to make extensive submissions today. I take the relevant chronology which is agreed from the combined written submissions.
In April 2018 the claimant’s solicitors wrote to the defendant requesting the claimant’s medical records. There was further communication in September 2018. The Claim was issued on 16th May 2019.
The Letter of Claim dated 11th July 2019 was sent to the defendant by post to 16 Devonshire Street. The Defendant sent a letter dated 17th July 2019 from 5 Devonshire Place in which she acknowledged the letter of 11th July 2019; acknowledged that it related to Mrs. Buckingham’s claim and asked what years the claim pertains to as her indemnity cover had changed over the years (exhibit B to Sukhdev Gill’s Statement, 12.8.2020, page 88 of bundle).
By an email dated 23rd July 2019 (page 90 of bundle) sent by Ms. Sukhdev Gill to the defendant’s PA , she was informed that the period related to 2008 to 2010.
On 29th July 2019 when no reply had been received regarding the identity of the indemnity insurers, an email was sent by Sukhdev Gill to the defendant’s PA, asking for information regarding the insurer’s/ legal representative’s details for the defendant. (page 90 of bundle).
On 31st July 2019 a letter was sent to the defendant at 5 Devonshire Place stating that court proceedings had been issued and requesting confirmation of arrangements for service of the proceedings. It also stated that: “ Unless we hear from you or your Solicitors or Insurers accordingly, we must, to effect service, send the Court papers direct to you at 16 Devonshire Street, London W1G 7 AF, which we understand to be the appropriate address. Please could you or your Solicitors or Insurers let us know within the next 7 days if it is otherwise” (page 93 of bundle).
A Companies House search done on 30th July 2019 indicated that the defendant was a director of Harley Street Diagnostic Centre at 16 Devonshire Street, London (page 95 of bundle).
On 31st July 2019, Sukhdev Gill, the Claimant’s Solicitor, also sent an email to the defendant’s PA attaching the correspondence (page 92 of bundle)
By a letter dated 2nd August 2019, received on 8th August 2019, the defendant responded regarding the identity of her insurers for the relevant period and stated that it was the MDU. It stated that she was under different insurers after that period (page 97 of bundle).
On 8th August 2019 the Claimant’s solicitors wrote to the MDU (page 99 of bundle) and enclosed copies of:
The letter of Claim sent to the defendant on 11th July 2019
Issued Claim Form
Letter sent to the defendant on 31st July 2019
Letter from the defendant dated 2nd August 2019, received on 8th August 2019
It also stated that the papers would be served directly on the defendant at 16 Devonshire Street, unless it was heard otherwise.
No response was received from the MDU and when a further Companies House search done on 4th September 2019 indicated that the defendant was a director Of Harley Street Diagnostic Centre at 16 Devonshire Street, London (page 101 of bundle) then on 5th September 2019 documents were served on the defendant at 16 Devonshire Street. The documents served were the Claim Form, Particulars of Claim, a C & P report dated 23rd July 2019, statement of special damages, a response pack and Form N251 setting out funding arrangements. The defendant was requested to inform her insurers and informed that the Defence was due by 21st September 2019. (page 105 bundle).
On 10th September 2019, the Claimant’s solicitors served documents on the MDU (page 107 of bundle) The documents served were the Claim Form, Particulars of Claim, a C & P report dated 23rd July 2019, statement of special damages, a response pack and Form N251 setting out funding arrangements.
On 10th September 2019, the Claimant’s solicitors completed a Certificate of Service. (page 109 of bundle).
On 11th September the MDU (page 110 bundle) stated it was not its practice to state whether an individual is or has been a member of the MDU and that they could not assist with the enquiry or act further on the papers.
On 4th October 2019 at 18.52, the defendant’s PA, sent an email to Sukhdev Gill. She stated that she received on that day the Claim dated 5th September 2019. It stated that they had been at The London Clinic (at 5 Devonshire Place) since April 2019 and all correspondence should be sent to 5 Devonshire Place (page 115 bundle).
On 22nd October 2019, Sukhdev Gill wrote to the defendant’s PA at 5 Devonshire Place, acknowledged receipt of email of 4th October 2019 from the defendant’s PA; informed the defendant that she had not heard from insurers or legal representatives for her and had written to Court to request judgment is entered as she had not received an acknowledgment or Defence to Claim (page 121 bundle).
The evidence from the defendant seems to suggest that the defendant was under the impression that she was required to prepare a medical report. This is one of the many oddities in this case. The Claimant’s solicitors did not at any time request the defendant to prepare a report on the Claim for them (Page 82 of bundle, para 5 of S. Gill’s statement).
Ms Gill also confirms that two company searches that she carried out (one on 30th July 2019 and one on 4th September 2019) confirmed that a valid address for the defendant was 16 Devonshire Street , London. Both searches confirmed that address as an address for the Harley Street Pelvic Care Centre and that the defendant was an active director of that clinic.
The response of 4th October 2019 confirmed that the Claim had been received and stated that the address was the London Clinic at 5 Devonshire Place. On any view it is unarguable that the existence of proceedings came to the attention of the defendant on 4th October 2019 and it would have been clear that this was a court claim and the Particulars of Claim made it clear that it was against her regarding her medical treatment of the claimant..
The defendant’s evidence is equivocal because she appears to suggest that it was not until much later that the proceedings came to her attention.
Any assertion that the defendant was not validly served is unsupportable and it is not claimed on her behalf that she was not validly served.
On 22nd October 2019, Ms Sukhdev Gill, the claimant’s solicitor, wrote to the defendant at 5 Devonshire Place, acknowledged receipt of email of 4th October 2019 from the defendant’s PA, informed the defendant that she had not heard from insurers or legal representatives for her and had written to Court to request judgment is entered as she had not received an acknowledgment or Defence to Claim (page 121 bundle). The defendant therefore knew that the application for judgment in default was in the process of being made.
On 12th November 2019, the defendant’s PA sent an email attaching a letter dated 8th November 2019, from the defendant (Page 129 bundle). This was in response to the letter of 22nd October 2019. She asserted that she had responded, that the MDU was aware, requested C’s solicitors to contact the MDU directly and stated “..I am sorry that you have gone ahead with the so-called Entry to Judgment when already I sent you correspondence. When I looked at the out-of-office that you kindly sent to me it stated you were away on leave.”
The order of 16th October 2019 made by Deputy District Judge Thomas entered judgment for the claimant . It appears that due to difficulties with the court the order was not sealed until 3rtd April 2020.
As the claim related to a mesh procedure , on 30th April 2020, as this claim pertains to a vaginal mesh procedure, a request was made to the Court in correspondence on 30.04.20 that the matter be transferred over to the High Court of Justice, Queens Bench Division.
The claim was listed for further consideration by the County Court on 8th February 2021. In a letter dated 5th February 2021, (page 63 of bundle) the Defendant requested an adjournment of 6 months of the hearing of 8th February 2021. She indicated that she did not know about the claim – that the correct address for service was 5 Devonshire Place . She also stated that her husband was critically ill ; her mother was unwell and that she requested an adjournment of 6 months. On 8th February 2021, DJ Wright sitting at Maidstone County Court, rejected that request, and upon reading the Statement of 8th August 2020 prepared by the Claimant’s Solicitor and the letter from the defendant dated 5th February 2021, the Court being satisfied that the proceedings had been properly served gave directions which set out that judgment having already being entered , all subsequent directions related to causation and quantum evidence only and transferred the Claim to the High Court. (Page 133 bundle, Order sealed on 8th March 2021). The letter of 5th February also asserted that the defendant had been trying to find out information about the Claim since 2019.
If the defendant was trying to say that she did not know about the claim, it was clear that she was well aware of the claim from at least October 2019.
On 16th June 2021, the defendant wrote to the court Manager at Maidstone County Court acknowledging receipt of the Order of 8th March 2021, (page 68 of bundle). She asserted that she was not aware of the details of the Claim and stated that this Claim will have to go to the Medical Defence Union. This is somewhat inconsistent with the fact that the Letter of Claim (July 2019) and the documents served in September 2019 that were acknowledged by her PA as being received on 4th October 2019 set out the Claim. It is also bizarre to request the court to get the claimant to write to her about the claim.
On 24th August 2021, the Claimant’s solicitors wrote to the Defendant at 5 Devonshire Place and also sent her via email a letter requesting again that she should urgently liaise with her indemnity provider, the MDU, and requesting that they make contact with her directly as soon as possible ahead of the Costs Case Management Hearing that had been listed before Master Cook on 13th December 2021. A copy of this letter and the enclosures were also emailed to the claims@themducom.
On 12th November 2021, the Defendant replied from the 5 Devonshire Place address by way of a 7-page letter dated 7th November 2021 (bundle page 71). The letter contains a number of bizarre assertions. The assertion that the claimant’s solicitors had asked her to produce a report in relation to the claim. It refers to the claim being brought in a Magistrates Court in Kent and that the Magistrates Court is not the correct court to bring these proceedings. It is difficult to understand how she reached this understanding as she has not produced any detail. She had received the County Court proceedings and had corresponded with the County Court.
She set out in that letter her view of the claimant’s medical history and whilst there are a number of issues raised none of these issues address the issues of negligence raised in the Particulars of Claim nor does it address the case on causation. She did summarise her response at end of letter (pages 76 and 77 of bundle):
- ” Buckingham presented with complex pelvic floor dysfunction in association with a pelvic cyst following treatment for a trigeminal schwannoma, which left residual impact on the brain. The neurological impact of the brain surgery is a contributory factor to her pelvic floor symptoms at presentation in 2008. Thus, her care was shared with a multi-disciplinary team. Thus, should liability be presumed then it should also be shared amongst the entire team.
- Your expert stated that Mrs. Buckingham should have had a history of prolapse taken – it was as stated in my letters in 2009-2010. Thus, his comment is refuted. To suggest it was not done is not proven and is misleading to the court to suggest so.
- Your expert stated that physiotherapy should have been offered as primary treatment. However, this is inappropriate in Type IV vaginal wall prolapse – physiotherapy has no role even as an adjunct to surgery. Thus, his comment is refuted.
The evidence clinically and in the literature supports surgery as the definitive treatment. Furthermore, Mrs. Buckingham was counselled and consented to the procedures. To suggest physiotherapy was a viable option of definitive treatment for Mrs. Buckingham is misleading to the court.
- Your expert appears to have made the liability personal. This shows bias and lack of transparency.
It is incumbent on the medical expert and the legal team to be transparent and to ensure lack of bias. This is a pre-requisite for all court hearings, and it would be as well that this finding is shared with the court.
Please note we have sent you notes, correspondence and reports to you and your team. We have done so in good faith and have not charged you for our services. This will now be addressed.”
On 16th December 2021 at the CCMC before Master Cook the defendant was represented by solicitors and Counsel appeared. Solicitors and Counsel had recently come on the scene. The Court enquired as to whether any application to set aside the judgment in default was to be made and the Court informed the representatives for the defendant that if an application was to be made then it needed to be made promptly. Directions were given for the matter to be set down for an assessment of damages hearing. The Court gave the usual directions giving the parties permission to reply on independent evidence from a gynaecologist, a psychologist and a colorectal surgeon. A trial window was set to open on 1st October 2022 and close on 21st December 2022 and the matter is now set down for hearing on 7th December, for 2 days in a 3 day trial window.
That is the background to the Claim and the current state of proceedings.
The application by the defendant to set aside judgment was not made until 1st February 2022- 2 months after the CCMC hearing. In her witness statement of 31st January 2022 the defendant makes the point that the proceedings were sent to the wrong address on numerous occasions; that she was baffled as to what the claim was about and that she has reasonable prospects of defending the claim.
In her statement she also points out that she was on bereavement leave in March 2021 after the death of her husband and that on her return to work she had a surgical backlog and was doing 4 operating lists per week. She also states that in July August 2021 she was pursuing the MDU regarding its stance in relation to this claim and that she was also under pressure. She states that she had no legal representation until 10th December 2021 and that given all the circumstances the application to set aside judgment was made promptly- given the background and her personal circumstances.
Her personal difficulties are set out at paragraphs 7 to 13 of her statement.
- CPR 13.3 deals with the discretionary power to set aside or vary a judgment in default. (It is accepted on behalf of the Defendant that this is not a case where there has not been valid service and therefore CPR 13.2 does not apply)
CPR 13.3
(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.
(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order).
The Court must apply the principles set out in the overriding objective and the court has to be cogniscent of the Denton principles
In relation to whether there is a real prospect of defending the Claim-
- It does not appear that there is any indication of independent advice or a report that supports the contention that D. adequately consented the claimant
- There is no draft defence supported by a Statement of Truth setting out the nature and extent of D’s case re breach of duty or causation
Mr. Perfect valiantly claims that she has to some extent already done this in her report of October 2019. That report does not grapple with the nature of the claim against the defendant. It is said that the defendant can and would obtain expert report in support of her defence. It is also stated that “the nature of this litigation – vaginal mesh litigation, involving allegations of consent – also strongly points toward the exercise of discretion. There are a great many such claims. The Court well knows that these are difficult claims, and where there are hotly contested issues” This does not carry any particular weight. I have set many of these cases down for trial and I am equally aware that many of these claims do not reach trial.
It is said that many of these claims involve a consideration of what was said and when it was said and who said what to whom. The difficulty is that D. has not fully articulated a defence to the allegations made nor has causation been dealt with.
I have to conclude that D. has no real prospect of defending the Claim and given the length of time that D has known about the Claim – October 2019 I would expect some independent medical advice or at least a draft defence supported by a Statement of Truth.
If I were to be wrong in reaching that conclusion, I would have no hesitation in concluding that this application was not made promptly.
She is a professional consultant surgeon operating on members of the public. ,She operates in an established clinic and has a PA. I cannot accept that on receipt of the Letter of Claim or the Particulars of Claim that she did not know what the proceedings were about. I have every sympathy for her personal circumstances – her husband suffered with Covid and died and had close family members who were ill. However, when something as serious as litigation it is easy to give instructions , easy to respond , explain and to ask for time and if she could not do it she had a PA to do it.
At the CCMC that took place in December 2021 I emphasised the need to act promptly There are a number of cases cited in the notes to CPR 13.3 in The White Book Hart Investments Ltd v Fidler [2006] EWHC 2857 (TCC) the judge concluded that a delay of 59 days was “very much at the outer edge of what could possibly be acceptable” whilst in other cases , less than this was considered too long. In the instant case the application was well outside the generous ambit of what is considered a prompt application.
The application to set aside judgment is a request for relief from sanction and involves a consideration of the criteria set out in the case of Denton v TH White Ltd [2014] EWCA Civ 906:
Is the breach significant and serious. The failure to respond to the Claim is a serious and significant breach of the rules of civil procedure.
Whether, there is good reason for the breach- contrary to the submissions made, there is no sensible conclusion that confusion arose over service. We know that the proceedings certainly came to her attention in October 2019 but even before that the address at 12 Devonshire Street was an address for the Defendant on the public record and if she was not there then she should have made arrangements for collection of her post from that address.
I reject the contention that there was confusion and delay in correspondence with the Court service and in correspondence with the Claimant. The Defendant knew the identity of the Court and the identity of the Claimant’s solicitors. She knew that judgment had been applied for in October 2019. In the circumstances the claimant is right to cast doubt on some of the contentions made by the defendant.
I reject the submission that the defendant was baffled by correspondence from a Magistrates Court. None of this serves to explain or provide good reason for the breach of the civil procedure rules by the defendant.
I have every sympathy for her personal circumstances and for her professional situation. She is, however, a professional person carrying out professional duties and has the support of a PA.
The best that Mr. Perfect can do is to assert that “The Claimant would receive a windfall.”This will always be the case where the Court arrives at the conclusion that the breach of the rules is so serious; there is no good reason for the breach and in all the circumstances judgment must stand.
There has to come a time when a judgment remains a judgment and is of particular relevance in this claim.
I therefore dismiss the application by the defendant to set aside judgment in default.