Defence struck out following breach, Jonathan Hand QC successful in appeal

Jonathan Hand QC successfully represented Joan Kember in the High Court in Joan Kember (as Personal Representative of the Estate of Leonard Kember, Deceased, and on behalf of herself and all other dependants) v (1) Croydon Health Services NHS Trust (2) King’s College Hospital NHS Foundation Trust [2019] EWHC 2297. The case was an appeal against the decision not to grant an extension of time or relief from sanctions following late service of the Defendants’ Defence to a clinical negligence claim bought by Joan Kember. The clinical negligence claim arose following the death of her husband after a series of alleged failures in the care provided by the Defendants leading to a fatal delay in coronary artery bypass surgery. It was submitted that absent these failings, successful surgery would have been performed before the time of his death. The Defendants had sought several extensions of time for serving their Defence which had been agreed by the Claimant and granted by the Court. Nonetheless, the Defendants still failed to serve their defence by the agreed extension and were 5.5 weeks late. The Defendants denied both breach of duty and causation in their Defence and made applications for (among other things) an extension of time for serving the Defence and for relief from sanctions. This application was heard by Master Gidden and dismissed. Applying the three-stage test in Denton v TH White Ltd [2014] EWCA Civ 906 the Master found that the Defendants’ default in serving their Defence was serious and significant, that there was no good reason for the default, and that when considering all the circumstances the relevant application was the application for relief from sanctions which had not been made promptly.

The Defendants appealed, on the basis that an application for relief from sanctions was not required, since the order granting the final agreed extension for serving the Defence did not expressly provide a sanction for non-compliance. The High Court dismissed the appeal, finding that firstly, there was no need for the Defendants to make an application for relief from sanctions given that neither CPR rule 15.4 nor the Court’s orders extending time for service of the Defence prescribed a sanction in the event of default following Salford Estates (No. 2) Limited v Altomart [2014] EWCA Civ 1408.

Secondly, whilst the Master was therefore in error in proceeding on the basis that an application for relief from sanctions was required, this was an application for an extension of time made after the expiry of the relevant period and the three-stage test in Denton still applied.

The question on the appeal was thus whether the error in approaching the third stage of the Denton test by treating the relevant application as the application for relief from sanctions (as opposed to the application for an extension of time for serving the Defence) was a material misdirection such that his decision could not stand. Having considered the relevant circumstances addressed by the Master, including the Defendants’ wrong assumption that a yet further extension would be “indulged” which was pivotal to the Master’s decision on this point, the Master’s misdirection was ultimately not material.

If, though, Mrs. Justice Lambert was wrong in her decision about this and the Master’s decision should be set aside, it was agreed that she should go on to exercise her discretion afresh, rather than remitting it back to the Master; and in these circumstances she would also refuse the appeal. Amongst other things, when considering the third stage of the Denton test, the application for an extension of time for service of the Defence had not in fact been made promptly. The Defendants’ initial application for an extension of time had been made by fax; and filing an application which attracts a fee by fax is permissible in only exceptional and rare circumstances of unavoidable emergency, which had not been the case here.

Jonathan Hand QC was instructed by McMillan Williams for the Respondent/Claimant. Jonathan specialises in Clinical Negligence and Personal Injury work. Should you wish to instruct him, please contact Paul Barton, Practice Director or Mark Gardner, Practice Manager.

News 12 Sep, 2019