Brayshaw v Partners Of Apsley Surgery & Anor

A judgment entered after proceedings were served at an address which the claimant knew the defendant had left is irregular where reasonable steps under Part 6.9 of the Civil Procedure Rules 1998 were not taken to ascertain a current address. Reasonable investigation may require an application to the court for disclosure of contact details held by a third party. An irregular judgment must be set aside as against the unserved defendant. If service was valid, CPR 39.3 requires prompt action, a good reason for non-attendance and a reasonable prospect of success. The court may set aside only the affected part of a judgment where severance is fair and appropriate.

The claimant had obtained judgment following a trial against the partners of Apsley Surgery and Thomas O’Brien. Mr O’Brien applied promptly to set aside the judgment, stating that he had not known of the proceedings, the trial or the order until they were reported in the local press.

The claimant’s solicitors had used investigators but had not applied for an order requiring the General Medical Council to disclose contact details held in connection with earlier disciplinary proceedings. The issues were whether service was valid, whether the judgment could be set aside under CPR 39.3 if service was valid, and whether any setting aside should extend to the judgment in favour of the first defendants.

1. Irregular service. The claimant had not taken reasonable steps under Part 6.9 of the Civil Procedure Rules 1998 to ascertain Mr O’Brien’s address for service. The claimant knew of the General Medical Council’s earlier involvement and could have applied for disclosure of contact details for the limited purpose of serving the proceedings. Investigation by solicitors and professional investigators was reasonable but insufficient in those circumstances.
2. Service at an address which the claimant knew Mr O’Brien had left did not cure the failure. The judgment against him was therefore irregular, and he had an absolute right to have it set aside.
3. Alternative CPR 39.3 analysis. Had service been valid, Mr O’Brien had acted promptly, but he had not shown a good reason for failing to attend within the meaning of CPR 39.3(5)(b), because the court’s approach to ignorance of a hearing assumes that the party knew of the proceedings and was expected to monitor them. In any event, he had no reasonable prospect of success under CPR 39.3(5)(c), since the evidence disclosed no basis for disturbing the trial findings of negligence.
4. Extent of relief. The court had power to set aside only part of the judgment. It would be unfair to require the first defendants to face a retrial because they had been properly served, had fully participated, and had obtained judgment in their favour. The judgment was therefore set aside only so far as it related to Mr O’Brien.

The application concerned the High Court judgment entered after the earlier trial. No appellate history is stated in the judgment.