Caroline Bailey v Monica Bijlani & Anor.

On an application to set aside default judgment under CPR 13.3, the court must consider whether the defendant has a real prospect of successfully defending the claim or whether there is some other good reason to permit a defence. The discretion is governed by the overriding objective and is directed to avoiding injustice, rather than punishing procedural default.

The court must not conduct a mini-trial. In a clinical negligence claim, reasonably expected expert evidence on breach and causation may be material when assessing prospects of success. Promptness, seriousness of the breach, the explanation for delay, compliance with orders, prejudice, finality, expense and the ability of the parties to participate fully are relevant. Findings of a professional regulator are non-binding and inadmissible as findings of fact in the subsequent civil proceedings.

The claimant brought a claim alleging negligent dental treatment by the first defendant. The second defendant, the credit-card provider, accepted potential joint and several liability for losses proved against the first defendant and sought contribution or indemnity in separate Part 20 proceedings.

Default judgment was entered against the first defendant after she failed to file a defence within an agreed extension. She applied to set it aside, relying on a detailed draft defence, proposed expert evidence, difficulties with former legal representatives and concerns about her mental health and capacity during the relevant period. The claimant relied on delay, repeated defaults and findings made by the General Dental Council.

The central questions were whether the first defendant had a real prospect of successfully defending the claim, whether there was another good reason to allow the defence, and how the overriding objective affected the exercise of discretion.

1. Default judgment set aside. The application was granted under CPR 13.3. The first defendant had, by a narrow margin, shown a realistic prospect of successfully defending the claim, and there were other very good reasons why she should be permitted to defend it.
2. The court applied the summary-judgment threshold by analogy. The defendant bears the burden under CPR 13.3, but the court must avoid a mini-trial and must allow for facts and expert evidence that may emerge at disclosure or trial. The draft defence raised live issues concerning consent, the claimant’s instructions, the standard of dental treatment, breach and causation.
3. In clinical negligence litigation, expert evidence on both the acceptable professional standard and causation is critically important. The court could not fairly assess the defence before receiving the expert evidence said to be available at trial. The first defendant’s case was not established merely by assertion, but it crossed the threshold when considered with the proposed evidence.
4. The GDC findings did not determine the civil claim. They were non-binding and inadmissible as findings in the subsequent proceedings under Hollington v Hewthorn. The discontinuance of the GDC appeal was not persuasive evidence that the first defendant lacked a real prospect of success.
5. The court considered the overriding objective, including participation, best evidence, expense, finality, compliance, delay and prejudice. The default was serious, but the final period of delay was less than one week and followed efforts to obtain a defence from a lawyer. The judgment did not finally resolve the claim because causation and loss still required determination.
6. The discretion was not punitive. The first defendant’s alleged capacity difficulties, the serious conflicts of evidence and the detailed nature of the proposed defence made it unjust to prevent her from giving evidence and defending the claim. The court warned that further laxity in progressing the defence would not be tolerated.