Kerry Lucas v Dr Osita Oranugo & Anor

On an application to set aside regular default judgment, the court must first decide whether the defence has a real prospect of success or whether there is another good reason to set aside the judgment. Only then does it consider promptness. In a clinical negligence case, the court must apply the Bolam/Bolitho test and should exercise caution before summarily resolving incomplete and conflicting expert evidence. A mini-trial is impermissible where further disclosure, expert reports, meetings and joint statements may materially affect the evidence. Promptness is significant but is not a threshold condition. The court must then apply the three-stage Denton test, weighing all the circumstances, including the prejudice caused by preventing a defence with a real prospect of success.

The defendants appealed against the decision of Mr Recorder Neville dated 20 February 2025, which dismissed their applications to set aside regular default judgments and obtain relief from sanctions.

The underlying claim alleged that Dr Oranugo negligently failed to offer a neurology referral when the claimant attended with facial numbness in March 2017. The defendants relied on incomplete expert evidence supporting a reasonable decision to monitor the symptoms, while the claimant relied on expert evidence supporting referral.

The appeal concerned whether the Recorder had wrongly assessed the merits of the proposed defences, whether the applications were made promptly, and whether relief should be granted under the relevant procedural tests.

1. Appeal allowed. The defendants’ applications should be granted so that they could defend the clinical negligence claim.
2. The question whether a defence has a real prospect of success under CPR 13.3 is an evaluative judgment, not an exercise of discretion. The Recorder had inadequately considered the incomplete state of the expert evidence and the possibility that further disclosure, final reports, expert meetings and joint statements would develop or alter the evidence.
3. The Recorder had also failed adequately to apply the Bolam/Bolitho test. He did not expressly consider whether the alleged conduct accorded with the practice of a body of responsible practitioners. The competing expert evidence required consideration of Dr Isaac’s opinion that many responsible general practitioners would not have referred the claimant.
4. The Recorder treated the NICE guideline inconsistently. He treated it as undermining Dr Isaac’s opinion because it post-dated the events, but as corroborating Dr Kearsley’s opinion despite the same timing issue. He also failed to address the primary question whether the single symptom of numbness was suggestive of multiple sclerosis.
5. By concluding that only Dr Kearsley’s opinion could be correct, the Recorder effectively conducted a mini-trial at a stage when the expert evidence was incomplete. The defendants’ proposed defences therefore had real prospects of success.
6. The applications were not made promptly. The defendants remained responsible for the delay between entry of judgment in October 2023 and discovery of the claim on 19 September 2024. Promptness was nevertheless not a threshold condition, and its absence did not alone justify refusal of relief.
7. The first two stages of the Denton test were satisfied against the defendants: the breach was serious and significant and there was no good explanation. At the third stage, however, the substantial prejudice to the defendants of losing the opportunity to defend a claim they had a real prospect of defeating outweighed the claimant’s prejudice. The balance therefore fell in favour of setting aside the judgments.

• High Court (King's Bench Division): Appeal from the decision of Mr Recorder Neville dated 20 February 2025. The appeal was allowed and the defendants were permitted to defend the claim.