Mrs Caroline Bailey v Dr Monica Bijlani
| Jurisdiction | England & Wales |
| Judge | Master Stevens |
| Judgment Date | 11 November 2022 |
| Neutral Citation | [2022] EWHC 2821 (KB) |
| Docket Number | Case No: QB-2021-002009 |
| Court | King's Bench Division |
[2022] EWHC 2821 (KB)
Master Stevens
Case No: QB-2021-002009
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Rimmer (instructed by Devonshires Solicitors LLP) for the Claimant
Simon Butler (instructed by — BSG Solicitors LLP) for the First Defendant
Hearing dates: 21 st June 2022
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
This is my judgment on the first defendant's applications to set aside judgment entered on 21 st February 2022 (sealed on 14 th March 2022) in default of filing a defence pursuant to CPR 12. Judgment was entered of the courts own volition, although there was an outstanding application lodged by the claimant at the time, within unprocessed filings on the court CE system, which were not visible to me when ordering the default judgment.
The first defendant's first application first came before me at a hearing on 13th April 2022, but there was insufficient time to conclude matters on that occasion. The first defendant had arrived late for the hearing and been unrepresented, and a number of key documents were missing which I considered I needed to review before making a final determination. I therefore made an unless order on that occasion as follows:
(1) Unless the First Defendant complies with the remaining paragraphs of this order then the default judgement already entered against the First Defendant in favour of the Claimant with damages to be assessed shall not be set aside.
(2) The First Defendant shall, within two days of the service of this Order:
(i) File and serve a signed copy of her Defence on the Claimant and the Second Defendant, with a further signed copy to be filed with the Court:
(3) the First Defendant shall within 14 days of the service of this Order:
(i) File and serve an application to the Court supported by a sworn witness statement exhibiting copy documents to demonstrate:
(a) that the First Defendant instructed and paid lawyers to assist her in the defence of this claim, with dates of instruction and documents demonstrating the actions taken by those lawyers to assist her (redacted if necessary);
(b) the current status of the First Defendant's dispute with the General Dental Council with documents to evidence as to what was decided by the General Dental Council in respect of the dental treatment provided by the First Defendant to the Claimant (the subject of this claim), whether an appeal has been lodged against any such decision and the current status of that appeal with information as to any key dates currently known for the future progression of that appeal.
(ii) make an interim payment in respect of the Claimant's costs of today's application in the sum of £4000. The full costs payable by the First Defendant to the Claimant in respect of today's application shall be summarily assessed at the next hearing.
(4) the time periods set out in paragraphs 2 and 3 above shall commence from the date the Master approves this Order and notifies the parties of that approval by e-mail.
(5) This matters shall be re listed for a further hearing with a time estimate of 1.5 hours on the first available date after the First Defendant has submitted the evidence set out in paragraph 2 above
Following this order, which was sealed on 14 th April 2022, in respect of paragraph 2 the first defendant served signed copies of her defence on 20 th April 2022 (i.e. out of time). In respect of paragraph 3 of the order she served a draft witness statement on the final day for compliance with that part of the unless order (but lacking the exhibits referred to), and also the first defendant said that she was going to transfer funds in respect of interim costs that same day, which was the last day before the bank holiday weekend. In fact the claimant's solicitor was then served with the complete statement on Tuesday, 3rd May (i.e. out of time), and that same day they received the interim costs into their account. The exhibits to the witness statement were said by the claimant not to include all of the documents which I had specified in my previous order in respect of her legal representative's retainer and the General Dental Council (“GDC”) proceedings. However there were some documents pertaining to those matters in the exhibits, with the claimant supplying the balance in the hearing bundle.
On 3 rd May 2022 the first defendant also served a fresh application notice “to set aside the default judgment and for relief from sanctions if necessary” and BSG solicitors commenced communicating on behalf of the first defendant with a Notice of Acting following shortly thereafter.
At the restored hearing of the first application on 21 st June 2022, when the second application was also considered, counsel for the first defendant did not make any initial submissions seeking relief from sanctions in respect of non-compliance with my order as he said he had not been instructed to do so. Indeed his skeleton argument contained a submission at paragraph 36 that “D has complied with the Order made by Master Stevens on 13 April 2022”. After I had suggested to counsel that he might wish to consider the matter in a short adjournment with his client, the application was duly made and granted. I emphasised in my determination that the court's patience was being sorely tested through persistent defaults by the first defendant, but in all of the circumstances on this occasion, I considered it would not be just to disallow the first defendant her opportunity to make final submissions about setting aside the default judgment. I am not setting out all the submissions on the relief point, nor my findings under the Denton principles, in this judgment as I do not consider it necessary to do so, but I do consider it important to include this brief record about the apparent lack of awareness of the need for relief to be properly dealt with, in case there are any further defaults in the future.
Following relief from sanctions, the first defendant's application proceeded with the benefit of a 483 page bundle and written skeleton arguments from both parties counsel.
I had been advised in advance that the second defendant would be taking no part in the hearing with a view to the saving of costs. That defendant was the credit card provider for the claimant, and their credit facility was the means by which the dental services, the subject of this dispute, were paid for. They accept that they will be jointly and severally liable to the claimant for losses proved against the first defendant but seek an indemnity and/or contribution from the first defendant in Part 20 proceedings which have also been issued.
BACKGROUND TO THE CLAIM
The claim concerns allegedly negligent dental treatment given by the first defendant to the claimant, a non-practising midwife who worked in hospitality at the time, on a private patient basis, over the course of several months in 2018. The first defendant has a lengthy practising history from 1991, apparently without similar incident until December 2016 when the first of 6 patients' allegations, as subsequently reported to the GDC, commenced. The GDC records do however reference a warning having been given by their Investigating Committee in August 2015 concerning clinical concerns of one patient. The claimant in these proceedings had had a dental bridge fitted to her front lower teeth for about 25 years during which time it had been trouble free. However in 2018 her NHS dentist said she should consider having the bridge replaced as it was old, with difficulties of cleaning and a risk of infection. The NHS dentist recommended an implant but explained these were not available on the NHS. The claimant approached the first defendant who advised that she could remove the bridge and thereafter put an implant into the site of missing tooth 41. On the same day as the initial consultation with the first defendant, treatment commenced and the bridge was removed over the course of several hours. It is alleged that no necessary preparatory steps were taken in advance. At the second appointment the implant was to be placed in situ but again, it is alleged, there were no appropriate or adequate x-rays or scans taken. The treatment was said to be painful and lasted for several hours. After this treatment the claimant experienced severe pain. The first defendant said that there was no infection or problem with the implant but that root canal treatment could help by removing nerves from tooth 31 and tooth 42. This advice was accepted and the root canal treatment commenced on the day of this consultation. Afterwards ongoing pain was experienced and infection was diagnosed. Subsequently a different dental practice diagnosed that the implant had been incorrectly angulated and would need to be removed. The claimant was referred to Addenbrooke's Hospital where she was prescribed oral morphine for the pain. Subsequently 10 or 11 days of inpatient treatment ensued for abdominal symptoms (ischaemic colitis) which the claimant was told was likely caused by the high level of anti-inflammatory drugs used to assist with her dental pain relief. Following her discharge, the claimant was examined by a maxillofacial consultant at Addenbrooke's who removed the implant and it was noted that tooth 31 had suffered damage said to be caused by incorrect placement of the implant which could not be restored, such that it had to be extracted. The consultant also identified that tooth 42 had an inadequate root filling which could not be restored and had to be extracted on a later date. A...
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