PXC v AB College and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 3571 (KB) |
| Year | 2022 |
| Court | King's Bench Division |
2022 May 5; 6
Practice - Judgment in default - Application to set aside - Defendant applying to set aside default judgment nine months after judgment entered - Whether set aside application constituting application for relief from sanctions - Appropriate approach to question of promptitude of application -
The claimant brought a claim against the defendants, seeking over £6m in damages in respect of personal injury and loss arising from mesothelioma which he had contracted as a result of having been exposed to asbestos while working at an ice rink for which he alleged the third defendant had been responsible. Following the third defendant’s failure to file an acknowledgment of service or a defence, a default judgment was entered against it under CPR Pt 12F1. Some nine months later the third defendant applied to set aside the default judgment pursuant to CPR r 13.3, arguing that it had neither owned nor occupied the ice rink at the relevant time, that it had therefore owed no duty of care to the claimant and that, accordingly, it had a real prospect of successfully defending the claim. The claimant resisted the application, contending inter alia that an application to set aside a default judgment was an application for relief from sanctions within the meaning of CPR r 3.9.
On the application—
Held, allowing the application, that an application to set aside a default judgment pursuant to CPR r 13.3 was not an application for relief from sanctions within the meaning of CPR r 3.9 and not subject to the same principles as such an application; that the purpose of CPR r 13.3 was not to punish a party’s incompetence or lassitude but, rather, to promote justice, which included that a party which was liable in law was held to be so liable and a party which was not liable in law was not held liable; that, although CPR r 13.3(2) required the court to consider whether the application to set aside had been brought “promptly”, which would always be a factor of considerable significance, the question of delay or promptitude was not a separate test and a failure to act promptly was not in itself necessarily dispositive; that, rather, the court had to weigh all the circumstances of the case in exercising its discretion, assessing and weighing the facts individually, cumulatively and in relationship to one another; that, in considering all the circumstances, the obtaining of windfalls or litigation advantages were matters of significance which the court ought to have in mind and seek to avoid, it being difficult to envisage greater litigation advantage than complete victory on liability in a case where the claimant was not objectively entitled to recompense; that, in the present case, the court had a discretion to set aside the default judgment since, on the facts, the third defendant had a real prospect of successfully defending the claim within CPR r 13.3(1)(a); that although there had been a fundamental and inexcusable lack of promptness in making the set aside application, it would in the circumstances be unjust for the third defendant’s defence to be shut out having regard to the evident and non-fanciful chance that the third defendant was simply the wrong defendant; and that, accordingly, the default judgment would be set aside (post, paras 21–24, 32–33, 48–50, 59, 62, 77–95, 98).
The following cases are referred to in the judgment:
Attorney General of Trinidad and Tobago v Matthews
Chartwell Estate Agents Ltd v Fergies Properties SA
Cunico Marketing FZE v Daskalakis
De Ferranti v Execuzen Ltd
Denton v TH White Ltd (Practice Note)
ED&F Man Liquid Products Ltd v Patel
Evans v Bartlam [
Fern Advisers Ltd v Burford
H (Minors) (Sexual Abuse: Standard of Proof), In re [
Hussain v Birmingham City Council
Ince Gordon Dadds LLP v Mellitah Oil & Gas BV
Intesa Sanpaolo SpA v Regione Piemonte
Mitchell v News Group Newspapers Ltd (Practice Note)
Onassis v Vergottis [
Riley v Reddish LLP (unreported) 7 June 2019, Nugee J
Standard Bank plc v Agrinvest International Inc
Swain v Hillman [
Thoma v Luxembourg (Application No 38432/97) (
X v Dartford and Gravesham NHS Trust
The following additional cases were cited in argument or referred to in the skeleton arguments:
Adsett v West [
Bannister v Freemans plc
Hart Investments Ltd v Fidler
Khan v Edgbaston Holdings Ltd
R (Hysaj) v Secretary of State for the Home Department (Practice Note)
Regency Rolls Ltd v Carnall (unreported) 16 October 2000; [2000] CA Transcript No 2405,
Sayers v Clarke Walker (Practice Note)
Smith v J & M Morris (Electrical Contractors) Ltd
APPLICATION to set aside default judgment
By a claim form issued on 12 November 2020, and amended on 3 June 2021, the claimant, PXC, brought a claim against eight defendants seeking to recover more than £6m in damages for personal injury and loss arising from mesothelioma which he had contracted as a result of exposure to asbestos when, as a schoolboy, he had worked part time at an ice rink. Only two of the defendants were ultimately served with the proceedings: the first defendant, AB College, and the third defendant, Richmond upon Thames London Borough Council, which the claimant alleged had been responsible for the ice rink.
By an application notice the claimant applied for judgment in default under CPR r 12.3(1) consequent on the failure of the third defendant to file an acknowledgment of service or defence. On 9 July 2021 Master Thornett ordered that judgment be entered against the third defendant because of its default, no acknowledgment of service or defence having been served. On 11 October 2021 the claim against the first defendant was stayed. On 19 December 2021 the quantum trial for assessment of damages was fixed for 5 May 2022.
By two application notices served on the claimant on 5 May 2022, four hours before the quantum trial was due to begin, the third defendant applied for orders that the default judgment be set aside pursuant to CPR r 13.3 and the assessment of damages be adjourned. The third defendant sought to dispute liability on the basis that it had neither owned nor occupied the rink and thus had owed no duty of care to the claimant.
The facts are stated in the judgment, post, paras 3–13.
David Platt QC (instructed by
Patrick Kerr (instructed by
The first defendant was not represented.
6 May 2022. DEXTER DIAS QC delivered the following judgment.
1 This is the judgment of the court.
2 I deliver it in eight sections, as set out in the table below, to explain the court’s line of reasoning. As is evident from the case name, an anonymity order has been granted to protect the claimant and his family’s right to private and family life conferred by article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. I reduce his name, not his essence, to three letters to secure that protection, recognising that this has an inescapably dehumanising effect. However, it is necessary to achieve that legitimate aim. I have also been obliged to anonymise the name of the first defendant, the college the claimant once attended, to reduce the risk of “jigsaw” identification
Section |
Contents |
Paragraphs |
I |
Introduction |
3–10 |
II |
Facts |
11–13 |
III |
Essential issues |
14–16 |
IV |
Law(a) Core legal principles(b) Denton(c) Regione Piemonte(d) Promptitude |
17–50 |
V |
Submissions |
51–59 |
VI |
Discussion(a) Real prospects(b) Promptitude(c) Overriding objective and overall discretion |
60–87 |
VII |
Conclusion |
88–97 |
VIII |
Disposal |
98–101 |
3 Mesothelioma is an aggressive and merciless cancer.
4 It attacks the membranes of vital organs such as the lungs. Usually, it is caused by exposure to asbestos fibres or inhaling them. Medical science recognises that it is a life-threatening or life-ending disease. As far back as April 1983 the Health and Safety Executive provided guidance (EH10 Asbestos—Control Limits, Measurement of Airborne Dust Concentrations and the Assessment of Control Measures) that “a substantial amount of mesotheliomas are related to exposure to crocidolite (blue asbestos) and amosite (brown asbestos)”. And “no ‘safe level’ of exposure could be identified”.
5 This very sad case involves precisely these consequences. The claimant in the head action is PXC. He is a talented, successful and decent...
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