Roger Mann (in his Own Right and as Executor of the Estate of Mrs Denise Mann) v Towarzystwo Ubezpieczen Inter Polska SA
| Jurisdiction | England & Wales |
| Judge | Master Thornett |
| Judgment Date | 01 November 2021 |
| Neutral Citation | [2021] EWHC 2913 (QB) |
| Docket Number | Case No: QB-2016-005735 |
| Court | Queen's Bench Division |
[2021] EWHC 2913 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2A 2LL
Master Thornett
Case No: QB-2016-005735
Ms S Crowther QC and Miss Akram (instructed by Irwin Mitchell) appeared on behalf of the Claimants
Mr F Kwiatkowski (instructed by Ardens Solicitors) appeared on behalf of the First Defendant
Mr Richards (Solicitor, of Weightmans) appeared on behalf of the Second and Third Defendants
Hearing dates: 11 November 2019, 29 July 2021 and 5 October 2021
This is the reserved judgment on the First Defendant's Application dated 14 April 2019 [“the April 2019 Application”] to set aside the default judgment against it entered on 31 August 2017. The Claim Form was issued on 20 September 2016. This decision follows hearings on 11 November 2019, 29 July 2021 and finally on 5 October 2021. As those dates alone illustrate, the April 2019 Application has seen an unusually and undesirably protracted period before resolution. For the reasons explored in this judgment, the principal reason for this has been a continuing blend of delay and inappropriate procedure adopted by the First Defendant rather than unavoidable delays within the court system, with or without the overlay of the Covid Pandemic.
The First Defendant has produced much documentation and numerous authorities. It leads to essentially polarised positions from respectively the First Defendant and the Claimants 1. The First Defendant maintains there had been fundamental failure in the service of process upon it in May 2017, all such that the judgment either should be treated as irregular and set aside automatically or alternatively that it be set aside as a matter of discretion. Its arguments in support are numerous but mainly focus upon the nature and sufficiency of documents it admits were physically served upon it (rather than, as in some Part 13 Applications, denial that there had been any awareness of the documentation until after default judgment). Conversely, the Claimants maintains that, taken overall, this is actually a very simple case where despite the detail of the First Defendant's submissions, there is nothing really in them and the judgment should be preserved.
The first hearing was on 11 November 2019. It had been listed direction for a half day hearing, this being in my experience ordinarily sufficient for this type of application. The hearing went part heard because the First Defendant had not completed its submissions. At the end of that hearing, however, I had already formulated the view that regardless of what other submissions the First Defendant relied upon, it was clear and I was so satisfied that the First Defendant had not acted promptly in issuing its April 2019 Application. This judgment amplifies the background and re-affirms that decision.
Background to the claim and its progress before the First Defendant's appearance in the proceedings
a. Mrs Denise Mann received cosmetic surgery procedures in Poland in September 2013 which are alleged to have been negligent. The procedures were carried out by the Third Defendant at the premises of the Second Defendant, a private hospital providing cosmetic surgery services. The First Defendant is the Second Defendant's public liability insurer. Mrs Mann subsequently died on 8 February 2016. A claim continues on behalf of her estate for losses incurred during her lifetime owing to the surgery.
b. It is clear that the Claimants' firm had corresponded about the claim with the First Defendant over a lengthy period before the default judgment. This is not denied by the First Defendant, although it seeks to place that correspondence in a mitigating context.
c. In March 2017, the Claimants had sought to extend time for service of the Claim Form as by then issued. In a supporting Witness Statement dated 15 March 2017 the Claimants' solicitor, Ms Christina Wolfe, referred to correspondence to the Defendants from November 2014 onwards urging the Defendants to nominate solicitors (preferably within this jurisdiction) because no such indication or appointment had been made. Similar correspondence had been sent in December 2016. She confirmed that owing to anticipated delay in processing of the documents for formal service in Poland, she had sent to the Defendants by Airmail the detailed Letter of Claim, a copy of the Claim Form and its supporting documentation, all in both English and Polish.
d. Copy documentation annexed to this statement illustrated the materials the Claimants sought to be served formally. The material included a letter to the First Defendant dated 29 September 2016 referring to an intention to “have the [annexed court documents] translated into Polish in order to formally effect service in accordance with the rules”. That letter noted that the “significant costs associated with translating and serving the required documents in Poland” would be avoided if solicitors within this jurisdiction were appointed. There is further a letter dated 20 February 2017 to the First Defendant that referred to the Claimants' solicitors letter dated 21 December 2016 and notified that, in the absence of a response about the nomination of solicitors in England and Wales, the Claimants was preparing to serve proceedings directly upon the First Defendant in Poland.
e. An extension was granted by Order sealed 24 April 2017 and the Claimants initiated the process of formal service in Poland.
f. The Claimants' case is that the same pack of documentation featured in the March 2017 Application was served by the Polish Court, via the ordinary request from the Foreign Service Department of the Queen's Bench Division [“QBFP”] and been certified by the Polish Court as served upon all three defendants.
g. In addition to initiating formal service, on 17 May 2017, by both Airmail and e-mail, the Claimants' solicitors sent to the First Defendant a copy of the 24 April 2017 sealed Order. The form of that Order was in both English and Polish, supported by a Certificate of translation. The covering letter requested (as had previous correspondence) the First Defendant to acknowledge receipt.
h. Ms Wolfe confirms that that First Defendant took no steps either to challenge the April 2017 Order or to enquire about it. This is despite, as I find, it plainly constituting clear notification to the First Defendant that proceedings had not only been issued in this jurisdiction but were now subject to directions from this court, not in Poland.
i. Despite this sequence of non-response, Ms Wolfe's confirms how a letter of “full” denial from the First Defendant dated 22 August 2016 had previously been received. I find this a very significant event in the context of a party that chose to ignore subsequent correspondence and thereafter formal court documents, the latter substantially on the basis that they were incomplete and so, by implication, unintelligible. The First Defendant has never suggested that the antecedent correspondence and documentation from the Claimants' firm had proved in any way confusing or incomprehensible, in either its English or Polish translations.
The submission of a “full” denial pre-issue therefore implies the First Defendant had entirely understood what was going on and concluded it would be denying liability. If this is wrong or unfair, then the only logical counter-interpretation is that the First Defendant had simply not read the documentation sent by the Claimants' firm but improvised a response by itself.
The provision of a “full denial” nine months or so before service also is central to the issue of the First Defendant's considerable delay: delay in the way it approached correctly to issue and present its Application, the form of the Application once issued (as was then sought to be amended) and after that the elaboration of its proposed defence. Put shortly, the First Defendant has had a long period of time commencing in August 2016 in which to realise that its “full-denial” was by no means closure of the proposed claim and so both to protect and to assert its position anew. The nature of service of proceedings in May 2017, as challenged by the First Defendant, is therefore but part of a larger picture.
j. Certified service on the First Defendant took place on 17 May 2017. A typical EU pro-forma certificate of service bears both the seal of the Polish Court and also, significantly, a signed receipt stamp by “SSR Malgorzata Klonowska”, an employee of the First Defendant confirming receipt.
k. The Second and Third Defendants had also been served and neither of them have taken issue with service. However, they each had sought to dispute jurisdiction. Their Application was dismissed by Master Brown at a hearing on 14 July 2017, the Order following which recites satisfaction that the First Defendant also had had notice of the hearing but had not appeared and so was not represented.
l. The absence of formal appearance by the First Defendant at the July 2017 hearing, assuming there had been valid service of the Claim Form on the First Defendant, is open to interpretation. A strong inference is that any insured [the Second Defendant] would have informed its insurer [the First Defendant] of what was going on and that it was represented by Solicitors as instructed within this jurisdiction. Indeed, the ordinary practice of insurers at least in this jurisdiction would be to expect such notification and appointment, because a failure to do so might jeopardise their cover 2. Accordingly, a further inference is that the First Defendant knew about the judgment and Application but had chosen not to become procedurally...
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Dr Sanjay Pitalia v NHS Commissioning Board
...set out above. 66 I have also had regard to the Respondent's arguments that cases such as Mann v Towarzystwo Ubezpieczen Inter Polska SA [2021] EWHC 2913 show that the court can permit challenges to jurisdiction other than by means of application under CPR 11.1. As a general proposition, I ......