Towarzystwo Ubezpieczen Interpolska SA (an insurance company registered in Poland) v Roger Mann (as Executor of the Estate of Denise Mann)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Foster DBE |
| Judgment Date | 03 May 2023 |
| Neutral Citation | [2023] EWHC 1040 (KB) |
| Docket Number | Case No: QA-2022-000056 |
| Court | King's Bench Division |
[2023] EWHC 1040 (KB)
Mrs Justice Foster DBE
Case No: QA-2022-000056
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Feliks J. Kwiatkowski (instructed by Ardens Solicitors Ltd) for the Appellant
Ms Aliyah Akram (instructed by Irwin Mitchell LLP) for the Respondent
Hearing date: 20 February 2023
Approved Judgment
This judgment was handed down remotely at 3.00pm on 03 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
INTRODUCTION
This is an appeal for which permission was granted on one ground by Sir Stephen Stewart against the decision of Master Thornett refusing to set aside a judgment in default obtained by the Claimants against the First Defendant Towarzystwo Ubezpieczen Inter Polska SA (“TU”) on 31 August 2017. That ground was whether the Master's refusal to set aside judgment in default was appealably wrong, by reason of his errors concerning prospects of success of TU's defence, and in his approach to their delay.
BACKGROUND
By its Particulars of Claim (amended on 24 March 2022 pursuant to the Order of Master Thornett), the Claimant claims as widower and executor of the estate of Denise Mann. It is a claim for damages for personal injury suffered by Denise Mann as a result of negligent cosmetic surgery in Poland on around 24 September 2013. The surgery was for the removal of excess skin following previous English surgery carried out in respect of an ongoing weight loss programme involving a gastric bypass procedure.
The pleadings allege negligence and/or breach of contract and/or breach of statutory duty by the First and/or by the Second and/or the Third Defendant/s. The First Defendant insured the Second Defendant, the clinic at which the surgery took place. The Third Defendant is the surgeon who carried out the surgery.
The Claimant asserts under Polish law a direct right of action against the First Defendant as insurer of the Second Defendant pursuant to Article 18 of Rome II, alternatively a claim for damages. He sues on a contract made in England for the provision of cosmetic surgery by the Third Defendant at the premises of the Second Defendant in Poland. The Claimant's case is that the governing law of the contract was that of England and Wales and further, in respect of the Second and Third Defendants, pursuant to Article 8(1) of the recast Brussels (1) Regulation (Regulation (EU) 1215/2012 of the European Parliament and of the Council).
The Claimants' case is that following Mrs Mann's second tranche of surgery on 24 September 2013, her wounds became infected and she was admitted to hospital in the UK where over 10 days her condition remained critical. She had abscesses, a washout was required, vac drains were applied and a pump used to remove the remainder of the abscesses. She was briefly discharged then readmitted through A&E and was visited by a nurse to change the dressings on her legs and left breast until June 2014. She contracted bronchopneumonia dying on 8 February 2016. The Claimant's claim was that her injuries, and, originally, her death, were caused or contributed to by the Third Defendant for which the First Defendant and Second Defendant are liable. On receipt of further medical evidence the Claimant amended the claim to withdraw the claim for causation of death (which had been vigorously disputed in any event).
The First Defendant's application to set aside judgment under CPR 13 was made on 15 April 2019. The hearing on 11 November 2019 was part-heard into 21 July 2021 and 5 October 2021.
CHRONOLOGY
On 24 September 2013 Mrs Mann underwent the surgical procedures. There was a series of communications at an early stage including correspondence in November 2014 from the Claimant's solicitors to the Defendants urging them to nominate solicitors, preferably within the English jurisdiction. Eventually, on 22 August 2016, following correspondence from the Claimant's representatives, the First Defendant insurers sent a “ full denial” of liability to the Claimants' representatives in correspondence.
In September of 2016 the Claimants sent a letter to the First Defendant referring to their intention to have court documents (copies of which were annexed) translated into Polish in order formally to effect service in accordance with the Rules. They noted that the significant costs associated with translations could be avoided if solicitors were appointed within the English jurisdiction. There was no response.
A further letter was sent by Claimants in December 2016 and again on 20 February 2017, noting that in the absence of a response concerning the nomination of solicitors in England and Wales; the Claimants were preparing to serve proceedings directly on the First Defendant in Poland. The Defendants had been sent by email the letter of claim, a copy of the claim form and its supporting documentation all in both English and Polish.
On 15 March 2017 the Claimant's solicitor made a statement supporting an application to extend time for service of the Claim Form, referring to the November 2014 correspondence and the absence of any indication of an appointment of solicitors within the jurisdiction. The statement rehearsed the chronology above.
By Order dated 24 April 2017 an extension of time was granted and the Claimants began the process of formal service in Poland. The Foreign Process Section of the Queen's Bench Division [“QBFP”], as it then was, requested service by the Polish Court and service according to the correct procedures was duly certified as effected upon all three Defendants.
Initiation of formal service on 17 May 2017 was accompanied by both airmail and email transmission by the Claimants to the First Defendant of a copy of the Order of 24 April 2017. It requested, as previous correspondence had similarly requested, that the First Defendant acknowledge receipt. No acknowledgement was forthcoming. This was, of course, following the issue of a full denial the previous year in August 2016.
A pro-forma Certificate of Service in EU form bears the seal of the Polish Court and the signed receipt stamp by an employee of the First Defendant confirming receipt of the certified service of the First Defendant on 17 May 2017. The Second and Third Defendants were served and took no issue with it, but sought to dispute jurisdiction by an application to Master Brown which was dismissed in a hearing on 14 July 2017. The Master was satisfied the First Defendant had had notice of that hearing but declined to appear and was not represented. Master Thornett stated a strong inference was that the Second Defendant (insured by the First Defendant) would have informed its insurer of what was going on lest failure to do so could jeopardise their insurance cover. This inference applied also to the Second Defendant informing its insurer of the stages of the litigation and steps taken within it, for the same reason.
After the dismissal by Master Brown of the challenge to the jurisdiction in July 2017, there was no further response to service. Accordingly the Claimants applied for judgment in default of Acknowledgement of Service on 21 August 2017. As noted by the Master, an Acknowledgement of Service is a pre-condition to raising a jurisdiction issue under CPR 11.
The Application for judgment in default before the Master exhibited the correspondence of 15 March 2017 indicating transmission of the documents by way of informal service and also notification that they had been sent to the Polish Court for formal service. The Claimant relied upon these matters as showing that the First Defendant had been notified that proceedings had commenced and given all the documentation informally that would later be formally served. Judgment in default was obtained on 31 August 2017 but a striking feature is that there is no precise date on which the First Defendant admits knowledge of the default judgment and acceptance that it was required to act – either here or below. Mr Kwiatkowski's instructions were, he told this Court “ somewhere around October or November 2018”. The Master interpolated in his findings that the delay between even an October/November 2018 date and the eventual application to set aside on 15 April 2019 was a compelling ground to refuse to set aside judgment. It was some five months at least even on the First Defendant's case (which in the event, was rejected by the Master on consideration of other evidence).
A CCMC had been fixed for 26 March 2019 in respect of the defended claim by the Second and Third Defendants following on from the default judgment against the First Defendant. A notice of that CCMC hearing was sent to all Defendants but no response received from the First Defendant until 25 March 2019, the day before, when the First Defendant indicated it would be represented at the hearing. Mr Kwiatkowski, of counsel sought to make an unheralded, oral application to set aside judgment. The Court declined to hear that application but provided a timeframe for a properly constituted formal application to be made. That application was made and the hearing took place over three separate hearings, 11 November 2019, 29 July 2021 and 5 October 2021. The Master recorded that at the end of the first hearing slot the submissions of the First Defendant remained incomplete.
THE APPLICABLE PRINCIPLES on this APPEAL
The task of this Court is to ascertain whether the Master in refusing to set aside judgment made an appealable error. The scope of the jurisdiction is not in contention and I therefore set it out briefly, save...
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