This is an appeal by D1 GP and D2 medical practice against the decision to set aside the judgment in default entered against each of them and for relief from sanctions. Ds contend that the Recorder was wrong to conclude that their respective defences had no real prospects of success. [1]
the claim is centred on the allegation that when C attended D1 on 31 March 2017 in connection with an episode of numbness to the left side of her face, he failed to offer her a neurology referral. It is alleged that she would have accepted that offer; that if she had done so her condition of multiple sclerosis would have been detected well before the eventual diagnosis on 20 May 2019; and that with appropriate treatment her condition would be much better than it has become. [3]
The relevant law on applications to set aside regular judgments was not in dispute… the court must first consider the merits test namely whether ‘the defendant has a real prospect of successfully defending the claim… [10]
the decision on whether the defences in each case have a real prospect of success is not an exercise of judicial discretion, but requires an evaluative judgment. The question for the appellate court is whether the Recorder’s decision was right or wrong. [85]
in all the circumstances, I am satisfied that the Recorder should have concluded that in each case the respective defences have real prospects of success. [92]
the loss of ability to pursue a defence which has a real prospect of defeating this claim of professional negligence would constitute a very substantial prejudice to Ds. In this respect I am also not persuaded that the distinction between a judgment in default and a judgment on the merits would be readily appreciated outside informed legal circles. In weighing the competing factors, I also think it a material factor that, whatever the failings of the Practice Manager and/or the system for dealing with the claims, D1and his partners had no actual knowledge of the existence of this claim… [103]
I have not found this an easy decision. The rival factors are finely balanced. Having regard to all the circumstances and in the overall exercise of my discretion, I have concluded that the balance just falls in favour of permitting Ds to defend this claim. Accordingly, the appeal is allowed. [104]
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