Simon Picken QC, sitting as Deputy Judge of the High
Court, allowed the defendant’s appeal. While the starting point in determining
the scope of default judgment is to look at the particulars of claim, default
judgment did not establish that all the
damage alleged in the particulars of claim was suffered by the claimant as a
result of the defendant’s negligence. It
was sufficient that the defendant did not take issue with some of the damage alleged by the claimant, as this alone was
enough to establish liability. It was
therefore open to the defendant to advance a causation objection to the other
aspects of damage alleged by the claimant.
The defendant was not obliged by the Civil Procedure Rules to file a
defence and had not acted in a way which was contrary to the overall
objective. Nonetheless, the better
course of action would have been for the defendant to have served a defence and
this is what ought generally to happen.
If the claimant had not already known the defendant’s stance on
causation, the defendant’s conduct would have been more open to criticism.
A default judgment is not necessarily conclusive on the issue of damages.
Arguments over causation and contributory negligence can still be raised in the
quantification process after a default judgment. It is open to the claimant to make an
application asking the court to define what damage was caused by a defendant’s
breach of duty in a default judgment.
A defendant intending to advance causation arguments ought to file a
defence to avoid any criticism of their conduct.