INSURER’S APPLICATION TO SET ASIDE DEFAULT JUDGMENT REFUSED ON THE BASIS OF INEXCUSABLE DELAY

In Mann v Towarzystwo Ubezpieczen Inter Polska SA & Ors [2021] EWHC 2913 (QB) Master Thornett refused an insurer’s application to set aside judgment on the grounds that the application was not made “promptly”.

THE CASE

The claimant brought an action on behalf of someone who had undergone surgery in Poland. The First Defendant was the relevant insurer. Proceedings had been served on the First Defendant in Poland and judgment in default entered.  Judgment was entered on 31st August 2017, the application to set aside judgment was not made until 14th April 2019.

THE QUESTION OF DELAY

The Master found the explanation for the delay in making the application unsatisfactory.

1. 1. 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.

1. 1. 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.

1. 1. 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.

1. 1. 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 involved but instead await outcome of the Second and Third Defendants’ Application. Even if this placed the First Defendant in a vulnerable position to a default judgment being entered in the interim (as transpired the case).

m. The basis for exploring inference as to the First Defendant’s position at this early stage in the sequence is because, as I find, the First Defendant’s general explanation as to what happened before its April 2019 Application is vague and undeveloped for this period. This is despite the background facts summarised above clearly inviting specific comment and explanation. In the absence of such comment, it is very difficult to accept that both procedural stance of the Second and Third Defendants should be wholly divorced from the stance taken by the First Defendant in this Application and so the First Defendant’s account about being unaware of its own procedural position until a year or so later should be accepted without scrutiny.

n. Despite the outcome of the July 2017 hearing, the First Defendant did nothing in terms of responding to service. Unsurprisingly, therefore, the Claimants applied for judgment in default of Acknowledgment of Service or Defence on 23 August 2017. The absence of an Acknowledgement of Service from the First Defendant, assuming service of proceedings, precluded it from raising its own jurisdiction arguments under CPR 11.

o. In a Witness Statement dated 25 August 2017 in support of the default Application, Ms Wolfe annexed her 15 March 2017 letter as had listed enclosed documents as sent the First Defendant “both in English and Polish translation”. The clear purpose, as expressed in that letter, being that such provision to the First Defendant was “for your information and by way of informal service”, the same documents having at that date also having “been sent for processing by the Polish Court“.

Thus, this is not a case where the applicant defendant can assert that its only knowledge of issue of a Claim Form in this jurisdiction, along with its supporting documentation, derives from a single event of purported but defective formal service. To the contrary, the effect of the March 2017 correspondence had been sent to the First Defendant not only to notify it that proceedings had been commenced in this jurisdiction but to provide copies of the very documentation as would be formally served. Therefore, whilst informal service plainly cannot substitute the requirements of formal service, such notification and provision of copy materials to be served remains central to consideration of:

(i) The First Defendant’s overall knowledge and understanding of proceedings having been issued in this jurisdiction;

(ii) The objective reasonableness and relevance of the First Defendant’s assertion it had limited knowledge and understanding of the effect of such documents; and

(iii) Issues of delay and discretion as underpin the April 2019 Application.

p. Despite the material around the service of documents by the Polish Court in May 2017, the First Defendant invites the court to look at that event in isolation and narrowly. It offers little if any comment as to the effect of the considerable steps by way of notification and invitation from the Claimants previously.

1. 1. The First Defendant’s explanation for default and delay in responding to the claim and its late Application to set aside judgment

a. In summary, I find none of this persuasive.

b. I do not regard it as entirely incidental that the First Defendant’s Application itself was only issued upon direction of the court. A CCMC had been listed for 26 March 2019 in respect of the defended claim by Second and Third Defendants and in consequence to the default judgment against First. The Second and Third Defendants had prepared accordingly. Ms Wolfe adds she personally had also sent out a copy of the Notice of the 28 March 2019 hearing to all the Defendants but no acknowledgment had been received from the First Defendant until three days’ earlier, on 25 March 2019, when the First Defendant indicated it would be sending representation to that hearing.

Mr Kwiatkowski, Counsel instructed by the First Defendant, appeared at the hearing. He told me he had an oral application to set aside judgment that he openly accepted would somewhat upset the intended format for the hearing. The court declined to hear an impromptu oral application and instead provided a short period for a formal Part 23 application to be issued and served. Because of this, the CCMC as intended had to be vacated. Directions in the claim remain unsettled because of the First Defendant. Preparation for the ultimate resumed CCMC will be unlikely to derive much benefit, if any, from the hearing aborted in March 2019.

c. It is hardly novel for a party applying very late to set aside a default to judgment to be expected to explain when they first knew that judgment had been entered against them. Despite this, nowhere in the First Defendant’s April 2019 Application and documentation is a clear and unequivocal acceptance of a date by which it accepts it both knew about the default judgment and accepted it had to do something about it. I was obliged at the November 2019 hearing to ask Mr Kwiatkowski to take direct instructions from Mr Grochowalski of the First Defendant (who had personally attended that hearing) about the precise date.

The reply was that it was “somewhere around October or November 2018”.

d. I find that delay of itself, some six months or so between admitted knowledge and Application, by a professional defendant whose insured is a co-defendant, sufficient alone to dismiss the First Defendant’s Application in the absence of convincing explanation.

The explanation for this particular period of delay is that the First Defendant felt constrained to instruct Polish speaking lawyers in this jurisdiction and this took time. I do not find this a convincing explanation. Whilst I readily follow in principle the desire of a non-English speaking party to converse with lawyers in the same language, that can hardly justify unreasonable delay given the reasonable and ready alternative of instructing English speaking lawyers in or around London and using a Polish translator : even if only for the interim purposes of issuing the relevant Application and so avoiding any criticism of delay as to issue.

e. There is nothing in the period before “somewhere around October or November 2018” that assists the First Defendant either.

f. The detailed Witness Statement dated 15 April 2019 from Mr Pawel Grochowalski, a senior officer of the First Defendant, in support of the First Defendant’s Application sets out to explain (i) why the First Defendant did not believe there were live or active proceedings in this jurisdiction until many months after the default judgment (ii) the inadequacy of the documentation apparently served (iii) the nature of the proposed Defence, if so permitted, and its merits.

g. Mr Grochowalski candidly accepts that all of his submissions are based upon his interpretation of a claims file that had been treated by the First Defendant back in 2016 as closed. He concedes that his commentary is without the assistance of any employees who were directly employed at any stage from the first correspondence from the Claimants, service of the Claim Form or subsequently. Apparently, none of them work for the First Defendant any longer. There is no discussion why they could not have been contacted to assist in the Application.

h. Either way, Mr Grochowalski’s evidence is one of surmise and retrospective interpretation from the papers. At Para 6 he comments “I can only present the matter as it arises from our files and our Internal procedures, which we have developed to date”. Hence, “The information at points 7-9 below is only the Interpretation and not my personal account of events, that probably could have taken place and are based on my inspection of our (Inter Polska’s) file and from investigation we have made recently”.

i. There is a further and very significant qualification about his evidence. I express serious concern as to the extent to which Mr Grochowalski’s submissions are made truly from his own on his own knowledge and interpretation rather than with the assistance of legal advice. At end of Para 4, in the context of acknowledging receipt by the First Defendant of the April 2017 Order and supporting materials showing that that Claimants had extended time in which to serve the proceedings, appears the sentence:

“We’ve filed this letter to our “old” case of Mrs. Denise Mann. Could we say that this didn’t make sense to TU lawyers ? -/-“

j. Mr Grochowalski explains that because a decision had been made in August 2016 to reject Mrs Mann’s claim, following correspondence with the Claimants in 2015, this was seen as a closed case where there would be nothing further to do unless and until the Polish Court notified it what needed to be done. The First Defendant does not suggest it ever misunderstood the nature of the claim being intimated. The First Defendant instead suggests that it was entitled to ignore the correspondence from the Claimants’ solicitors because it was not from the Polish Court.

k. He explains how Polish civil procedure is such that there can be no formal response to lawyers unless legal process has been served by the Polish Court. In respect of materials as sent directly by the Claimants’ firm, he comments “In Poland, this type of practice is simply not recognised, and it would be wrong for us to rely on them”.

Whether this description is factually correct or not is largely irrelevant. The pertinent question not answered by Mr Grochowalski is why his company should have felt entirely entitled to assume that correspondence and proceedings emanating from another (as then) EU state could be similarly treated. Clearly, this was not correspondence from Polish lawyers in respect of Polish litigation, so discussion as to what would happen if it were does not provide a complete answer. It does not justify why, as a commercial enterprise, the First Defendant failed to make any reliable external enquiries whether its understanding about the English proceedings was correct.

l. Neither am I satisfied that Mr Grochowalski’s version of how such documentation would have been treated in Polish is sufficient to persuade me that neither would any relevant employee(s) of the First Defendant who handled both the pre-service documentation and that formally served would similarly have believed it required no response. Mr Kwiatkowski’s oral references to the “old country” and invitations that I take into account the conservative attitudes towards authority of a former communist state did not assist me. I am instead left uncertain whether the actual recipients of the May 2017 documentation would have understood its importance but instead failed to process it.

m. I therefore treat it as more speculation than objective observation how, at Para 7, Mr Grochowalski opines that in response to the March 2017 Order extending time for service the employee dealing with the case, Mrs Bielecka, “could have assumed that by no later that September 2017 we should receive full case documentation from the above mentioned court including the notice regarding the hearing date, and other forms to submit by us before the hearing”. The remark that Mrs Bielecka therefore “correctly and according to standard of Polish law assessed the situation” is irrelevant.

n. There is a further problem in the First Defendant’s denial of the relevance of documentation because it had not received directions from the Polish Court. As stated, the 24 April 2017 Order featured provision for it to be set aside. Even if an element of uncertainty just might have been corporately shared by the First Defendant’s employees, any reasonable and responsible professional organisation ought to have raised more specific enquiries as to the effect of an express provision that the First Defendant might apply to this court to set the Order aside.

o. This analysis remains pertinent and damaging to the First Defendant as at the date of service by the Polish Court of the Claim Form and supporting documentation in May 2017. I repeat, Mr Grochowalski offers very little about how, if at all, the First Defendant responded internally to the event. He refers to no internal process for checking and reviewing the documentation as served and any decision making in consequence, given this clearly appeared to be a revival of the claim as it had denied in August 2016. Instead, we are told that in April 2018 [i.e. seven months after the default judgment] “Inter Polska compensation department employee dealing with the case of Mrs Mann went on a prolonged sick leave in connection with her pregnancy”. The process of hiring a replacement took time and so ordinary internal review procedures as would have “highlighted the matter as not finished and would further query documents” was missed.

p. I do not find this explanation at all sufficient. It is effectively an unattractive admission that the First Defendant had no (or no effective) review procedures from the time of service of documents in May 2017 and such failure continued even when the relevant employee went on maternity leave in April 2018. Entirely without credit to the First Defendant, Mr Grochowalski admits at Para 10 that the first such review he believes took place might have been prompted more by the fact that, in June 2018, the First Defendant relocated to new offices in Warsaw “and during the relocation work, documents of ongoing and suspended cases were reviewed as a matter of internal request. We noted we had still not received any court correspondence from the English Court”.

q. The shift of emphasis in Paras 10 and 11 away from expectation of direction from the Polish Court to an expectation of receipt of documentation “from the Claimants” or the “English Court” seems perverse and contradictory. Also contradictory is his comment [Para 13] the he was surprised to hear questions from Second Defendant’s legal representatives asking the First Defendant about English litigation and the existence of a default judgment “(B)y the end of 2018….because we have not received any formal notice from the English Court….We were not aware of the severity of the situation”.

r. The “somewhere around October or November 2018” date of first knowledge orally confirmed at the hearing is unreliable anyway.

s. At Para 17, Mr Grochowalski describes how, on date unhelpfully unspecified^[3], the First Defendant had “mentioned” to one of the Polish law firms with whom they regularly deal that they had received documents from an English firm of solicitors. Because that lawyer, a Mr Stazecki, maintained a “social relationship” with “a lawyer in the UK” as a favour Mr Stazecki agreed to speak with his friend. The friend informed Mr Stazecki that “our company will be subjected to court proceedings / trial in London”.

t. This somewhat opaque and generalised version of the response received as a result of the enquiry presumably is offered as a gentle concession that at least some information about the default judgment had percolated to the First Defendant in the months that followed. The First Defendant, however, invites the court to treat this very generalised reference as consistent with the general context of the First Defendant not really being aware of the significance of the default judgment until some time later.

A further emphasis by Mr Grochowalski is that none of this sequence establishes that the First Defendant ever formally instructed lawyers to act for it during this period, this only occurring when it instructed its current (English) firm to present an oral application at the hearing listed in March 2019. I do not find this distinction relevant to the chronology of what the First Defendant actually knew and what it might have done sooner. The distinction of not having formally instructed lawyers at that stage is not enough to displace the relevance of the information received.

u. The witness evidence from the Claimants’ Ms Wolfe provides contrasting and very illuminating information.

She states that on 12 December 2017 a Mr Mark Stiebel of Charles Mia Solicitors telephoned and

“who stated that he was calling on behalf of the First Defendant as it had received some documentation from the English Court and he was seeking to find out the current position with the claim. I updated him on the present position with the proceedings and, in particular, that the Claimants’ had obtained an Order for Default Judgment against the first Defendant and the matter would shortly be listed for hearing. Mr Stiebel asked if I would agree to have this Order set aside to which I did not agree and stated that, in accordance with the proper procedure, the First Defendant would need to make an application to Court if it wished for the court to set the Order aside. Mr Stiebel then asked if I would e-mail him a copy of the Order for Default Judgment which I duly did later the same day, again stating the need for the First Defendant to make an application if it wished to challenge the Order”.

Ms Wolfe annexes a copy of the e-mail of 12 December 2017 @ 11:13 attaching the 6 September 2017 Order and as provided a schedule of costs as at 6 October 2017, commenting further “Should you wish to challenge the attached Order, you are free to apply to the Court accordingly”.

v. I cannot accept that this more specific version did not find way back to the First Defendant [i.e. who instead only received the more generalised and anodyne message Mr Grochowalski describes]. After all, why would each respective lawyer have gone to such initial trouble to assist and yet fail sufficiently to report back? This has nothing to do with whether they were formally instructed.

w. I find that the start of the First Defendant’s knowledge of the default judgment commences a few days after 12 December 2017 and certainly not “somewhere around October or November 2018”. The April 2019 Application is therefore even later than it first seems, notwithstanding the point made by Mr Kwiatkowski that provision of the default judgment by this method did not constitute formal service of the default judgment by way of CPR 23.9.

x. In conclusion, I am satisfied that the April 2019 Application should fail on the basis of significant and inexcusable delay. I do not find Mr Grochowalski’s emphasis upon the First Defendant being a small niche company in the Polish insurance market and as had no previous experience of a claim against it brought in another jurisdiction relevant. I am satisfied that such a company could and should taken reliable advice to understand about the English proceedings from service in May 2017 if not previously upon their notification by the Claimants’ solicitors. This could have been done by a variety of means. If I am wrong on this, then the date should at least have been from around mid-December 2017 onwards. Even if the First Defendant first had to find a Polish speaking firm of solicitors in London to obtain legal such advice, that could never account for the extraordinary delay that elapsed.