Farrell v RAS Medical Ltd [Trading as Auralia Clinic] & Ors (Approved)

Factual and Procedural Background

The case concerns a personal injuries action arising from cosmetic surgery provided to the Plaintiff on two occasions in 2020. The Plaintiff issued a personal injuries summons on 15 February 2022, prior to obtaining an independent expert report supporting the claim of professional negligence, to preserve the limitation period. Subsequent expert reports and particulars were furnished in mid to late 2022.

The Defendants sought medical records from the Plaintiff before delivering a defence, which the Plaintiff provided voluntarily. On 15 March 2023, the Plaintiff's solicitor requested delivery of a defence, consenting to a late defence within 28 days, but received no response. Consequently, on 11 May 2023, the Plaintiff applied for judgment in default of defence, returnable on 19 June 2023.

On 19 June 2023, the parties agreed by consent to an "unless order" granting the Defendants six weeks to deliver their defence, failing which default judgment could be entered. The order, however, mistakenly named only the first Defendant. Instead of seeking consent to correct this error, the Plaintiff made an ex parte application on 4 July 2023 to amend the order to include all Defendants. This amendment was made without notice to the Defendants and was subsequently served on them on 14 July 2023.

The six-week period for filing the defence was calculated to expire on 4 September 2023. The Plaintiff notified the Defendants on that date of intention to proceed on an assessment of damages due to non-compliance. The Defendants responded by serving a request for particulars on 5 September and delivered a defence on 8 September 2023, which filing was initially unsuccessful. The Plaintiff then set the proceedings down for trial as an assessment of damages only.

The Defendants filed a motion on 26 October 2023 to set aside the default judgment. The hearing took place on 6 June 2024, and the Court reserved judgment, later indicating the default judgment would be set aside. The Plaintiff acknowledged the amendment to the original order was not on consent and no longer sought to uphold it.

Legal Issues Presented

1. Whether it was permissible to amend the original "unless order" unilaterally and without notice to the Defendants.
2. Whether the Defendants satisfied the criteria under Order 27, rule 15(2) to set aside the default judgment by demonstrating "special circumstances" explaining the failure to deliver and file a defence on time.
3. If the amendment to the original order was valid, the determination of the precise date by which the defence should have been delivered and filed.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff contended the amending order was valid and that the six-week period ran from the perfection of the original order, excluding August.
• The Plaintiff argued the Defendants' solicitor failed to comply with the "unless order" due to mistake or inadvertence, which does not amount to "special circumstances".
• The Plaintiff pointed to the solicitor's availability on various dates, including a foreign holiday, and the readiness of the draft defence as evidence that the solicitor could have complied within time.
• The Plaintiff maintained that the Defendants' delay was unreasonable and that the Defendants failed to prioritize the matter appropriately.

Defendants' Arguments

• The Defendants challenged the validity of the amending order, arguing it was made without notice and improperly.
• They relied on the medical emergency suffered by their solicitor in June 2023, including a heart-related surgical procedure and consequent incapacity, as "special circumstances" justifying the delay.
• The Defendants argued that the solicitor’s restricted capacity during the relevant period explained the failure to deliver the defence on time.
• They contended that the draft defence had been prepared before the medical emergency and that but for the emergency, the defence would have been filed timely.
• The Defendants submitted that the six-week period should be calculated from the date of the perfected amending order, which would have allowed timely delivery of the defence on 8 September 2023.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court first examined the validity of the amending order made ex parte to include all Defendants. It held that the amendment procedure prescribed by Order 28, rule 11 requires consent or notice to the other party. The Plaintiff’s failure to seek consent or notify the Defendants before making the ex parte application was a procedural irregularity. The misrepresentation to the judge that the amendment was on consent was an innocent mistake but undermined the integrity of the process. Accordingly, the amending order was set aside, meaning the original "unless order" applied only to the first Defendant, and no default judgment crystallised against the second and third Defendants.

Turning to the application to set aside the default judgment against the first Defendant, the Court applied the requirements of Order 27, rule 15(2). It noted that "special circumstances" must exist at the time of default to justify setting aside the judgment. The Court acknowledged that solicitor mistake or inadvertence generally does not meet this threshold, but that exceptional personal circumstances may do so.

The Defendants’ solicitor suffered a serious medical emergency in June 2023, including hospitalisation and surgery, which substantially impaired his capacity to work through the relevant period. The Court found this constituted "special circumstances" explaining and justifying the failure to file the defence on time. The Court rejected the Plaintiff’s submission that the solicitor’s ability to attend work on some dates or take a holiday negated this finding, emphasizing the overall reduced capacity and medication effects.

The Court also considered the balance of justice, concluding that the Defendants had a defence on the merits with a reasonable prospect of success and that the Plaintiff was not prejudiced by the delay. The Plaintiff was aware of the Defendants’ intention to challenge the default judgment and the grounds for doing so. The Court found that allowing the first Defendant to respond on the merits best served justice.

Regarding the calculation of time, the Court clarified that an order takes effect from the date it is pronounced but the time period for compliance generally runs from the date of perfection of the order. The original "unless order" was perfected on 21 June 2023, and the six-week period excluded August. The Court noted that had the amending order been valid, the time period would have run from its perfection, potentially allowing the defence delivered on 8 September 2023 to be timely. However, with the amending order set aside, the six-week period runs from the original order's perfection date, expiring on 4 September 2023.

The Court suggested that future "unless orders" should specify precise deadlines rather than only time periods to avoid confusion, particularly where time suspensions apply.

Holding and Implications

The Court SET ASIDE the default judgment against the first Defendant pursuant to Order 27, rule 15, on the basis that special circumstances existed—namely, the medical emergency and reduced working capacity of the Defendants' solicitor—that justified the failure to deliver and file a defence within the prescribed time.

The Court also SET ASIDE the amending order made on 4 July 2023, which had improperly extended the "unless order" to all Defendants without notice or consent. As a result, no default judgment crystallised against the second and third Defendants.

The proceedings will continue to be heard on their merits, with the trial specially fixed for October 2024. The Court will hear submissions on the final form of the order and the allocation of legal costs at a subsequent date. No new precedent was established beyond the application of existing principles to the facts of this case.