One important aspect of the new rules about relief from sanctions is that they apply to defendants as well. A defendant who is late in adducing evidence can be debarred from calling evidence as in the Durrant case. Here we take a look at the limits upon the arguments the defendant can put forward in these circumstances.
RELEVANCE TO RELIEF FROM SANCTIONS
|In Durrant -v- Chief Constable of Avon & Somerset Constabulary  EWCA Civ 1624 the Court of Appeal refused the defendant’s application for relief from sanctions and permission to call evidence. However it refused the claimant’s application for summary judgment stating:-|
|“We are satisfied that this aspect of the claimant’s appeal must be dismissed notwithstanding our decision in respect of relief from sanction. In our judgment, there was and is no substance in her application for a strike-out or summary judgment. Her claim depends in part on her own credibility, which the defendant is entitled to challenge at trial; and there is documentary material on the basis of which the defendant can properly mount such a challenge even though he is unable to call any witnesses on his own behalf. In any event her allegations of race discrimination, racial targeting and the like are denied by the defendant, who has a real prospect of successfully defending the case at trial even without witness evidence of his own. The refusal of the defendant’s application for relief from sanction will make the claimant’s task that much easier, but she will still need to prove her case; and it will be for the trial judge to determine whether she has done so.”|
COMPLEX ARGUMENTS: THE PRE-MITCHELL DECISION IN THEVARAJAH
|In Thevarajah –v-Riordan  EWHC 3179 (Ch)|
the judge granted relief from sanctions, partially, because of the difficulties in working out precisely what points the defendant could and could not argue having been debarred. The judge considered the position if the defendant was debarred:
” I consider that, notwithstanding the fact that they are currently debarred from defending the claim and subject to the court’s inherent jurisdiction to regulate its own process, the Defendants are entitled at trial to require the Claimant to prove his claim, to cross-examine and to make submissions.
- In Culla Park Ltd v Richards, unreported,  EWHC 1687, the court held that striking out the defence to a claim for malicious falsehood did not prevent the Defendants from participating at trial or from testing the allegation of malice which the Claimant was required to prove against them. Mr Justice Eady said this at paras. 11 and 12:
- 42. ’11. When I adjourned the trial on 1st December 2006 I ordered inter alia the Defence of Mr and Mrs Kristaps be struck out unless they complied with certain outstanding costs orders. That order was not complied with and accordingly Ms Skinner’s primary submission is the Defence was automatically struck out. On 16th February 2007… I declined to enter judgment against the Kristaps upon condition that the unpaid costs order was complied with within seven days. Since finally the costs were paid within the time specified, Mr Kristaps submits the Defence was reinstated. There is of course a difference between striking out a Defence and entering judgment. Although I did not allow a judgment to be entered, the Defence remained struck out as a result of the earlier unless order.
- 43. 12. This means that the Claimants will still need to establish their case in relation to each pleaded publication and to adduce evidence in relation to such matters as aggravated and special damages. The plea of aggravated damages in this case largely overlaps with the plea of malice which is an essential ingredient in support of the claim for injurious falsehood. Even though some defences have been struck out, it seems to me that the Defendants would still be entitled to test the case in relation to such matters and in particular to resist allegations of dishonesty introduced in support of the plea of malice. This relies on evidence as to their respective states of mind at various points over a considerable period of time.’
- A similar conclusion was reached in the case of JSC BTA Bank v Ablyasov (No 8)  1 WLR 1331 where Lord Justice Toulson in a dissenting judgment – the only judgment to consider the effect of the debarring order on the conduct of the trial – stated at p. 1397:
‘I would not expect the court to allow Mr Ablyasov to give evidence at the trial from some place of hiding but it is another matter to debar him through counsel from seeking to test the bank’s claims and perhaps call other evidence.’
- Mr Bailey relied on the case of Momson v Azeez as authority for the submission that once debarred from defending a claim the Defendant had a right to be present in court but no right to test the Claimant’s case. I reject that submission. As Mr Davenport submitted, there was no analysis in those judgments of the effects of a debarring order. It is necessary to refer to the passages in the judgments relied on by Mr Bailey to see precisely what this authority establishes. At first instance ( EWHC 623), Mr Justice Briggs said at para 26:
‘I bear in mind of course also the consequence of not granting relief to the Defendant which was that he was unable to attend a trial in which the principal plea in issue was whether there had been between him and the Claimant an agreement or an understanding that properties purchased during their relationship together should be jointly owned.‘ “
He went on to state:
“I do not regard any of the observations by their Lordships at various stages in that case as giving me any particular guidance as to the course a judge should take in circumstances where a Defendant has been debarred from defending a claim but the Claimant is nevertheless still required to prove his claim. I consider that what needs to be considered is the overriding objective and the need to achieve a fair result. The fact that Mr Justice Hildyard was not prepared to give the Claimant judgment in default and required him to prove his case at a further hearing before a judge strongly suggests that he envisaged the Claimant’s case being tested not just by the judge on that further occasion but by the Defendants who would be entitled to assist the judge within suitable parameters designed to reflect the fact that they had been debarred from defending the claim. So, for example, whilst not entitled to challenge the issue of liability, the Defendants would be entitled to make submissions to the court on the appropriate form of relief as well as challenging the Claimant’s liquidated claim.”
Thevarajah was a pre-Mitchell decision. It is extremely unlikely that the defendants would obtain relief from sanctions if the Mitchell criteria applied. The complex issue of what the defendant could and could not argue would have to be considered.
RELEVANT CASE LAW IN RELATION TO THE MATTERS A DEFENDANT CAN ARGUE ONCE CLAIMANT HAS JUDGMENT
New Century Media Ltd –v- Makhlay  EWHC 3556 (QB) was a contractual dispute where judgment had been entered in default.
THE DAMAGES HEARING
At the hearing concerning the assessment of damages the defendant argued that all that had been established by the default judgment is that the claimant is :
“entitled to an amount of money…[the defendant] cannot argue that the claimant is not entitled to an amount, but he is otherwise unfettered in the arguments that he can raise on liability relevant to what that amount might be”
THE JUDGE’S CONCLUSIONS
The Judge found that the defendant’s position was “misconceived” and that it was not now open to him to raise points of repudiation and early termination.
In relation to the effect of default judgment he said
“30. A default judgment on liability under CPR Part 12 is a final judgment that is conclusive on liability. The Particulars of Claim are, in effect, a proxy for the judgment, setting out the basis of liability. Once judgment is entered, it is not open to a defendant to go behind it. Damages of course still have to be proved, and a defendant can raise any issue which is not inconsistent with the judgment – see the White Book 2013 notes to CPR 12.4.4.”
“ 36. Mr Makhlay had a full opportunity to defend the claim on liability. If he disagreed with an aspect of liability that was relevant to quantum, it was for him to challenge the claim at the liability stage. He chose not to do so. He has not sought to set the judgment aside. He cannot now “roam freely” across issues of liability as he wishes to do.”
“40. Mr Makhlay’s approach is tantamount to an abuse of process by way of a back-door attempt to challenge the findings in the judgment. It offends not only a natural sense of justice, but also against the general rule that a party should not be allowed to litigate issues which have already been decided by a court of competent jurisdiction.
“41. The consequences of Mr Makhlay’s position being correct would be startling : a defendant would benefit from failing to lodge a defence on liability and by simply submitting to a judgment in default, holding his powder dry until the quantum stage. He would then be able to mount, essentially unfettered, all and any arguments on liability at the quantum stage that he wished – probably, as has happened here, without any proper pleading or identification of the issues.”
FURTHER CASES ON POINT
Lunnun –v- Singh
Lunnun v Singh  WL 477360 was a case in which in which Mr Justice Jonathan Parker stated:
“In my judgment, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment. In this case the judgment was a default judgment…”
The case concerned water draining from the defendants’ premises into the claimant’s cellar. The claimant claimed in excess of £100,000 and obtained judgment in default. The first instance judge found, as a preliminary issue, that the defendants could not argue issues in relation to causation of the damages, he granted permission to appeal. Parker L.J. stated:
“I turn first to the question whether it is open to the defendants, notwithstanding the default judgment, to raise at the damages hearing the issue whether water damage from another source was responsible for damage to the claimant’s basement. In my judgment, the position in this respect is as follows. The default judgment is conclusive on the issue of the liability of the defendants as pleaded in the Statement of Claim. The Statement of Claim pleads that an unspecified quantity of effluent escaped from the defendants’ sewer into the basement of the claimant’s property. In addition it is, Mr Exall accepts, inherent in the default judgment that the defendants must be liable for some damage, resulting thereform. But that, in my judgment, the full extent of the issues which were concluded or settled by the default judgment. It follows, in my judgment, that in the instant case all questions going to quantification, including the question of causation in relation to the particular heads of loss claimed by the claimant, remain open to the defendants at the damages hearing. Direct support for this conclusion is, in my judgment, to be derived from the decision of this court in Turner v Toleman. Equally, the Vice-Chancellor’s decision in Maes Finance, as I read it, is entirely consistent, as I read it, with that conclusion”
He went on to state:
“In my judgment, the underlying principle is that on an assessment of damages all issues are open to a defendant save to the extent that they are inconsistent with the earlier determination of the issue of liability, whether such determination takes the form of a judgment following a full hearing on the facts or a default judgment. In this case the judgment was a default judgment. I accordingly accept Mr Exall’s submissions in relation to the first point.
“As to the second point, in my judgment the claimant is only entitled to recover in respect of escapes which occurred prior to the service of the writ (which was, in the instant case accompanied by the Statement of Claim). Had a full trial of liability
taken place, it may well be that the court would have entertained a claim for damages in relation to subsequent escapes up to the date of judgment. But in the instant case there was no trial. All that happened was that on 27 June 1991 the claimant entered a judgment in default. In my judgment, the date on which the defendant elected to take that essentially procedural step cannot affect the extent of the defendants’ liability. I therefore accept Mr Exall’s submission on the second point also. In my judgment, the claimant is only entitled to recover damages in respect of escapes which took place prior to service of the writ”
Parker LJ summarised the position:
“In my judgment the relevant principles can be deduced from Turner v Toleman and Maes Finance Limited and Another v A Phillips & Co, to both of which my Lord, Mr Justice Jonathan Parker, has referred. They may be summarised as follows:
1 The ordinary form of judgment of the court entered in accordance with RSC Ord.13,r.9 (2) is that: “It is this day adjudged that the defendant do pay the plaintiff damages to be assessed.”
2 The defendant may apply for an order that the judgment be set aside.
3 The following propositions assume that the judgment is not set aside. They also assume that there has been no judicial determination of any of the issues because if there has that determination will of course bind the parties subject to any
4 On the assessment of the damages the defendant may not take any point which is inconsistent with the liability alleged in the statement of claim.
5 Subject to 4 the plaintiff may take any point which is relevant to the assessment of damages.
6 Such points will include the following:
(1) Contributory negligence: see the passage quoted by Mr Justice Jonathan Parker from Maes Finance;
(2) Failure to take reasonable steps to mitigate (see the same passage in Maes).
(3) Subject to (5) below, causation.
(5) Causation. As the Vice-Chancellor put it in Maes:
“The defendant cannot thereafter contend that his acts or omissions were not causative of any loss to the plaintiff. [My emphasis] But he may still be able to argue, on the assessment, that they were not causative of any particular items of alleged loss.”
Moreover, he may do so even if the statement of the claim alleges a particular item was caused by the tort.
In Turner v Toleman Lord Justice Simon Brown, with whom Mr Justice Wilson agreed, as my Lord has indicated, quoted the following statement by Lord Justice Waller in refusing leave to appeal on paper in that case:
“`What loss and damage was caused by this defendant’s negligence must be part of the exercise of assessing damages.'”
Lord Justice Simon Brown expressed the view that that was plainly correct and that it accorded with his own experience
over many years. “
THE COUNTER-SCHEDULE IN LUNNUN
Lunnun shows the importance of a detailed counter-schedule. This prevents the argument that the claimant has been taken by surprise. This was considered in detail in the Lunnun judgment.
“On or about 6 November 1998 the defendants served a Counter Schedule. The counter schedule opens with two introductory paragraphs before turning to the specific items of damages claimed. The introductory paragraphs read as
“1 The effect of the default judgment.
By reason of the default judgment entered against them it is not open to the defendants to argue that the plaintiff has not suffered damage as a result of water flowing from a cracked sewer. However, the defendants are entitled to:
(1) Dispute that any water flowing from the pipe onto the plaintiff’s property was causative of any of the particular heads of damage.
(2) Dispute the plaintiff’s case as to quantum.
Further the judgment entered on 27th June 1991 cannot be conclusive of any matters after that date. If the plaintiff is seeking to make complaints of additional, or different, matters of default after 27th June 1991 then the statement of claim needs to be amended and the judgment set aside.
Finally the plaintiff can only rely on the pleaded allegations as to the source of the water.
2 The burden of proof.
Although there is a presumption that there is some damage the fact that a judgment has been entered on the issue of liability does not reverse the burden of proof. The burden is still on the plaintiff, in relation to each individual head of loss, to prove causation and quantum.
It is the defendants’ case that any damage caused was de minimis and that the plaintiff was only entitled to nominal damages.”
As to the damages claimed under the claimant’s first head, the defendants admit that the specified works were carried out and that the cost of carrying them out was reasonable.
The Counter Schedule continues:
“(3) The plaintiff is put to strict proof that any water that came from the pipe in the defendants’ premises gave rise to the need for repairs. In particular:
(a) There were other causes of damp and water penetration in the cellar. The plaintiff was put to strict proof that it was not these other sources that caused the need for repairs.
(b) The flow of water baled in 1990 was 70 – 100 gallons per day. This is in excess of the total water consumption of the Temple and far in excess of any amount that could have seeped through a damaged drain.
(c) The primary, if not the sole, reason for the repairs was the flow of water from other sources and there is no causal link between any damage caused by seepage from the pipe and the repairs carried out.
Further, (d) The defendants’ pipe was repaired in 1991.
(e) After that date the plaintiff still had problems with damp and water penetration. This was not caused by the defendants’ sewage pipe.”
In relation to the second head of damage claimed by the claimant (loss of income) the Counter Schedule states as follows:
“(1) It is denied that seepage from the defendants’ pipe caused the loss of income.
(2) It is not admitted that the plaintiff ever intended to let the premises out for
(3) The plaintiff is put to strict proof that he had planning permission for such use and that such use was lawful.”
(4) refers to a covenant (I need not read it). (5) relates to letting the rooms (and I need not read that either).
“(6) The plaintiff is put to strict proof of the sums that he would have allegedly earned.
(a) No admissions are made as to the sums claimed or alleged period of rental or hire.
(b) No admissions are made as to whether these sums are claimed net or gross and the plaintiff’s liability to pay tax on any income he alleges he would have received.
(7) There are issues here of mitigation of loss. The plaintiff is put to strict proof that he attempted to mitigate his loss.”
THE TRIAL IN LUNNUN
Following the Court of Appeal decision the Lunnun case went to trial. The claimant actually received £400 (nominal damages) and a few pounds for a dye test taken to the drains. The defendant had paid in £1,000 many years before (prior to the Court of Appeal hearing). The judge made no order for costs up to the date of the payment in (on the grounds that the matter should have been in the small claims court) and ordered the defendant to pay the claimant’s costs thereafter. The claimant failed to prove that any of the damages claimed were due to the defendants’ drains and the damages awarded were nominal for that reason.
(This is based on my own note of the trial where I represented the defendant).
PUGH –V- CANTOR: ARGUING MITIGATION OF LOSS
Pugh –v- Cantor Fitzgerald International  CP Rep 74 was a case of wrongful dismissal where the claimant had entered judgment in default. The counter-schedule argued that the claimant was not entitled to damages “as a matter of causation” because the defendant was entitled to terminate the claimant’s contract of employment, and that the losses did not flow from the defendant’s breach because of the claimant’s repudiatory breach of the terms of the contract. The counter-schedule also dealt with issues relating to mitigation of loss, some of these allegations related to a repetition of the points relating to liability. The Master struck out parts of the counter-schedule that dealt with issues of causation and mitigation. The High Court Judge allowed an appeal on the mitigation point. She held that the mitigation points, although relating to identical facts as the causation issues, related to different issues and should not be struck out. The claimant appealed that order. The Court of Appeal dismissed that appeal.
LUNNUN APPLIES UNDER THE CPR
The Court of Appeal confirmed that the principles in Lunnun survived the introduction of the Civil Procedure Rules. On an assessment of damages, all issues were open to a defendant, except to the extent that they were inconsistent with the earlier determination of the issue of liability. This applies whether the determination takes the form of a judgment following a full hearing on the facts, or a default judgment.
FAILURE TO HAVE JUDGMENT SET ASIDE NOT DECISIVE
The Court rejected an argument that there was any estoppel or determination of the issues caused by the fact an application to have judgment set aside was dismissed. Ward L.J. observed:
“That central question is whether the same issue is being raised in mitigation of damages as was raised either in establishing liability or in holding that there was no reasonable prospect of establishing a defence to the claim. The judgment on the claim determined the issue that the defendant had unlawfully terminated the contract. The issue raised by the proposed defence and rejected by the Master was that the claimant was guilty of gross misconduct disentitling him to any damages. Those issues cannot be raised again. But what the defendant now seeks to aver in mitigation of the damages that flow from its now indisputable unlawful termination of the contract is that the claimant should not be entitled to argue that he did not have to obtain alternative work as a broker because, if he did so, he would thereby disentitle himself to any of the termination payments due to him under the partnership agreement. The defendant wishes to contend that because the claimant had engaged in competitive activity, he was from that time onwards no longer entitled to those payments, and thus there was no fetter on his going out immediately after his dismissal and finding other work. That issue is quite different from the issues relating to no liability at all or to no causation as pleaded in the schedule of damages. The mitigation issue relates to a wholly different contract between different contracting parties, one which is, moreover, governed by a foreign law, the law of Delaware. The issue is whether the claimant had engaged in competitive activity as widely defined in that partnership agreement. The issue is whether or not he was entitled to the termination payments under the partnership agreement. I am quite satisfied that the judge was correct in concluding that that mitigation issue was quite different from the no liability and the no causation issues.”
(1) A judgment on liability is not conclusive on all issues of damages. The claimant still has to prove damages.
(2) However any points the Defendant takes cannot be inconsistent with judgment.
(3) In the absence of a defence these matters should be clearly set out in a counter schedule.
(4) A claimant must be wary of being taken by surprise at the assessment of damages. If a defendant is allowed to raise these points without setting them out before hand the claimant could be in a worse position than if a judgment had not been obtained.
(5) Finally judgment on liability is no guarantee of success at trial. The eventual outcome in Lunnun shows that a judgement does not lead inevitably to substantial damages, or even an award of costs in the claimant’s favour.
- Pugh –v- Cantor can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/307.html&query=pugh+and+cantor&method=boolean
- Thevarajah –v-Riordan can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Ch/2013/3179.html&query=Thevarajah&method=boolean
- Durrant can be found at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/1624.html&query=Durrant&method=boolean
- New Century Media is at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/3556.html&query=new+and+century+and+media&method=boolean