We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
02/07/2026
Kerry Lucas v (1) Dr Osita Oranugo, (2) Greyfriars Surgery [2026] EWHC 1534
The underlying claim is one of clinical negligence, namely an allegation that the Defendant failed to offer a neurology referral following an episode of facial numbness, resulting in delayed diagnosis of multiple sclerosis.
The application arose as correspondence that had been sent to the Defendants’ surgery from the Claimant had been mishandled and had not been passed to the Defendants by the surgery’s practice manager. Consequently, the first that the Defendants were aware of the claim against them was the discovery of an unopened notice of an adjourned court hearing after the practice manager had gone on sick leave. By this point, default judgment had already been entered against the Defendants, and so they made an application for this to be set aside.
At first instance Mr Recorder Neville dismissed the Defendants’ application, finding that the defences disclosed no real prospects of success, and the Defendants subsequently appealed.
The discretionary test for setting aside default judgment is set out at CPR 13.3. As per CPR 13.3(1), the underlying prospects of the claim must first be determined namely: “(a) the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why- (i) the judgment should be set aside or varied; or (ii) the defendant should be allowed to defend the claim.”
The Court stressed that when assessing prospects, the principles set out in Easyair Limited v Opal Telecom Ltd [2009] EWHC 339 (Ch) should be applied, specifically that the defence would need to “carry some degree of conviction” and must be more than merely arguable, but that in determining this the court should not undertake a mini-trial. Effectively, this means that whilst courts should not take parties’ arguments at face value, but rather that courts should consider both the evidence before it and the evidence that can be reasonably expected to be at trial.
If it is satisfied that the claim has merits, then the court turns to 13.3(2) and considers the promptness of the application “(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”
On this point the Court cited the case of Standard Bank PLC v Agrinvest International Inc [2010] EWCA Civ 1400, particularly the observation that given that no other factor beyond promptness is mentioned explicitly, the issue of promptness carries substantial weight in determining applications to set aside default judgment, and that courts would be entitled to dismiss an application on this basis. However, promptness alone is not the be all and end all and other factors may carry sufficient weight to grant relief.
Finally, the ordinary Denton principles should also be considered.
At first instance, the Recorder compared the Defendants’ GP expert against the Claimant’s expert, and for various reasons, including compliance with post dated NICE guidelines, preferred the evidence of the Claimant’s expert. Mr Justice Soole was highly critical of this approach, noting at [60] that “by the very process of comparing the rival expert reports, the Recorder had conducted a mini-trial. He had done so when disclosure was incomplete; full expert reports had not been prepared; and no joint meetings had taken place or joint statements produced. Further, neither party had found any authority for the grant of summary judgment in a case of dispute between the rival experts.”
Mr Justice Soole went on to criticise the Recorder’s summary rejection of the Defendants’ expert given the expert’s experience and the fact that his opinion was prima facie reasonable. Instead, he stated that the fact that the report had been provided quickly should have been taken into account and that in any event it was sufficient to establish a real prospect of success of defending the claim.
Although the Recorder did not proceed to consider promptness this was considered by Mr Justice Soole on appeal. However, whilst he accepted that the failure was likely the fault of the departed practice manager, he added that this represented inadequate systems on behalf of the Defendants, and that this was an important point to take into account when considering promptness more broadly. On this basis it was considered that the lack of promptness “deserved significant weight”, though it was not of such a weight that all other factors should be disregarded, and upon also applying the Denton test, Mr Justice Soole granted the appeal.
It is important to note that whilst the Court granted the Defendant’s application to set aside default judgment, this should not be interpreted as the Court granting such applications lightly. In the Judgment, the Court specifically stated that the “rival factors were finely balanced”, and this should serve as a reminder to defendants not to rely on courts readily accepting applications to set aside, even where there is a prima facie strong case. In particular, on paper, the Defendants appeared to have a good reason for the lack of promptness, and upon discovering the error they certainly acted promptly. Despite this, the delay was still criticised by the Court.
The case also highlights the risks of jumping the gun and erroneously conducting a mini-trial in applications to set aside. As stated by the Court, it is important to consider the broader circumstances of the expert evidence as well as the further evidence that may be available at trial.
Sign up
To be kept up-to-date with our latest news and future events, please complete the short form.
A member of the clerking team will help you resolve your request.
