The High Court has set aside a default judgment and a subsequent notice of trial in a professional negligence action against solicitor Susan Fenton, allowing the case to proceed with a defence. The court ordered Fenton to pay the plaintiff’s costs of the motion and the notice of trial, with those costs to be adjudicated if the parties cannot agree.
The judgment, delivered by Mr Justice Barry O’Donnell on 16 October 2023, concerned an application to set aside judgment after an “unless order” made by consent on 8 May 2023. That order gave Fenton four weeks to deliver and file a defence, failing which the plaintiff could recover damages to be assessed by the court.
The judge said the deadline fell on 6 June, because 5 June was a bank holiday. The defence was not received by the plaintiff’s solicitors by that deadline. Fenton’s solicitor said he had sent it through the Document Exchange postal system on 2 June and believed it would arrive in time. The plaintiff received a copy by email on 8 June. The defence was filed in the Central Office on 9 June; Fenton’s solicitor said that delay resulted from an oversight and unfamiliarity with amended court rules.
The plaintiff opposed setting aside the judgment, citing the missed deadline, the late filing and the absence of evidence at first from the person who had placed the letter in the Document Exchange. It also questioned why the defence had not been emailed, as previous correspondence had been. A legal secretary for Fenton later swore that she had placed the letter and defence in an envelope for collection by the Document Exchange on 2 June.
Justice O’Donnell accepted the solicitor’s account that a settled defence had been prepared in advance and that he reasonably believed he had taken steps to deliver it within the court’s deadline. He found that belief, alongside the other circumstances, amounted to “special circumstances” under the relevant court rule. He treated the failure to file the defence as part of the overall circumstances, while noting that the filing oversight alone would not have met the test.
The judge found no specific prejudice to the plaintiff from setting aside the judgment, which had received the defence a few days after the deadline. He said refusing relief would leave the defendant facing an undefended assessment of a complex claim she intended to contest. The order is limited to setting aside the default judgment and notice of trial; the underlying negligence claim was not decided.
The court also directed that the costs of the motion and notice of trial be adjudicated if not agreed, and that the costs order would not be stayed. A further short hearing was listed for 27 October 2023 in case either party sought a different form of order.