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The Dekagram: 15th January 2024

Articles, News | Mon 15th Jan, 2024

It’s 2024! The team has returned from its Winter holidays (skiing in Lincolnshire, since you ask. That’s the last time we let Jack book our hols), and we’re ready to attack the year with renewed vigour. And it’s just as well that we’re at the top of our game, because no sooner had we unpacked than the Supreme Court handed down judgment in Paul, its much-anticipated decision on secondary victim claims. The Court has made it very much harder for such claimants to succeed in medical negligence claims, which (for reasons six out of seven of the judges appear to have found convincing, but which leave the author unmoved) will now almost always be irrecoverable as far as secondary victims are concerned. We can’t help wondering whether the result would have been different had the claims not been against the NHS but rather against, say, a foreign clinic providing cosmetic surgery so negligent that it killed the primary victim. Yet on the face of it the reasoning of the Court seems to encompass these claims too, unless a point of distinction can be made on the basis of the existence of a contract between the primary victim and the service provider. On the other hand, in contexts other than medical negligence the Court has made it easier for secondary victims to succeed in their claims by removing some of the requirements for them to do so. It goes without saying that all practitioners dealing with secondary victim claims should now reconsider them in the light of the decision.  

At the very end of last year the High Court, and in particular our old friend John Kimbell KC, had cause to consider the position where (as is increasingly common) the receiving service authority does not assist in providing a certificate of service. He found a neat solution. So at least that’s one less thing to worry about.

Secondary Victim Claims: Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1

In its first judgement of 2024, the Supreme Court delivered clarity on the controversial question of claims by secondary victims in clinical negligence cases.

A secondary victim is one who suffers a psychiatric injury, not by their direct involvement in an accident, but by witnessing the injury of someone close to them in that accident or its immediate aftermath. Before now Claimants in clinical negligence cases had argued that this included (or by analogy should include) cases where a doctor’s negligence led to a patient’s death or injury  that should have been prevented by adequate treatment.

By a 6 to 1 majority, the appeals in Paul v Royal Wolverhampton NHS Trust and the conjoined cases of Polmear v Royal Cornwall Hospitals NHS Trust and Purchase v Ahmed were all dismissed. The Court of Appeal’s order dismissing the claims was therefore upheld.

While each case was complex in its own right, at their core they all revolved around a Defendant that had failed to diagnose and treat a patient’s life-threatening medical condition. In each case, that patient tragically died and close family members suffered psychiatric injuries witnessing the death or its immediate aftermath.

The judgment confirms that, although a doctor owes a duty of care to protect the health of their patient, and will be liable for negligently failing to diagnose and treat a life threatening condition, the court was “not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

It was acknowledged that “witnessing the death from disease of a close family member can have a powerful psychological impact additional to the grief and deep distress caused by the fact of the death”. However “such an experience is not an insult to health from which we expect doctors to take care to protect us but a vicissitude of life which is part of the human condition”. 

The court reached its conclusion by identifying a crucial difference between cases involving “accidents” and those involving a disease or “medical crisis”.

An accident is a discrete event, which happens at a particular time and place. Whether someone was present is usually clear and straightforward to identify. Case law has also given context to whether a Claimant experienced the “immediate aftermath” of an accident. The judgment notes that a reasonably clear line can be drawn.

That is contrasted with clinical negligence cases, where symptoms of a condition or injury might develop over days, months or even years. There is often no singular event which could be compared to an “accident”. The majority decision was that it would be rare for a failure to treat a patient to amount to an “accident” which could cause nervous shock. Could it ever be the case in a medical setting? The Court noted that this issue “does not arise in the present cases, as none of them involves an accident in the relevant sense. Various hypothetical examples were, however, posed in argument such as a scenario where a doctor injects a patient with a wrong dose or a wrong drug, inducing an acute adverse reaction which is witnessed by a close relative. In our view, the issues raised by such examples are best left to be addressed in a case where they actually arise on the facts.”

As such, the possible exceptions to this rule remain to be seen. However, for these cases and any like them the law cannot “impose duties and liabilities on the basis of sympathy, however strongly felt”. They did not satisfy the legal requirements made clear by the judgment, for recovery of damages by secondary victims who suffer injury as a result of the death of another person. The appeals were therefore dismissed.  

Laura Johnson KC of Deka Chambers was led by Robert Weir KC (instructed by Phil Barnes of Shoosmiths LLP) in the lead case of Paul. A detailed review of the judgement and its impact will shortly be published by Deka Chambers.

About the Author

Hugh Rimmer was called in 2003 and specialises in clinical negligence and high-value, complex personal injury claims. In his clinical negligence practice he is instructed in cases involving a wide range of medical specialities on issues including misdiagnosis and delayed diagnosis, unnecessary/inappropriate treatment, surgical negligence, pharmaceutical negligence and failure to obtain informed consent.

Hugh has extensive experience in cases involving ophthalmic negligence, and is sought after in particular for cases involving informed consent for cosmetic ophthalmic surgery (including laser eye surgery and refractive lens exchange). He is recognised as a leading junior in clinical negligence by the Legal 500 and is an experienced practitioner who provides advice and representation at all stages of litigation.

Default Judgment Applications: Maritime Developments Ltd v Hindustan Oil Exploration Co Ltd [2023] 12 WLUK 426

In Maritime Developments Ltd v Hindustan Oil Exploration Co Ltd [2023] 12 WLUK 426 the claimant applied for default judgment, without notice, in respect of its claim for sums owing by the defendant Indian company; this application engaged questions of proper service when a certificate of service had never been received, through application of the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters 1965 (“Hague Service Convention”).

Background to the Claim and Procedural History

The background to the claim was the parties’ hire agreement under which the defendant hired equipment for an initial period of 90 days. This agreement was under English law and jurisdiction. Issues arose when the defendant informed the claimant that the hire equipment could no longer be located! The claimant countered, demanding its contractual price of £188,000 in rental costs and £593,000 representing the costs of replacing the lost equipment.

In terms of the procedural history, the defendant did not respond to the claimant’s demands resulting in the latter issuing proceedings and obtaining permission to serve them outside the jurisdiction.

In an added complication, the proceedings had to be served through the Indian Central Authority in accordance with the procedure in the Hague Service Convention at Article 5, (to which India are of course a contracting party) since India had filed a reservation under Article 10 objecting to other methods of service.

The claimant submitted the necessary documents to the Foreign Process Section of the High Court which acknowledged receipt, were therefore received in India and duly served on the defendant.

The issue that then arose was the claimant’s inability to obtain from the Indian authorities the confirmatory certificate of service, as provided for by Article 6 of the Hague Service Convention. Such an inability had persisted despite efforts to contact the authorities by telephone, post, email and in person.


The judgment of John Kimbell KC granted default judgment against this Indian company, without notice.

The starting point was that the claimant could only obtain default judgment pursuant to CPR r.12.3(1) if the defendant had been properly served.

Importantly, here, under Article 15 of the Hague Service Convention, the UK, as a contracting state, was free to declare that a judge… may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled – noting here the relevant conditions of Article 15(2) were all met:

  • the document was transmitted by one of the methods provided for in this Convention;
  • a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document; and
  • no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Further, the conditions of CPR r.12.12(5) were also all met:

(5) An application for a default judgment may be made without notice if —

  • the claim under the Civil Jurisdiction and Judgments Act 1982 or the 2005 Hague Convention or made in respect of a contract which provides that the court shall have jurisdiction to determine each claim made against the defendant to be served was served in accordance with rules 6.32(1) or 6.33(2B) as appropriate;
  • the defendant has failed to file an acknowledgment of service; and
  • notice does not need to be given under any other provision of these Rules.

 This judgment applied a number of established propositions regarding service in such circumstances:

  • Marashen Ltd v Kenvett Ltd [2017] EWHC 1706 (Ch), [2018] 1 W.L.R. 288, [2017] 7 WLUK 89: article 15 in these circumstances permitted the claim to apply for default judgment once six months since transmission had passed.
  • Punjab National Bank (International) Ltd v Vishal Cruises (Private) Ltd [2020] EWHC 1962 (Comm), [2020] 6 WLUK 539: the position in relation to deemed service under Article 15 was to offer protection even when there was no certificate of service; there was to be assumed service on the basis of transmission of the document and the lapse of time, and that was sufficient.

Concluding Remarks

Therefore, the court applied the wording of Article 15 strictly and without the need to offer any gloss on its drafting, that is, for example, that it would only be very rarely applied such as in situations where the defendant is positively seeking to evade service in bad faith. It is accordingly a helpful judgment for arguing the use of Article 15 in more routine circumstances.

The court also noted, as a further form of protection against any potential unfairness, that it would be open to the defendant to apply to set aside this default judgment if it had a defence with a reasonable prospect of success.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.

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