Practice

Claimant obtaining judgment in default of defence - defendant asserting counter-schedule of loss on assessment of damages - issues raised in mitigation of damages not necessarily precluded by striking out of proposed defence Pugh v Cantor Fitzgerald International: CA (Lord Justice Ward and Mr Justice Evans Lombe): 7 March 2001The claimant brought an action against his former employer, the defendant, for wrongful dismissal and set out the amount claimed in a schedule of loss.

Judgment was entered for the claimant in default of defence.

The defendant's application to set aside that judgment was dismissed.

In the counter-schedule ordered by the master, the defendant repeated the allegation, first raised in a proposed defence which the master rejected, that the claimant had been guilty of gross misconduct disentitling him to damages and pleaded that the claimant had failed to mitigate his loss.

The master struck out those parts of the counter-schedule which referred to mitigation of damages.

The judge allowed in part the defendant's appeal from that order and the claimant appealed.

Andrew Stafford QC (instructed by Hobson Audley) for the claimant; Damian Brown (instructed by Olswang) for the defendant.Held, dismissing the appeal, that the replacement of RSC order 13 rule 9 by Civil Procedure Rules 1998, rule 13.3(1) did not have the effect that the fact-finding exercise involved in determining the merits of the case for the purpose of setting aside a judgment was necessarily a determination giving rise to an estoppel; that the central question was whether the same issue was 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; and that, in the circumstances, the judge had been correct in concluding that what the defendant had sought to aver on the issue of mitigation was a different issue.