Judgment in default applications and absent defendants (Bourne v Nejad)

The court considered the principles of whether an application for a default judgment should be considered in the absence of a defendant together with the process the court should follow if the application is heard and the defendant in question is a litigant in person. In a claim for libel and harassment, the claimant was successful with the default judgment application and the normal rule that the claimant was entitled to judgment based on their unchallenged particulars of claim applied. Accordingly, the court granted the claimant injunctive relief and costs on an indemnity basis. Written by Sandip Patel QC, partner, at Scarmans Solicitors.

Bourne v Nejad [2019] EWHC 2605 (QB), [2019] All ER (D) 53 (Oct)

What are the practical implications of the case?

The judgment is important for two reasons:

First, it sends a clear message that the courts, pursuant to the overriding objective, will not indulge a defendant litigant in person who has failed to engage meaningfully in the proceedings, and that a robust stance shall be taken

Secondly, it builds on a small body of cases decided by Mr Justice Warby providing valuable guidance as to how a court should proceed when faced with such a defendant on an application for default judgment

What was the background

The claimant was a solicitor instructed by Linacre College, Oxford University to assist them in relation to disciplinary proceedings against the defendant, Nejad. The defendant’s subsequent conduct towards the claimant resulted in claims in libel and harassment arising from webpages and emails containing offensive content.

In June 2018, the claimant, on notice, applied for and obtained an interim injunction to which the defendant made no response other than confirming by email receipt of the application. The following month, the claimant issued proceedings in the High Court seeking a final injunction and costs. The claim form, particulars of claim and injunction were served by email to the defendant, which he acknowledged. Thereafter, the defendant frustrated attempts to accept personal service, and so the claimant effected postal service by order of the court.

The defendant failed to file an acknowledgment of service or defence to the claim within the time limit set out in CPR 15.4 and had not done so by 4 October 2019—the hearing date of the claimant’s application for judgment in default. The defendant had chosen not to attend a preliminary hearing date in January 2019, although he continued to send harassing emails to the claimant and his solicitor.

The defendant did not attend the October 2019 hearing and was not represented.

For the court to have jurisdiction pursuant to section 10 of the Defamation Act 2013 (DA 2013), it had to consider whether the defendant was the ‘author’ or ‘editor’ of the webpages.

What did the court decide?

Proceeding in the defendant’s absence

Mr Justice Steyn in determining whether to proceed in the defendant’s absence and the merits of the application had regard to the prominent decision of Mr Justice Warby in Pirtek (UK) Limited v Robert Jackson [2017] EWHC 2834 (QB), an application for default judgment in a claim for libel and malicious falsehood and summary relief pursuant to sections 8 and 9 of the Defamation Act 1996 (DA 1996), in which the defendant did not attend and was not represented.

The court held, applying Pirtek, that it was just and convenient to proceed in the defendant’s absence. The court resolved that its approach was permissible in principle, subject to its discretion—CPR 23.11, and that the exercise of its power to proceed in the absence of a party should be compatible with the overriding objective.

In so doing, the court was reassured that Mr Justice Warby in Pirtek had the benefit of having considered applications for default judgment in similar circumstances on two previous occasions, and so his reasoning was to be preferred (Sloutsker v Romanova [2015] EWHC 545 (QB), [2015] All ER (D) 103 (Mar) and Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB, [2016] 1 All ER 1006)).

Accordingly, the court, as in Pirtek, adopted a two–stage approach, considering—

1. whether the defendant had received proper notice of the hearing and the matters to be considered at the hearing
2. if so, whether the available evidence as to the reasons for the litigant's non–appearance supplied a reason for adjourning the hearing. The court also had to consider the effect of section 12(2) of the Human Rights Act 1998 (HRA 1998), and the right to freedom of expression

Having done so, the court found that the defendant had been given proper notice of the application and hearing date, and that it had no evidence, and nothing from the defendant, for an adjournment or that it would have been unfair to proceed in the defendant’s absence. The defendant had not asked for an adjournment and had failed to engage in the proceedings. He had not filed an acknowledgement of service, defence or any evidence. He had chosen to absent himself from previous hearings.

Judgment in default

The court found that the necessary conditions pursuant to CPR 23, as required by CPR 12.3 (1) and CPR 4(2), and in accordance with CPR PD 12, para 4.1, had been met. The defendant had not filed an acknowledgement of service and defence. Therefore, the claimant was entitled to judgment based on his unchallenged particulars of claim and evidential examination of the merits would be contrary to the overriding objective in any event. The court confirmed that should be the normal approach and saw no reason to depart from it.

Jurisdiction

The court held that it had jurisdiction under DA 2013, s 10(1) not because, as argued by the claimant, the application was for summary relief but on the basis of the case stated by the claimant in his particulars of claim which led to the clear conclusion that the defendant was the ‘author’ or, at the very least, an ‘editor’, and had the matter gone to trial the court’s decision would have been the same nonetheless. The fact that the defendant claimed in an email that he was not responsible for the content of the webpages was immaterial in the light of Pirtek and lacked credibility in any event.

Substantive claims

The court found that the particulars of claim disclosed good factual causes of action for libel and harassment and so justified the court entering default judgment for a final injunction.

On the claim of libel, the description of the claimant, a solicitor, as ‘dirty’ was an obvious imputation of dishonesty and defamatory at common law and under DA 2013, s 1.

On the claim of harassment, the court was satisfied that, from an objective standpoint, the defendant’s conduct was persistent, deliberate and calculated to cause alarm or distress and was oppressive, and unacceptable to such a degree that it would sustain criminal liability (Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB), [2010] All ER (D) 191 (Oct) and LJY v Persons Unknown [2017] EWHC 3230 (QB)). Evidence of harassment comprised emails from the defendant stating that he ‘will show you no such mercy’ and that ‘you're putting your career, your reputation and your firm's reputation on the line’, and an email containing the single word ‘pussy’.

Human Rights

The court was satisfied that having had regard to the right to freedom of expression in accordance with HRA 1998, s 12(4)), any interference with free speech caused by the injunctive relief was justified and proportionate. There was a public interest in protecting the claimant's professional reputation against false and damaging defamatory allegations and protecting the claimant from further harassment by the defendant.

Accordingly, the court granted the claimant’s application and made costs order on an indemnity basis summarily assessed in the sum of £27,750 against the defendant.

Case details

• Court: High Court, Queen’s Bench Division
• Judge: Steyn J
• Date of Judgment: 7 October 2019

This analysis was written by Sandip Patel QC , a partner at Scarmans Solicitors, and was originally published on Lexis^®PSL Dispute Resolution on 16 October 2019.