SERVICE BY ALTERNATIVE MEANS, THE ABSENT DEFENDANT, DEFAULT JUDGMENT AND COSTS: ABSENCE OF DEFENDANT DOESN’T CAUSE THE COURT TO MISS A GEAR

November 14, 2017 · by · in Adjournments, Costs, Default judgment,, Judgment

In Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) Mr Justice Warby considered several procedural issues.  These are of wider interest, particularly issues relating to the method of service, proceeding in the defendant’s absence, summary judgment and costs.

 

THE CASE

The claimant brought an action for defamation against the defendant. The defendant made various allegations via a website. The claimant could not find an address for service. The Master gave permission to serve by other means.  The defendant did not respond to the proceedings. The judge held it was clear from the website that the proceedings had been received.

 

 THE METHOD OF SERVICE

The judge set out the method of service that had been allowed by the Master.

  1. On 19 April 2017 Mr Newman sent a letter of claim to Mr Jackson, using the BT email address. Mr Jackson did not reply, but the letter was posted on the Website together with a lengthy riposte (“The April 17 Riposte”). The April Riposte contained a section entitled “The full Defamation Claim from Alex Newman of Irwin Mitchell on behalf of Pirtek UK and my initial response”, accompanied by a considerable body of additional text in reply to the complaints made in the letter of claim

  2. The claim was elaborated and expanded on in July 2017 by means of two documents settled by Counsel: a draft Amended Claim Form, and Particulars of Claim. These identified and set out 55 separate statements complained of: 34 published on the Website, 18 via Twitter, a further 2 on Facebook, and one contained in the March 17 Email.

  3. On 28 July 2017 Pirtek filed an application notice seeking (i) permission to amend the Claim Form, (ii) dispensation from the requirement to provide a postal address for the defendant pursuant to 16 PD 2.5, and (iii) “permission to serve the Claim Form, Particulars of Claim and all other documents by an alternative method”.

  4. The reasons given for this last application were that the claimant and its solicitors did not have Mr Jackson’s address for service and, despite efforts to find it, did not anticipate being able to do so. The efforts included those of April 2016, identified above. Other efforts to identify a postal address for service had been unsuccessful. This application was supported by a witness statement of Mr Newman.

  5. On 31 July 2017 Master McCloud granted Pirtek’s application, giving the company permission to serve the Amended Claim Form, Particulars of Claim and “all further documents that may be required to be served during the course of these proceedings” by any of three means: by first class post to an address in Hitchin that appeared to belong to Mr Jackson’s daughter (“the Hitchin Address”); to the BT Email address; and via a section of the Website called “contact Bob”. The order made provision for the deemed date of service of the Claim Form and Particulars of Claim, depending on which method of service was adopted. It gave Mr Jackson “14 days after deemed service of the claim form in which to file an acknowledgement of service, file an admission or file a defence.”

PROCEEDING IN THE ABSENCE OF THE DEFENDANT

The defendant did not respond and the judge had to consider whether to proceed in the absence of the defendant.

Proceeding in the absence of the respondent

  1. This is permissible in principle, but the court has a discretion: CPR 23.11. The Court must exercise its power to proceed in the absence of a party in a way that is compatible with the overriding objective. I had to consider this issue in somewhat similar circumstances two years ago, in Sloutsker v Romanova [2015] EWHC 545 (QB) [2015] EMLR 27 [22]-[23] (July 2015) and again in Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB) [2016] EMLR 2 [14]-[16] (September 2015). Both were applications for default judgment where the defendant was a litigant in person who had failed to appear without giving a reason, and the relief sought fell within the scope of s 12(2) of the Human Rights Act 1998.

  2. I took 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. I considered it necessary to bear in mind that the effect of s 12(2) is to prohibit the Court from granting relief that “if granted, might affect the exercise of the Convention right to freedom of expression” unless the respondent is present or represented or the Court is satisfied that “(a) the applicant has taken all reasonable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.” I adopt the same approach in this case.

  3. Section 12(2)(b) of the Human Rights Act is clearly inapplicable in the present case. But I am satisfied that s 12(2)(a) applies. I have already recounted the efforts made to serve Mr Jackson. Service has been effected pursuant to the Order of Master McCloud. It is quite clear that he knows the nature of the claims, as set out in the letter of claim. He has offered open responses to those claims, via the Website. It is also clear that he has read the Particulars of Claim, because matter has been posted on the Website that could only have been gleaned from reading that document. It is wholly implausible that anyone else had access to the document and a motive to post such information. It follows that Mr Jackson is aware of the claim and its basis and its detail.

  4. I am also satisfied that he has been given proper notice of these applications and of the evidence that is relied upon. At this hearing, I have been shown copy email and paper correspondence which satisfies me that the application notice, draft order and supporting witness statemen were emailed to the BT Email address on 18 September and posted to the Hitchin Address on 2 October 2017. Pirtek has undertaken, through Ms Addy, to verify by witness statement that this correspondence was sent as it appears to have been sent. It is on that basis that I proceed.

  5. There is nothing at all before me, by way of evidence or otherwise, that suggests that I ought to adjourn or that it would be unfair to proceed in Mr Jackson’s absence. He has not asked for any adjournment. My conclusion is that he is not here because he has decided not to attend, despite having full knowledge of what is going on. That is the fair and proper conclusion on the basis of the evidence and information available today. In the Open Letter he said that “any future communication between us I will be publishing via open letter as I now wish the Public, the franchise industry, the Hydraulic Industry, the Press and the Legal Profession to be judge and jury”. He did thereafter say, in the April 17 Riposte that he was “fully prepared to defend my claims in a civil court for a judge based on the evidence to legally decide what is true.” But he has clearly changed his mind since then. He has not taken any of the many opportunities available to engage with these proceedings, and put evidence before the court.

  6. I add that despite these conclusions I have decided to to hand down this judgment in written form, and to direct the claimant to serve a copy on Mr Jackson along with the resulting order. In that way, he will not be hampered or delayed in getting to know my reasons. Anyone has the right to obtain a transcript. But Mr Jackson is a litigant in person who lacks or may lack the knowledge or the financial resources to obtain a transcript. Proceeding in the way I have described will give him an opportunity to consider and, if he thinks it appropriate, to make a timely application to the Court for Pirtek’s applications to be re-listed pursuant to CPR 23.11(2), or to set aside the default judgment which I propose to enter. I do not suggest that it would be appropriate to make either application. My point is that in this way Mr Jackson will be able to give informed consideration to those options, in full knowledge of the basis on which judgment has been entered against him, and will have no reason to delay any application he may choose to make. All this buttresses my view that it is just and convenient to go ahead now, despite the absence of Mr Jackson.

JUDGMENT IN DEFAULT

It was necessary for the claimant to apply for default judgment.

Judgment in default

  1. I accept the evidence of Mr Norman, and the submission of Ms Addy, that the conditions set by r 12.3(1) of the Civil Procedure Rules for obtaining judgment in default of an acknowledgment of service are met: the time for filing an acknowledgement of service or defence has expired, and neither has been filed.

  2. This is not a case in which default judgment can be obtained by filing a request pursuant to CPR 12.4(1). The claimant has, as required by CPR 12.4(2), made an application pursuant to CPR 23. On such an application, the Court will enter “such judgment as it appears to the court that the claimant is entitled to on his statement of case”: CPR 23.11(1). This enables the Court to proceed on the basis of the claimant’s unchallenged particulars of claim, which is normally the right approach, as evidential examination of the merits will usually involve unnecessary expenditure of time and resources and hence be contrary to the overriding objective: Sloutsker v Romanova [84], Brett Wilson v Persons Unknown [18]. Both those judgments contain some discussion of the possibility of departing from that normal approach. But I see no reason to do so here.

COSTS

Costs

  1. Pirtek seeks an order for its costs of the action as a whole, including these applications. Pirtek is certainly the successful party. There is no reason why the ordinary rule should not apply, subject to this: some of the costs incurred relate to claims for remedies which have in the event not been pursued or not been granted. It is true that most of the work and cost will have been devoted to the issues of liability. But applying CPR 44.2 and the established principles in relation to cases where a claimant has lost on some issues, I consider the appropriate course is to make some reduction, and to award Pirtek 90% of its costs.

  2. Pirtek seeks a summary assessment of its costs. This is a course which I am bound to consider: 44PD 9.1. The general rule as to summary assessment, set out in 44PD 9.2, is that where a hearing which has lasted not more than one day disposes of the claim “the order may deal with the costs of the whole claim, unless there is good reason not to do so.” The costs here are not enormous. I have a statement of costs which goes into enough detail. There is no good reason not to make an assessment now, and I shall do so. I do not see good reason to assess the costs on an indemnity basis.

  3. The total sum claimed, which does not include VAT, is just above £63,000. The hourly rates are reasonable. There has been an appropriate amount of delegation by the partner responsible, who has himself spent a modest amount of time on the matter. I acknowledge the complexity of the case, but still consider that an excessive amount of time has been spent working on documents. Over 95 hours of solicitors’ time is claimed for drafting, reviewing, analysing and revising various documents. I disallow 12 hours of that which, applying the relevant hourly rates, brings the total bill down by £3,650 to £59,500. Applying the 90% figure above yields a sum of £53,560.

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