ANONYMOUS LITIGANT REFUSED RELIEF FROM SANCTIONS: “ALL THE CIRCUMSTANCES OF THE CASE MILITATE AGAINST GRANTING THE CLAIMANT RELIEF”

In ABC v Google LLC [2019] EWHC 3020 (QB) Mr Justice Pushpinder Saini refused an (anonymous) claimants application for relief from sanctions.  The case has some unusual features, however it does highlight the point that a relief from sanctions application cannot be used as an attempt to attack, or amend, the original order that a party has breached.

“all the circumstances of the case militate against granting the Claimant relief. This is a paradigmatic example of the conduct of a litigant which has prevented the court and the parties from conducting the litigation efficiently and at proportionate cost. The Claimant has shown no respect for the Orders of this Court.”

THE CASE

The claimant, whose identity was not known to either the court or the defendant, issued proceedings against the defendant.  An unless order was made on the 24th August 2018. The claimant did not comply and the action stood automatically struck out. The claimant applied for relief from sanctions.  Written submissions were filed in support of the application but the claimant did not attend.

THE JUDGMENT ON RELIEF FROM SANCTIONS

The judgment sets out the history of the matter and considered the claimant’s application for relief from sanctions.

1. 1. As I have identified above, the claim was struck out automatically on 1 July 2019 as a result of the unless order made by Nicklin J on 24 August 2018.

   2. Given that fact and the circumstances which led to the Order, I have no hesitation in rejecting the Application and accepting the Defendant’s submissions. Although the Claimant (in his detailed written submissions provided on 4 November 2019) describes the Defendant’s position as “an opportunistic or unreasonable opposition to the application for relief from sanction”, the Defendant was right to oppose the Application.

   3. In my judgment, the Application is simply the latest of the Claimant’s numerous attempts to circumvent his obligation to comply with paragraph 4 of the Order of Master Yoxall dated 4 December 2017. The Application and written arguments largely repeat the Claimant’s arguments which have been rejected by (i) Nicklin J on 24 August 2018, (ii) McGowan J on 12 November 2018, (iii) Master Davison on 30 May 2019, and (iv) Floyd LJ on 24 June 2019.

   4. In short, the Application is not a genuine application for relief from sanction but is, in substance, a further and improper attempt to:

(i) set aside the orders made by Master Yoxall and Nicklin J; and

(ii) to reargue that the Defendant’s Acknowledgment of Service is invalid, which is not only obviously wrong, but has already been rejected by McGowan J on 12 November 2018.

1. 1. In a genuine application for relief from sanction, the starting point must be that the sanction has been properly imposed and complies with the overriding objective. If no application to vary or revoke is made, it is not open for the applicant to complain that the order should not have been: see Mitchell v News Group Newspapers [2014] 1 WLR 795 at [45] per Lord Dyson.

      1. But having considered the written material submitted by the Claimant, it is clear to me that the substance of the Application is to argue that the Order of Nicklin J and paragraph 4 of the Order of Master Yoxall should not have been made in the first place.

   2. I refer, for example, to the following paragraphs of the Claimant’s evidence:

(a) Paragraph 6: “[paragraph 4 of the Order of Master Yoxall] inadvertently requires that the name and address of the Claimant be disclosed to the Defendant in circumstances where doing so would inevitably harm the very interests of the Claimant the order protects and the Claimant is seeking to protect.”

(b) Paragraph 7: “paragraph 4 of the anonymity order provides that the identity of the Claimant be disclosed to the Defendant, who has not only refused to disclose the identity of the anonymous poster of the offending materials, but automatically transfers details of court cases to the Lumen database….in the circumstances, there is a real risk of reposting the offending materials, thereby rendering the anonymity order meaningless and stifling the claim.”

(c) Paragraph 11: “In any event, since the anonymity order was made, there has been a material change of circumstances. The Defendant has failed to file a valid acknowledgment of service or defence and is therefore in default. It is believed that as a result, the Defendant is not entitled to defend the claim and privileged personal information of the Claimant required by the paragraph 4 of the order.”

(d) Paragraph 12: “These and other concerns reveal the conflicting requirements of paragraph 4 of the anonymity order, causing the Claimant to make applications for variation or revocation of the paragraph.”

(e) Paragraph 26: “As mentioned previously, paragraph 4 of the order is subject to pending applications for variation or revocation. It neither stipulates any timescale for compliance, nor provides any adequate safeguards against arbitrary abuse of the Claimant’s rights and violation of the anonymity order”.

1. 1. The Claimant therefore seeks to avoid complying with the Orders of Master Yoxall and Nicklin J. It is the opposite of a genuine claim for relief. It is, in substance, an improper attempt to circumvent his failed appeal against the Order of Mr Justice Nicklin.

   2. For completeness I add that even if it were a genuine application for relief from sanction, this is a plain and obvious case where that application for relief should be refused.

   3. Applying the criteria in Denton v TH White Ltd [2014] 1 WLR 3926:

(a) The Claimant’s breaches of the requirements of the Orders of Master Yoxall and Nicklin J are self-evidently serious and significant. In considering the “seriousness and significance of a breach”, it is also necessary for the court to look at the underlying breach which led to the making of the unless order: see British Gas Trading Ltd v Oak Cash & Carry Ltd [2016] 1 WLR 4530 at [39] per Jackson LJ.

(b) The disclosure requirements imposed by the Orders of Master Yoxall and Nicklin J are fundamental for the proper conduct of these proceedings. Instead, the claim has failed to progress at all, but has resulted in voluminous correspondence and applications from the Claimant and an inordinate amount of public resources and judicial time being incurred without any progress in the claim.

(c) In this regard, the observations of Lord Neuberger in Global Torch Ltd v Apex Global Management Ltd (No.2) [2014] 1 WLR 4495 at [23] – [25], emphasising the importance of compliance with court orders, are important:

“[23] The importance of litigants obeying orders of court is self-evident. Once a court order is disobeyed, the imposition of a sanction is almost always inevitable if court orders are to continue to enjoy the respect which they ought to have. And, if persistence in the disobedience would lead to an unfair trial, it seems, at least in the absence of special circumstances, hard to quarrel with a sanction which prevents the party in breach from presenting (in the case of a claimant) or resisting (in the case of a defendant) the claim. And, if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable, essentially for the same reasons. Of course, in a particular case, the court may be persuaded by special factors to reconsider the original order, or the imposition or enforcement of the sanction.

[24] Further, it is difficult to have much sympathy with a litigant who has failed to comply with an unless order, when the original order was in standard terms, the litigant has been given every opportunity to comply with it, he has failed to come up with a convincing explanation as to why he has not done so, and it was he, albeit through a company of which he is a major shareholder, who invoked the jurisdiction of the court in the first place.

[25] One of the important aims of the changes embodied in the CPR and, more recently, following Sir Rupert Jackson’s report on costs, was to ensure that procedural orders reflected not only the interests of the litigation concerned, but also the interests of the efficient administration of justice more generally…”

(d) There is no good reason why the default has occurred. The Claimant’s reasons are irrelevant to his failure to comply and without merit.

IV. Conclusion

1. In my judgment, all the circumstances of the case militate against granting the Claimant relief. This is a paradigmatic example of the conduct of a litigant which has prevented the court and the parties from conducting the litigation efficiently and at proportionate cost. The Claimant has shown no respect for the Orders of this Court.

2. The case cannot proceed in the way which the Claimant wishes without compliance with the orders of Master Yoxall and Nicklin J. I respectfully adopt what Floyd LJ said explained in paragraph 4 of his reasons for refusing permission to appeal. He explained that the Order of Nicklin J was “designed to preserve both parties’ right to a fair trial in accordance with Article 6 [ECHR]”. It would not be consistent with such rights to allow the Claimant to continue to hide his identity from the Defendant and the Court. His identity would moreover be protected from further disclosure in the first instance by the anonymity order.

3. The history amply demonstrates that the Application is essentially a thinly disguised collateral attack on the orders and judgments of Master Yoxall, Nicklin J, McGowan J and Floyd LJ.

4. I agree with the Defendant that not only should the Application be dismissed, but I will also certify it as totally without merit for the purposes of CPR 23.12. I will address the question of making a Civil Restraint Order (CRO) (as referred to in that rule) following any submissions or applications made in that regard. In particular, the lack of knowledge of the Claimant’s actual identity may pose challenges as to how such an order can be made and operate.

5. By way of postscript, I should add that following receipt of this judgment in draft, Mr. ABC asked for (and was granted by me) an extended period to make submissions. He failed to take that opportunity, and did not make any substantive submissions within the extended period. He then sought a yet further extension, which I was not willing to grant.

6. For the avoidance of any doubt, the claim remains struck out.