RELIEF FROM SANCTIONS REFUSED WHEN DEFENDANT FILES AN INADEQUATE PLEADING

The Denton principles were considered in an unusual context by Mr Justice Julian Knowles in Oliver v Shaikh [2019] EWHC 3389 (QB).

THE CASE

The claimant is a Circuit Judge. He brought an action for harassment against the defendant. The defendant had appeared as a litigant in person against him in the Administrative Appeals Tribunal in 2014.  The claimant’s case was that, since 2016, the defendant had harassed him and his family through an internet website/blog. The defence consisted of a bare denial and a counterclaim. The claimant sought an order that the defence and counterclaim be struck out, summary judgment on the claim and a final injunction preventing the publication of further material online.

THE STRIKE OUT APPLICATION AND RELIEF FROM SANCTIONS

The strike-out application

1. 1. I am satisfied that this is a proper case to strike out the Defendant’s Defence and Counterclaim for all of the reasons advanced by the Claimant, and for the following reasons.

   2. I am very aware that the Defendant is representing himself, and is therefore at a disadvantage to the Claimant. However, that does not absolve him from the requirement to comply with the CPR and the pleading rules contained within them. The position of unrepresented parties was considered by the Supreme Court in Barton v Wright Hassall llp [2018] 1 WLR 1119, [18] where Lord Sumption JSC said this:

“18 … In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR r 1.1(1)(f). The rules do not in any relevant respect distinguish between represented and unrepresented parties. In applications under CPR 3.9 for relief from sanctions, it is now well established that the fact that the applicant was unrepresented at the relevant time is not in itself a reason not to enforce rules of court against him … The rules provide a framework within which to balance the interest of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step which he is about to take.”

1. 1. I have set out the details of the Defendant’s Defence and Counterclaim. It is obvious that neither of them complies with the CPR. The Defence is no more than a bare denial of the Claimant’s case, coupled with an attack on the judgment of the AAC in 2014 and its consequences, including matters that on no rational view have anything to do with this case, eg, [5(e)]:

“The judgment he gave breached my human rights by … (e) having me convicted of a crime I should never had been charged with or a crime I committed.”

1. I do not accept the Defendant’s submission that he could not be expected to have pleaded any more than a bare denial. As I have said, he is an intelligent man. The form he was sent contained, under the heading ‘How to fill in this form’, instructions as to what to write, eg, ‘you must state which allegations in the particulars of claim you deny and your reasons for doing so …’. The PoC run to 17 pages. There was much in the PoC which the Defendant could not dispute, including his employment history; his dealings with the ISA/DBS and AAC; his trial and conviction before Isleworth Crown Court; and many other things. Other matters were pleaded in respect of which the Defendant now advances (apparently) a positive case, eg, that he was not responsible for one or more of the letters to Charles J, but about which the Defence is silent. I will return to this point later. Many more points could be made. It is not necessary to do so. The Defence obviously does not comply with CPR r 16.5. Mr Silverstone was right to submit that it is precisely the sort of Defence which falls within CPR PD 3A, 1.4 and should be struck out.

2. I am equally clear that this is not a case where I should grant the Defendant relief from sanctions for failure to comply with the CPR and give him the opportunity to re-plead his Defence. He did not make such an application and indeed, as I have said, he maintained that he had done all he could be expected to do. However, in fairness to him, I have considered the matter as if he had. I have well in mind the Mitchell/Denton principles and the required three-stage approach: Mitchell v News Group Newspapers Ltd (Practice Note) [2014] 1 WLR 795 and Denton v TH White Ltd (Practice (Note) [2014] 1 WLR 3926.  Firstly, the breach of the Rules was serious and substantial. There has been a wholescale failure to comply with them. Second, the default occurred because the Defendant is labouring under the misapprehension that he cannot and should not be expected to say more than he has said. As I have said, he can, and should. Third, I need to consider all the circumstances. The Defendant has had it pointed out to him several times beginning in February this year that his Defence was deficient, but he has declined to take any step to rectify matters. In these circumstances, the balance comes down firmly against allowing him the opportunity now, in late 2019, to re-plead his Defence.

3. I therefore strike out his Defence pursuant to all three limbs of CPR r 3.4(2).

4. I need say little about the Counterclaim. It is obviously deficient, abusive and vexatious and should be struck out under all three limbs of CPR 3.4(2).