A PANDEMIC DOESN’T STOP YOU TICKING A BOX: DEFENDANT’S APPLICATION FOR ADJOURNMENT OF DEFAULT JUDGMENT APPLICATION REFUSED

In Glenn v Kline [2020] EWHC 3182 (QB) Mr Justice Nicklin refused the defendant’s application for an adjournment of an application for judgement in default of acknowledgement of service.  The reasons provided by the defendant, including COVID, did not provide an explanation as to why the acknowledgment of service could not be filed.

“The Covid-19 pandemic has challenged aspects of the delivery of the administration of justice in this country, but it has not caused the system to grind to a halt. Courts have continued to operate, and lawyers have continued to advise and represent clients”

THE CASE

The claimant brought an action for defamation against the defendant.   The defendant did not acknowledge service and the claimant applied for default judgment. That application was being considered by the judge. The defendant applied for an adjournment of the application. The Defendant’s application was refused.

 

THE JUDGMENT ON THIS ISSUE

16. The hearing was conducted remotely – via MS Teams – on 13 November 2020. At the commencement of the hearing, the Defendant made his application for the default judgment application to be adjourned for at least 4 weeks. The grounds of this application – foreshadowed in the attachment to his email to the Court on 10 November 2020 – were:
i) that he had insufficient time to prepare for the hearing and the Claimant’s solicitors had been unwilling to discuss a “reasonable timeline” to enable the Claimant to prepare;
ii) that he was facing other claims which he submitted might need to be consolidated with the claim brought by the Claimant; and
iii) that the Covid-19 pandemic had impeded his access to law libraries and made contacting the Court difficult.
    1. In relation to the first ground, the Defendant stated that he had been “so busy with other matters that [he] had not yet had time to fully read [the] pleadings, obtain legal representation, or otherwise become ready for this hearing“. He placed particular reliance on his having been engaged in other court cases and hearings in the period from 20 October 2020. The Defendant has provided very limited information about these cases. From the case numbers he has provided, there appear to be two cases. One is said to relate to “IP rights” and the other to “privacy”. The Defendant refers to the “privacy” claim as having a “penal notice”. Ms Marzec’s researches identified the “privacy” claim as a claim brought by Fulham Football Club Limited against the Defendant (CL-2020-000750). There is a judgment of Butcher J available on BAILII from 30 October 2020 relating to a hearing on 29 October 2020 ([2020] EWHC 2907 (Comm)). Ms Marzec points out that the Judge records that the Defendant did not attend the hearing: [4]. The parameters of that litigation are summarised in [2] and appear to be proceedings brought against the Defendant for alleged breaches of an injunction order dated 23 November 2018. A hearing of that committal application was listed for 2 days on 2-3 November 2020, and Butcher J directed that that hearing should take place in private. This 2-day hearing appears in the Defendant’s list of commitments in the period from 20 October 2020. I do not know what has happened at that hearing. The Defendant’s written note suggests that there was a further hearing on 13 November 2020, and the Defendant did mention at the hearing that he was anxious to get away to attend another engagement.
    2. I am wholly unpersuaded that the Defendant has had insufficient time to enable him to prepare for this hearing or, for that matter, to read the Particulars of Claim and file an Acknowledgement of Service. It is to be remembered that the Acknowledgement of Service form is a very straightforward single page document. A defendant is required to indicate – by ticking the relevant box – whether s/he intends to defend all of the claim, part of the claim, or whether s/he intends to contest the jurisdiction of the court. The form requires to be dated and signed. It contains the following warning:
“If you file an acknowledgment of service but do not file a defence within 28 days of the date of service of the claim form, or particulars of claim if served separately, judgment may be entered against you.”
  1. I accept that, before ticking any of the boxes, the Defendant needed to read and consider the Claimant’s claim. The Particulars of Claim are contained in 47 paragraphs and run to 24 pages, but they are not complicated or difficult to understand. Essentially, they set out, in chronological order, the communications or posts of the Defendant which the Claimant contends defamed him or amounted to harassment. The Defendant’s claim that he has not had time “to fully read [the] pleadings” is difficult to accept as credible. He has had from, at least, 4 August 2020 to consider the Particulars of Claim and, on 11 August 2020, in an email to the Claimant’s solicitors, the Defendant stated: “I’ve read your claim but not yet had time to obtain counsel.” As to any attempts to obtain legal advice and representation, the Defendant has not provided any details or supporting evidence. It is difficult to accept that, had the Defendant made genuine efforts to obtain legal representation since early August 2020, he would not have been successful or at least be in a position to provide evidence of his attempts. The recent activity concerning other court cases only spans the period from 20 October 2020. The Defendant does not adequately explain why he was unable properly to consider the Particulars of Claim and file an Acknowledgement of Service prior to that date.
  2. As to the second ground, the Defendant has provided very limited information and it is impossible for me to assess whether there are other claims in which there is a sufficient overlap of issues and/or parties to make it arguable that there ought to be some consolidation. That assessment is further hindered by the fact that, as he has not even filed an Acknowledgement of Service indicating an intention to defend the proceedings, or a Defence indicating on what basis he might do so, it is impossible to identify the issues that would arise in these proceedings. Although the Defendant has been fairly consistent in his communications with the Claimant’s solicitors, and in his submissions to the Court at the hearing, that he wishes to defend his allegations, these statements have been made at a high level of generality. The Court is in no position to assess whether the issues/parties in one set of proceedings are such as to raise a real question as to whether the claims should be consolidated without the issues being identified clearly in the relevant actions.
  3. Finally, the impact of the Covid-19 pandemic. Insofar as compatible with the proper administration of justice, the Court will take into account the impact of the Covid-19 pandemic when considering applications for the extension of time for compliance with directions, the adjournment of hearings, and applications for relief from sanctions: CPR PD 51ZA §4. The Defendant has argued that the pandemic has had an impact on the time he has had to prepare. I simply cannot accept that submission. The Application Notice was issued on 8 October 2020 and provided to him that day. On 20 October 2020, the Defendant was notified that the hearing would take place on 13 November 2020. In total, the Defendant has had 5 weeks to prepare for a hearing, at which the only real issues would be whether the conditions for the grant of judgment in default were met and, if so, what relief the court should grant. In terms of the opportunity to obtain advice and representation in relation to the claim, the Defendant has had since 4 August 2020, i.e. some 3 months. Even making due allowance for the current circumstances, that is ample time within which to seek legal advice and/or representation. The Covid-19 pandemic has challenged aspects of the delivery of the administration of justice in this country, but it has not caused the system to grind to a halt. Courts have continued to operate, and lawyers have continued to advise and represent clients. The Defendant has complained about difficulties in contacting the Court. It is not clear why he needed to do so. Filing an Acknowledgement of Service and/or a Defence is straightforward.
  4. Overall, the Defendant has not persuaded me that the Court should grant an adjournment. His grounds, both individually and collectively, do not provide an adequate justification for such an adjournment. The history of this claim since it was issued shows a lack of genuine engagement and a degree of prevarication. From a person who had positively invited the Claimant to sue him, and who apparently relished being provided with an opportunity for a Court to adjudicate on his claims, his behaviour after the Claim Form was served is difficult to comprehend. To achieve his stated aim of legal proceedings in which the truth of his allegations and his evidence would be tested, all he had to do was file an Acknowledgement of Service and then a Defence.
  5. No doubt reflecting a desire not to be vulnerable to the charge that he had obtained a “gagging” order against the Defendant by taking advantage of some technicality or the Defendant’s inexperience as a litigant in person, the Claimant has shown a great deal of restraint by allowing the Defendant a substantial period after the deadline for the Acknowledgement of Service had passed before finally making an application for default judgment. His solicitors could not have been clearer in their correspondence in explaining to the Defendant what he was required to do. The responsibility for judgment in default being granted lies entirely with the Defendant; his conduct is difficult to fathom