DEFENDANTS FAILED TO COMPLY WITH PEREMPTORY ORDER: RELIEF FROM SANCTIONS REFUSED

In Parkes v Hall & Ors [2021] EWHC 2824 (QB) Sir Andrew Nicol refused the defendants’ application for relief from sanctions following failure to comply with relief from sanctions.

 

 

THE CASE

The defendants were ordered to file further particulars of their defences. This was later made subject to a peremptory order.  The court found that the defendants had failed to comply with the order.  The judge then considered the defendants application for relief from sanctions and for an extension of time to comply.

THE JUDGMENT ON RELIEF FROM SANCTIONS

Should the Defendants be granted relief from the sanction of having their defences struck out?
    1. Only 1st Defendant has issued an application for relief from sanctions. However, as I understood Mr Samson, he was prepared for me to treat the application for relief as having been made by both defendants so far as that was necessary.
    1. As Mr Samson and Mr McLinden submitted, this brings into play the threefold test in Denton v T.H. White (De Laval Ltd Part 20 defendant) [2014] EWCA Civ 906, [2014] 1 WLR 1926, namely,
a. Is the breach serious or significant?
b. What is the explanation for the breach?
c. In all the circumstances where does the justice of the case lie?
    1. Although Mr McLinden did not concede it, in my view the breach was plainly serious and significant. I reach that view for the following reasons:
a. The starting point for consideration of an application for relief against the sanction of an Unless order is that the sanction was properly imposed. What was broken were Unless orders. They provided that in the event of breach the defences would be struck out without a further hearing.
b. The imposition of such orders followed two further orders by the court (in December 2020 and March 2021) when the Defendants had also been directed to put their pleadings in order.
c. All this has to be seen against the background which, as I have said, views libel actions as requiring particularly expeditious conduct.
    1. There is no evidence from the 2nd Defendant as to why his breach occurred, although it is obvious that he is a litigant in person.
    1. In support of his application for relief from sanctions (as well as extensions of time) the 1st Defendant has served a witness statement dated 4th October 2021.
    1. From this, the following points emerge to explain the delay:
a. The claim was complex overing 13 publications (so far as libel was concerned and a total of 4 causes of action.
b. There was a very large volume of documentation.
c. The 1st Defendant lacked funds to pay for legal assistance.
d. Defamation proceedings are particularly complex.
e. Preparation of the schedule required further investigation. These included the following:
i) Investigation of complaints to several different trading standards departments and a BBC inquiry concerning the Claimant’s Bioshield device.
ii) Sensitive inquiries into the Claimant’s extra-marital affairs, which required particularly sensitive handling, but which led to a witness statement from a woman referred to as W13.
f. The investigations referred to above have taken longer because of the COVID epidemic.
    1. Mr Samson submits that none of these are good explanations or sufficient to justify the lengthy delays by the 1st Defendant.
    1. I agree with Mr Samson in this regard. While defamation litigation is complex, the Master, as I have said, went to great pains to explain to the defendants precisely what their schedules should address. I also agree with Mr Samson that it is significant that this was the Defendants third opportunity to plead their defences (or fourth, if the original defences which had been filed, are taken into account).
    1. That is, of course, not determinative, but it requires the court to consider all the circumstances of the case to decide whether relief should be granted.
    1. As to this stage, Mr Samson submits:
a. CPR r.3.9 (which concerns relief from sanctions) itself emphasises the importance of parties complying with Rules, Practice Directions and Court orders (and see Denton at [32]-[34].
b. CPR The order in the present case was an ‘Unless Order’ and, as the Court said in Eaglesham v Ministry of Defence [2016] EWHC 3011 (QB), ‘Unless orders should mean what they say.’ (see [46]).
c. In Marcan Shipping (London) Ltd v Kefalas and another [2007] EWCA Civ 463[2007] 1 WLR 1864 at [14] Moore Bick LJ noted at [34] that the sanction of an Unless order took effect on default without further order of the Court. This meant:
i) It is unnecessary for the ‘innocent party’ to make an application to the court for the sanction to be activated: it takes effect automatically;
ii) The party in default must apply for relief from sanctions;
iii) Because the consequence is automatic, the court ought to take care before making an Unless order.
d. While the Court must take into account the 1st Defendant’s rights under the European Convention on Human Rights and in particular Article 6(1) (to a determination of his civil rights) and Article 10 (to freedom of expression), this did not prevent the Court regulating its own procedure. As Sharp J. said in Hayden v Charlton [2020] EWHC 3144 (QB) at [78],
‘In considering whether it would be appropriate to strike these actions out, I have borne in mind that doing so will deprive the Claimants of access to a court, a matter which it might be argued by the Claimants, has implications for their rights pursuant to Article 6(1) of the ECHR to a “fair and public hearing with a reasonable time and to an independent tribunal established by law.” However as Hale LJ (as she then was) said in Khalili v Bennett [2000] EMLR 996 at [50] when considering whether a decision to strike out a claim for delay deprived a party of his Art 6(1) rights,
“National laws are entitled to regulate their domestic procedures, and this includes prescribing timetables and steps which have to be taken within a limited period. If a claimant has not complied with these rules, then normally he will not be able to complain under Article 6″‘.
e. Mr Samson relied as well on the points which he made in relation to the 1st Defendant’s application for extensions of time.
    1. Mr McLinden emphasised that the 1st Defendant had substantially complied with the Master’s requirement to put his defence in order. With the further amendments which the 1st Defendant wished to make to his schedule, as set out on 10th September, it was now clear to the Claimant the case which he had to meet. It was further plain (as it had been from the original defences) that there were substantial issues which needed to be determined as between the Defendants and the Claimant.
    1. Mr McLinden also submitted that the Claimant, who had the assistance of experienced defamation counsel, was at fault in not seeking an earlier ruling as to the words complained of. It was plain that the Master thought meaning was critical and, as the Master said, the determination of meaning was not dependent on there being a defence.
    1. Mr McLinden submitted that it would be wrong to strike out the defences and enter judgment for the Claimant without resolving these fundamental issues. The rights of the Defendants to a determination of their obligations pursuant to Article 6(1) ECHR and their rights to freedom of expression under Article 10 ECHR should be respected.
    1. In my view the submissions of Mr Samson are to be preferred.
i) The Master gave clear instructions as to what the schedules had to contain. He coupled this with an Unless Order. Substantial compliance was not required: detailed and precise compliance was. The 1st Defendant’s schedule did not comply with this standard. I do accept that substantial compliance would be material to the third Denton stage. But the difficulty here for the 1st Defendant is that the gaps in the document served on 8th September were substantial as the amendments of 10th September showed.
ii) The procedural background was important. The two previous requirements of the Master had not been observed. I agree with Mr Samson that the Master was giving the Defendants a final opportunity to put their pleadings in order. Mr Samson was right to characterise this as the Last Chance Saloon.
iii) I also agree with Mr Samson as to the 1st Defendant’s delay in providing his schedule and that this delay should not be excused.
iv) I do not agree that the Claimant is to be criticised for not seeking a ruling on meaning. While such rulings are often helpful, they are not invariably so and, where a defendant is going to advance a plea of truth (or some other defence which is dependent on the meaning which the words are said to bear), it is often sensible to defer any ruling on meaning until there is a properly pleaded allegation of the rival contentions as to meaning.
v) As to the ECHR arguments, what Sharp J. and Hale LJ said are relevant. Sharp J and Hale LJ were there specifically concerned with the Claimants’ rights under Article 6 ECHR, but in my judgment, the additional rights of these Defendants under Article 10 ECHR would not significantly change matters.
vi) I also agree with Mr Samson that it is relevant the application for relief was only made by the 1st Defendant on 4th October, whereas such an application should be made promptly.
    1. It follows that the 1st Defendant’s application for relief against sanctions is refused.
    1. There was no application for relief from sanctions by the 2nd Defendant, but, on Mr Samson’s concession, I have considered whether he should be granted relief. I have concluded that he should not. His breach (although only in relation to paragraph 2 of the Master’s Unless order) was also serious and significant. He has advanced no explanation for the default, save so far as the points made by the 1st Defendant apply also to him. In my view there is no adequate explanation for the 2nd Defendant’s breach. As to the third of the Denton questions, for all of the reasons which I have given in relation to the 1st Defendant, I conclude as well that the 2nd Defendant should also be refused relief from sanctions.
Further conduct of the application:
    1. Since I shall be striking out the defences anyway, the Claimant’s application in February for striking out the defences or summary judgment is moot (save possibly as to costs).
    1. For the purpose of deciding whether the Defendants have complied with the Master’s Unless order it has not been necessary for me to determine the meanings to be attributed to the publications complained of. So far as Mr McLinden submitted that I was obliged to do so, I reject his argument. In my view it has been possible to decide whether the Master’s order has been broken and whether relief against sanctions should be granted without determining the meanings of the words complained of.
    1. I shall invite the parties to consider what, if anything, of the other matters which I was due to deal with at this hearing still needs to be resolved.
Summary of Conclusions
    1. In summary I conclude:
a. The 1st Defendant’s applications for extension of time to comply with paragraph 2 of the Master’s Unless order are refused.
b. The 1st Defendant is in breach of paragraph 2 of the Master’s Unless order both as to timing and as to substance.
c. The 2nd Defendant is in breach of paragraph 2 of the Master’s Unless Order as to substance.
d. The 1st Defendant failed to comply with paragraph 4 of the Master’s Unless order.
e. The 2nd Defendant did comply with paragraph 4 of the Master’s Unless order.
f. The 1st Defendant’s application for relief from sanctions is refused.
g. It follows that the 1st Defendant’s defence is struck out in accordance with paragraphs 2 and 4 of the Master’s Unless order.
h. The assumed application by the 2nd Defendant for relief against sanctions is also refused.
i. It also follows that the 2nd Defendant’s defence is struck out for failure to comply with paragraph 2 of the Master’s Unless order.
j. I shall invite the parties to try to agree an order which reflects this draft judgment.