Abdullah & Ors v Yusuf

Where a defendant fails to comply with an unless order requiring procedural documents, the defence may be struck out and judgment entered, subject to assessment of the relief properly available on the pleaded causes of action.

In a claim under the Fatal Accidents Act 1976, loss of dependency requires sufficient evidence of pecuniary loss. Aggravated and exemplary damages cannot be recovered in proceedings brought by dependants where the deceased’s estate is not a party. Bereavement damages are awarded at the statutory sum applicable when the cause of action arose.

The claimants were the widow and four children of Ahmed Mahmood, who was killed in Somalia. They brought proceedings against Abdullahi Yusuf, alleging that the killing was carried out by persons acting under his authority and command.

The Master had determined that the English court had jurisdiction. He later made an unless order requiring the defendant to serve specified documents, failing which the defence would be struck out and judgment entered. The defendant did not comply and did not attend the trial. The court therefore had to determine liability and assess claims for dependency loss, aggravated and exemplary damages, bereavement damages, and costs.

1. The defendant had been properly served with the Master’s order and had adequate notice of the proceedings and the requirement to file documents. Since he failed to comply and did not appear, the defence was struck out and judgment was entered for the claimants.
2. The evidence did not establish sufficient pecuniary loss to support a claim for loss of dependency by the widow or children. No award was made under that head.
3. The claim was brought under the Fatal Accidents Act 1976, and the estate of the deceased was not a party. The claim for aggravated and exemplary damages therefore could not succeed and was dismissed.
4. The claimants were entitled to bereavement damages under section 1(a) of the Fatal Accidents Act 1976. As the cause of action arose after April 2002, the applicable statutory sum was £10,000, which was awarded.
5. It was appropriate in the interests of justice to assess costs summarily. The likely difficulty of enforcing the judgment in Puntland, together with the claimants’ acceptance of a rough and ready assessment, justified avoiding a further detailed assessment. Costs were assessed at £20,000, less £5,000 already paid on account, leaving £15,000 payable.

The Master determined on 8 March 2004 that the English court had jurisdiction. The Master subsequently made an unless order requiring procedural documents to be served by 25 February 2005. This court enforced that order by striking out the defence and entering judgment for the claimants.