Berezovsky v Russian Television and Radio Broadcasting Co & Anor

In deciding whether to set aside a default judgment, the court must consider whether the defendant has a real prospect of successfully defending the claim or whether there is some other good reason to permit a defence. Promptness is relevant, but it is not determinative. Where the proposed defence concerns exceptionally serious allegations and raises a genuine prospect that the claimant’s reputation may not have been fully vindicated by default judgment, the public interest may favour setting the judgment aside. A partial justification defence may justify relief even if it does not answer every pleaded defamatory meaning. Relief may be conditional on the defendant serving a clear defence and progressing the litigation promptly.

The claimant brought libel proceedings concerning a television programme broadcast in April 2007. Judgment in default was entered against the second defendant on 4 December 2008 after he failed to acknowledge service or file a defence. The second defendant applied under CPR 13.3 to set aside the judgment.

He proposed a partial justification defence alleging that the claimant had procured a false account from him by threats, bribery or drugging in connection with an asylum claim. He accepted that he had no evidence to support an allegation that the claimant was involved in the murder of Alexander Litvinenko. The central questions were whether the proposed defence had a real prospect of success, whether there was another good reason to permit the claim to be defended, and what significance should be attached to the defendant’s delay.

1. The judgment in default was set aside. The application was governed by CPR 13.3, which confers a broad discretion where the defendant shows a real prospect of successfully defending the claim or where there is some other good reason to set aside the judgment or allow a defence.
2. The defendant had not acted promptly. The court accepted that he had probably known of the proceedings and judgment earlier than he admitted. Promptness was nevertheless only one factor in the discretionary assessment.
3. The proposed justification defence did not extend to every pleaded meaning, particularly the allegation concerning the Litvinenko murder. That limitation did not prevent the court from considering the defence on the meanings to which it did relate.
4. The available evidence did not justify concluding at this interlocutory stage that the proposed defence was bound to fail. Although the documentary evidence and the defendant’s account gave rise to substantial scepticism, the court could not determine credibility finally from a partial documentary record. There was also evidence that potential witnesses might be available.
5. There was an additional good reason to permit the defence. Allegations that a person obtained asylum through a false account procured by threats or drugging were exceptionally serious. It was in the public interest that they should receive as full and fair a hearing as circumstances permitted.
6. Vindication was also relevant. Reliance solely on a default judgment could leave the claimant’s reputation vulnerable to the suggestion that a partial justification defence had been excluded without examination on its merits. Proper determination of the defence could therefore serve the interests of both parties.
7. The defendant was required to proceed with reasonable promptitude and to serve a clear statement of case shortly. Further delay or procrastination would not readily be indulged.