Hayden& Anor v Charlton (Rev 1)

When deciding whether to restore libel proceedings struck out for repeated non-compliance, the court must apply the overriding objective and weigh prejudice to each side. Responsibility resting with a legal representative is relevant but not decisive. The court may consider the burden on litigants in person, prolonged uncertainty, the short limitation period for libel, freedom of expression, inequality of arms, and the claimant’s lost opportunity to vindicate reputation. Prejudice that cannot be compensated by costs or recovered from a solicitor may weigh heavily. A possible future claim based on continued publication does not require existing claims based on past publications to remain alive. Hypothetical future issues need not be decided without full argument.

Two claimants appealed from orders of Sharp J striking out two libel actions under CPR 3.4(2)(e) for failure to comply with court orders. The judge had concluded that the claimants’ conduct showed that they had lost interest in the litigation and that continuation was an abuse. She also held that delay and its consequences justified strike-out in any event. Her judgment was reported at [2010] EWHC 3144 (QB).

On appeal, the claimants relied on credible fresh evidence that their former solicitor had failed to inform them of developments and had misled them. The central question was whether the actions should continue after reconsideration under the overriding objective and the factors relevant to sanctions for non-compliance.

The appeals were dismissed. Toulson LJ gave the leading reasons, and Sullivan LJ and Pill LJ agreed.

1. Fresh evidence. The fresh evidence was credible, and it would have been unjust not to admit it. The Court of Appeal therefore made a fresh decision on all the material before it.
2. Applicable framework. The court applied the overriding objective in the Civil Procedure Rules 1998 and the factors in CPR 3.9. These included the cause of the non-compliance, including whether it was attributable to the party or legal representative, and the effect of granting relief on each party. The converse effect of refusing relief also had to be considered. Justice required the prejudice on both sides to be weighed.
3. Assessment of prejudice. The claimants had lost the opportunity, through no personal fault, to obtain a judgment or injunction vindicating their reputation. However, the defendants had suffered substantial and uncompensatable burden, strain and uncertainty as litigants in person. The short limitation period for libel and the impact of protracted proceedings on freedom of expression were proper considerations. The inequality of financial resources was relevant, although it did not entitle the defendants to defame the claimants.
4. Future publication. The possibility of a future cause of action arising from continued website publication did not justify preserving claims based on past publications. The court declined to determine hypothetical questions concerning fresh publication or abuse of process without detailed argument, particularly as such issues might be fact-dependent.
5. Disposition. Considering the whole history, including repeated breaches, delay and the defendants’ uncompensatable prejudice, the less unfair result was for the litigation to remain dismissed. The appeals were dismissed with costs. The parties were urged to seek mediation and to exercise caution before pursuing or making further publications.

• Court of Appeal (Civil Division): The appeals were dismissed after the court admitted fresh evidence and reconsidered whether the actions should remain struck out.
• High Court of Justice, Queen’s Bench Division: Sharp J struck out the two libel actions under CPR 3.4(2)(e) for failure to comply with court orders. Written reasons were given on 1 December 2010 and reported at [2010] EWHC 3144 (QB).