Pritchard Englefield (a firm) & Anor v Steinberg

The jurisdiction to reopen summary judgment may exist where a fresh issue is raised as to how the first-instance judge was allegedly misled, even after an unsuccessful appeal. Whether that jurisdiction exists need not be resolved where the application fails on its merits. Reopening a perfected judgment years later is exceptional. It is unjustified where there is no material deception, no realistic defence on the merits, and the earlier decision already gave the absent party a reasonable opportunity to participate. Finality is a legitimate element of civil justice. Non-participation does not itself establish a breach of due process or Article 6 where the party was duly served and summary judgment was procedurally available.

The claimants obtained summary judgment in a libel action on 18 June 2003, followed by an assessment of damages of £1,000 for the first claimant and £4,000 for the second. The defendant appealed unsuccessfully to the Court of Appeal, which later refused to reopen the appeal and refused permission to appeal further.

The defendant applied under sections 8–10 of the Defamation Act 1996 to set aside the summary judgment. He alleged that the first-instance judge had been deceived about his participation, whereabouts and medical condition, and argued that the judgment should be reopened because he had been unable to oppose the proceedings. The claimants challenged the jurisdiction and relied on the delay, the previous appeal and the absence of any viable defence.

1. Application dismissed. The application was totally without merit.
2. The court accepted that it might have jurisdiction to revisit a perfected summary judgment where a genuinely fresh issue arose concerning deception of the first-instance judge, particularly if the Court of Appeal had not addressed that issue. The court did not finally determine the jurisdictional question.
3. On the facts, there was no basis for reopening the judgment. The evidence did not show that anyone had supplied false information, still less information known to be false. The information concerning the defendant’s presence in England played no part in the decision to grant summary judgment.
4. The defendant had been given a reasonable opportunity to participate personally or in writing and had been allowed several months to produce expert evidence concerning responsibility for the publication. By June 2003, there was no realistic prospect of his participation in the near future. The court was entitled to bring the litigation to finality, particularly since no evidence had emerged showing a realistic prospect of a defence on the merits.
5. The defendant’s medical inability to participate did not alter the result. The earlier decisions had taken the medical evidence into account. Any fresh evidence on that issue belonged before the Court of Appeal, which had already considered whether the proceedings should continue in his absence.
6. There had been no denial of due process or breach of Article 6. A party’s failure to participate does not itself establish procedural unfairness where the party was served in accordance with the rules and the legal system permits summary judgment and finality.
7. The court also declined to reopen the case because of the later decision in Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946. It would be contrary to finality and public policy to reopen concluded proceedings years later because the law or practice had subsequently developed.

• Court of Appeal: The defendant’s appeal against the 2003 summary judgment was dismissed on 3 March 2005. The Court of Appeal later refused to set aside that dismissal and refused permission to appeal to the House of Lords.
• High Court (Queen's Bench Division): The application to set aside the perfected summary judgment was dismissed.