WXY v Gewanter & Anor

An application to set aside a judgment for non-attendance under CPR 39.3 requires satisfaction of three cumulative conditions: promptness, a good reason for absence, and a reasonable prospect of success at the trial. The court must determine the true reason for non-attendance on all the evidence. The requirements are fact-sensitive and are subject to the overriding objective, but failure to satisfy any one condition is fatal. In a harassment claim, the course of conduct is judged objectively. Context or an asserted grievance does not provide a defence to conduct which objectively amounts to harassment, and disclosure of private information cannot be justified merely as an attempt to tell the defendant’s story.

The claimant had obtained judgment on 6 March 2012 against the third defendant, Mark Burby, for injunctive relief and damages for breach of confidence, misuse of private information and harassment. The judgment followed a trial at which Mr Burby did not attend after leaving court and returning to Jersey. He alleged that his wife had received a threatening photograph and that the Jersey police had advised them not to travel.

Mr Burby applied under CPR 39.3(3) to set aside the judgment and under CPR 32.7 for permission to cross-examine a solicitor. The central issues were whether he had acted promptly, had a good reason for non-attendance, and had a reasonable prospect of success had he participated in the trial.

1. The application to set aside the judgment of 6 March 2012 was dismissed. Mr Burby had acted promptly, but failed to establish either a good reason for non-attendance or a reasonable prospect of success.

2. Under CPR 39.3(5), all three conditions must be satisfied before the judgment can be set aside. If each condition is met, the judgment will ordinarily be set aside save in a very exceptional case. Promptness and good reason are fact-sensitive, and the rule must be applied in accordance with the overriding objective.

3. Applying Royal Bank of Scotland v Pereira [2011] 1 WLR 2391 and Frank Henry Brazil v Frank Brazil [2002] EWCA Civ 1135, the court assessed the true reason for the absence by considering the written and oral evidence and the history of the proceedings. The evidence did not establish that the police had advised either Mr or Mrs Burby not to leave Jersey. The true reason for Mr Burby’s non-attendance was his unwillingness to face the claims at the July 2011 trial, which was not a good reason.

4. Additional evidence and cross-examination would not have given Mr Burby an arguable case on the merits. His website postings and press interviews disclosed the claimant’s private information and constituted a course of conduct amounting to harassment. The statutory defence in section 1(3) of the Protection from Harassment Act 1997 was unavailable because the conduct could not have been shown to have been pursued for the purpose of preventing or detecting crime.

5. Whether conduct amounts to harassment is judged objectively under section 1(2) of the Protection from Harassment Act 1997. The surrounding dispute, the claimant’s alleged conduct, and the defendant’s wish to tell his story could not provide a defence or alter the conclusion.

The judgment records that judgment had previously been entered against Mr Burby on 6 March 2012. His application to set that judgment aside was dismissed in the present proceedings.