Tinkler & Anor v Elliott

Judgment entered in a defendant’s absence may be set aside under CPR r 39.3(5) where the defendant has a good reason for non-attendance, acted with all reasonable celerity in the circumstances, and has a defence carrying some degree of conviction. The court must also scrutinise carefully any injunction affecting freedom of expression. An injunction should be clear and unambiguous, reflect the contractual bargain it purports to enforce, and comply with the requirements of section 12 of the Human Rights Act 1998 and Article 10 of the ECHR. A settlement undertaking may be subject to a contractual proviso permitting defensive communications. The judgment and counterclaim were therefore set aside and the question of the civil restraint order was remitted.

The defendant had given an undertaking as part of a Tomlin order settling earlier litigation. The claimants later obtained injunctions restraining him from repeating allegations concerning their aviation activities, reputation and business interests. At a five-day trial, the defendant did not attend because of serious stress-related psychiatric illness. Judgment was entered against him, his counterclaim was dismissed and a general civil restraint order was made.

After later contempt proceedings and refused applications for permission to appeal, the defendant obtained permission to apply under CPR r 39.3(5) to set aside the judgment. The central issues were whether he had a good reason for non-attendance, had applied promptly, and had a reasonable prospect of success on the claim and counterclaim.

1. Judgment set aside. The defendant satisfied CPR r 39.3(5). His proposed defences had a reasonable prospect of success, he had a good reason for failing to attend the trial, and, in the exceptional circumstances, he had acted promptly enough.
2. The contractual undertaking included a proviso allowing the defendant, after giving written notice and requesting retraction of defamatory statements, to defend himself as he saw fit. The injunction sought by the claimants ignored that proviso and therefore arguably did not reflect the parties’ bargain.
3. An injunction must be clear and unambiguous. A person subject to it must be able to know with reasonable certainty what conduct is prohibited or required. The injunction’s wide prohibition on allegations that were defamatory was uncertain, particularly because the meaning and application of that restriction had produced differing interpretations in later committal proceedings.
4. Relief affecting freedom of expression required consideration of section 12 of the Human Rights Act 1998. At the without-notice hearing, the court had not considered notification, compelling reasons for proceeding without notice, or the applicable threshold for restraining publication. That omission alone would have justified setting aside the injunction.
5. The defendant had reasonably arguable issues concerning the proviso, duress and the possible application of the whistleblowing provisions of the Employment Rights Act 1996, as amended by the Public Interest Disclosure Act 1998. The court should not conduct a mini-trial on those matters at the set-aside stage.
6. The general civil restraint order was not set aside immediately. The issue was remitted for further submissions because the material before the original judge did not clearly establish that the statutory and procedural criteria had been met. No interim injunction was re-imposed.

The judgment itself was a first-instance decision on an application to set aside judgment entered by HH Judge Tetlow after the defendant’s non-attendance at trial. Earlier applications for permission to appeal had been refused, but those refusals did not prevent consideration of the broader fact-based question under CPR r 39.3(5).