QRS v Beach & Anor

A final injunction granted upon entry of default judgment forms part of that judgment. An application to set it aside is governed by the self-contained regime in Parts 12 and 13 of the Civil Procedure Rules 1998. The applicant need not also satisfy the more restrictive principles governing variation or revocation under rule 3.1(7).

A defence has a real prospect of success if its prospects are more than fanciful. The court must avoid conducting a mini-trial. Promptness is a discretionary consideration rather than a threshold condition, although deliberate non-participation and unexplained delay weigh against relief. Where the defence nonetheless has a real prospect of success, the court must assess all the circumstances and may set aside judgment subject to conditions.

The claimant obtained default judgment and a final injunction restraining the defendants from harassing solicitors and others through website publications. The second defendant had corresponded before judgment but filed neither an acknowledgment of service nor a defence and did not attend the default judgment hearing.

He applied under rule 13.3 of the Civil Procedure Rules 1998 to set aside the judgment and injunction. He denied responsibility for operating the relevant websites and disputed liability as a joint tortfeasor or as an aider and abettor under the Protection from Harassment Act 1997. The court had to determine whether rule 13.3 alone governed the application, whether the proposed defence had a real prospect of success, and whether relief should be granted despite deliberate default and delay.

1. The application was granted in principle, subject to conditions. The default judgment and final injunction against the second defendant would be set aside. He would be required to plead a proper defence and comply with a strict timetable.

2. Parts 12 and 13 of the Civil Procedure Rules 1998 form a self-contained regime governing default judgment and the relief granted with it. In this context, “judgment” includes an injunction or other order made when default judgment is entered. The second defendant therefore did not also have to satisfy the restrictive principles governing revocation of final orders under rule 3.1(7). Those principles address a general case-management power and should not be imported into the tailored rule 13 procedure: paras [49]–[55].

3. A real prospect of successfully defending the claim means a prospect which is more than fanciful. It is not a test of probability, and the court should not conduct a mini-trial. Although the circumstantial evidence made the second defendant's denials highly improbable, it was not sufficiently overwhelming to compel their rejection without cross-examination: paras [40], [64]–[73].

4. The proposed case that correspondence made the second defendant a joint tortfeasor or an aider and abettor was unsuitable for summary resolution. That basis of liability had not been properly pleaded. It required fuller analysis of the correspondence, its without-prejudice status, the alleged common design and any defence under section 1(3) of the Protection from Harassment Act 1997: paras [74]–[79].

5. The earlier judge's consideration of the second defendant's correspondence did not foreclose the rule 13.3 assessment, although the second defendant had to address the earlier adverse conclusions. A good reason for non-participation is not a threshold requirement, but its absence remains relevant to discretion: paras [56]–[57].

6. The failure to acknowledge service or defend was deliberate, and the application made 21 days after service of the final order was neither prompt nor explained. Those matters weighed heavily against relief. Nevertheless, the possible merits of the defence, the substantial costs liability, the continuing injunctions against others, the absence of disruption caused by the delay and the confined nature of the remaining issues together made it just to grant relief subject to tight conditions: paras [80]–[85].

1. High Court, Queen's Bench Division: On 11 December 2014 the court allowed the second defendant's application in principle and set aside the default judgment and final injunction against him, subject to conditions: [2014] EWHC 4189 (QB).

2. High Court, Queen's Bench Division: On 16 September 2014 Stuart-Smith J entered default judgment and granted a final injunction against both defendants, together with a costs order. No separate neutral citation is stated in the judgment.

3. High Court, Queen's Bench Division: In August 2014 Slade J granted interim relief following the issue and service of the claim. No separate neutral citation is stated in the judgment.