Mole v Hunter

A default judgment may be set aside under the court’s general case-management powers where justice requires it, even if the specific rule governing non-attendance at trial does not apply. Relevant considerations include promptness, the reason for non-compliance, the applicant’s prospects of success and the need to deal with the case justly and at proportionate cost.

A defamation claim must identify the words or images complained of, their defamatory meaning, the publication relied upon, the persons to whom publication is alleged and, so far as possible, the number of publishees. These are substantive pleading requirements. An internet publication does not give rise to a presumption that anyone read it. Publication must be proved or inferred from supporting facts.

The claimant brought proceedings concerning a tenancy deposit. The defendant served a counterclaim alleging defamation arising from statements allegedly made by the claimant and others, including an internet posting. The counterclaim was transferred from the county court to the High Court because the county court lacked jurisdiction over an action for libel or slander.

After the claimant failed to serve a defence within the period fixed by a case management order, judgment in default was entered. She applied to set it aside and sought to strike out the counterclaim for defective pleading. The issues were whether the default judgment should be set aside, whether the counterclaim complied with the procedural requirements for defamation claims, and whether the defendant should have an opportunity to amend.

1. Default judgment. The claimant was not in default before the counterclaim was transferred to the High Court, because the county court had no jurisdiction to determine it. The operative deadline arose from the order made on 7 August 2013. Although the claimant failed to serve a defence by 23 August, she was not at fault: the court had sent notice of the hearing to an outdated address. Her application was made promptly after she learned of the orders.
2. Under CPR r.3.1(2)(m), the court could set aside the judgment as a case-management step to further the overriding objective. The factors in CPR r.39.3(5) were relevant, although they did not exhaust the matters the court could consider. The court also had regard to CPR rr.3.8 and 3.9 and the stricter approach to compliance explained in Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224 and Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537. The claimant had a real prospect of defending the counterclaim, including on qualified privilege, publication and responsibility for the website.
3. The default judgment also had to be set aside because the counterclaim was too defective to permit a just assessment of damages. It did not identify the words complained of, their meaning, the date or circumstances of publication, or the alleged publishees.
4. Pleading defamation. CPR r.16 and Practice Direction 53 require a defamation claimant to plead the publication, the words or images complained of, the defamatory meaning, the persons to whom publication was made and the facts supporting any inference of publication. These requirements are not mere formalities. They are necessary because seriousness, identity and number of publishees materially affect damages.
5. Internet publication. The court does not presume that an internet posting was read by anyone. The claimant must prove publication or facts from which publication to probable readers may properly be inferred, following Al-Amoudi v Brisard [2006] EWHC 1062 (QB); [2007] 1 WLR 113. Publication solely to relatives in the USA could not, on the facts then available, support a claim because it could have caused no real reputational harm.
6. Outcome. The default judgment was set aside. The counterclaim was struck out for failure to plead material allegations, but the defendant was given an opportunity to apply for permission to amend. The website allegations could proceed only if a properly particularised amended pleading had a real prospect of success. The alleged publications to the council or a third party were likely to attract qualified privilege and would require proof of malice. The alleged publication among the tenants could not proceed as a self-contained defamation claim on the pleaded case. No order for costs was made at the hearing.

First-instance decision. The proceedings had been transferred from the Clerkenwell and Shoreditch County Court to the High Court by order dated 1 March 2013 because the county court lacked jurisdiction over the defamation counterclaim.