Tardios & Anor v Linton (aka Patricia Carpenter)

A default judgment is not necessarily a final judgment for the purpose of amending the identity of a defendant. Where the judgment leaves issues such as damages or injunctive relief unresolved, the court may amend the claim form or substitute a defendant under the Civil Procedure Rules 1998. This is particularly so where the proposed defendant has already participated in the proceedings under another name. If identity is disputed, the court should determine whether there is a triable issue by analogy with summary judgment principles. It should avoid a mini-trial, but may resolve the issue summarily where the evidence leaves no real prospect of a contrary finding. If a triable issue exists, the proposed defendant should be joined and the issue directed to trial.

The claimants brought libel proceedings concerning an online petition published by a person using the name Patricia Carpenter. The claim was initially brought against persons unknown associated with an email address. Default judgment was obtained. The claimants later applied to identify Pammela Linton as the defendant also known as Patricia Carpenter.

Master Eastman allowed the substitution after finding, on the balance of probabilities, that Ms Linton was Patricia Carpenter. Ms Linton appealed, disputed that identification, challenged the fairness of the procedure, and sought to rely on fresh evidence. The central issues were whether the court had jurisdiction to amend the defendant’s name after default judgment and how the disputed identity question should be determined.

Appeal dismissed. Master Eastman had jurisdiction to identify Ms Linton as the defendant also known as Patricia Carpenter.

1. Amendment after default judgment. The default judgment did not determine all issues between the parties because damages, injunction and other remedial matters remained to be decided. It was therefore not a final judgment. The court retained jurisdiction under CPR Parts 17.3 and 19.2(4)(b) to amend the claim form or substitute a party. The case also differed from Attorney General v Corporation of Birmingham (1880) 15 Ch D 423 and Kirby v Telegraph plc [1999] EMLR 303, which concerned amendments after final judgment.
2. Disputed identity. Applying the overriding objective, the court should allow amendment if the evidence establishes the proposed defendant’s identity and there is no triable issue. If a triable issue exists, the proposed defendant should be added as a second defendant and directions given for trial of the identity issue. If there is no evidence capable of establishing identity, the application should be dismissed.
3. By analogy with summary judgment principles, the court should avoid conducting a mini-trial. It should generally accept witness assertions unless inherently improbable or contradicted by extraneous evidence demonstrating their falsity. Allegations of bad faith do not, by themselves, require a trial.
4. The evidence established that Ms Linton was Patricia Carpenter and that there was no real prospect of a contrary finding. The court relied on private knowledge reflected in the petition and emails, access to the relevant email account, disclosure failures, evidence that Patricia Carpenter was not in Zimbabwe, and the unusual use of the word “correspondences”.
5. The appeal was properly conducted as a rehearing because permission had been given for substantial fresh evidence. Further witness statements were admitted under the approach in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3926. Ms Linton was permitted to participate despite procedural defaults, since no unless order had been made; the defaults could instead be considered when assessing the merits.

The application to revoke Master Eastman’s order and to strike out the claim was refused.

• High Court (Queen’s Bench Division): On appeal from Master Eastman’s order dated 20 December 2013, the court conducted a rehearing, upheld the substitution identifying Ms Linton as Patricia Carpenter, refused the application to revoke the order or strike out the claim, and dismissed the appeal.