Smith v Unknown Defendant, Pseudonym 'Likeicare' & Ors

The court may grant final injunctive relief and summary judgment against persons unknown where they can be identified by description with sufficient certainty and have been properly served. Before proceeding in a defendant’s absence, the court must verify notice, consider whether an adjournment is justified, and have regard to the overriding objective and Human Rights Act 1998, section 12(2). In a defamation claim, unchallenged particulars and evidence may establish falsity, malice and serious reputational harm. Summary disposal under sections 8 and 9 of the Defamation Act 1996 may be appropriate where there is no realistic defence and a full trial or assessment would be disproportionate. Damages may be awarded up to £10,000, with liberty to apply to vary quantum.

The claimant, a former borough councillor and McKenzie friend, brought defamation proceedings against anonymous users and operators of a satirical website. Articles described him as a paedophile and child rapist and included sexualised images. The first and third defendants removed the offending material, and the claim against them was stayed. The second defendant remained unidentified and did not acknowledge service, defend the claim or attend the hearing.

The claimant applied for default and summary judgment, a declaration of falsity, damages, indemnity costs and permanent prohibitory and mandatory injunctions. The central issues were whether relief could be granted against an unknown defendant in his absence, whether service and procedural safeguards were satisfied, and whether the pleaded case justified summary relief.

1. Proceeding in the defendant’s absence. The court was satisfied that the second defendant had received proper notice of the proceedings, the hearing and the evidence. The defendant’s failure to engage was attributed to a wish to remain anonymous. The court therefore proceeded under the overriding objective and CPR 23.11, while recognising the need for considerable caution before determining a case in a party’s absence.
2. Persons unknown. Final injunctive relief may be granted against persons unknown where the description identifies with sufficient certainty the persons within and outside the scope of the order. The procedural safeguards include proper service of the proceedings and the application. Those requirements were met because the site administrators responded to and published the pre-action documents.
3. Human rights safeguard. Because the relief could affect freedom of expression, the court considered section 12(2) of the Human Rights Act 1998. The claimant had taken all reasonable steps to notify the defendant, and there were no compelling reasons to dispense with notification.
4. Default and summary judgment. The conditions for default judgment were satisfied. The unchallenged particulars, read with the evidence, established the pleaded facts, falsity and malice. The publications were likely to cause serious harm within section 1(1) of the Defamation Act 2013.
5. Summary relief and remedy. The court had jurisdiction under sections 8 and 9 of the Defamation Act 1996. Given the popularity of the website, the gravity of the allegations and the need for vindication, damages of £10,000 were awarded. The defendant was given 14 days to apply to vary the quantum, but any application had to comply with the ordinary procedural rules and could not be anonymous. Prohibitory and mandatory injunctions were also granted because there was reason to believe that repetition would otherwise continue.
6. Orders. The court granted the relief sought, including judgment, damages, injunctions and the associated orders.

First-instance decision. No earlier appellate decision is stated in the judgment.