Pirtek (UK) Ltd v Jackson

A court may re-list and rehear an application decided in a party’s absence under CPR Part 23.11. The power is flexible but should be exercised sparingly. The court must assess whether the party had notice and deliberately chose not to participate, together with the merits and the interests of justice.

In contempt proceedings, the civil nature of the proceedings and the criminal standard of proof require particular caution. The focus is chiefly on whether the respondent deliberately absented himself and whether there is a compelling defence to the alleged breach. A respondent cannot obtain a rehearing merely by asserting non-receipt after deliberately avoiding engagement with the proceedings.

The claimant brought libel proceedings concerning publications on a website and social-media accounts. It alleged that the defendant was responsible for the publications. Judgment in default was entered after the defendant failed to acknowledge service or attend the hearing.

The claimant later obtained findings of contempt for breaches of the injunction granted with the default judgment. The defendant attended the subsequent sanction hearing and sought, under CPR Part 23.11, to rehear both the default-judgment application and the committal application. He claimed that he had not known about the proceedings and denied responsibility for the website. The central issue was whether he had deliberately failed to engage with proceedings of which he had notice.

1. Applications dismissed. The applications to rehear the default-judgment and committal applications were dismissed. The defendant had not shown, on the balance of probabilities, either a good defence on the merits or a satisfactory explanation for his absence. He had also failed to establish any defence to the contempt allegations.
2. Applicable principles. Under CPR Part 23.11, the court has a flexible power to re-list an application and rehear it in full. The power should be exercised sparingly, having regard to the overriding objective and the merits. Whether the absent party was validly served is important. A deliberate choice by a person with notice of proceedings to ignore them is a powerful factor against a rehearing.
3. The factors in Shocked v Goldschmidt remain generally applicable. For an application concerning a default judgment, the dominant consideration is whether there is a defence on the merits, weighed against the explanation for the default and prejudice. For absence from a hearing after notice, the principal consideration is why the party was absent. A deliberate decision to stay away will ordinarily prevent a rehearing.
4. In contempt proceedings, the proceedings remain civil in nature, although imprisonment may be imposed, and the alleged breach must be proved to the criminal standard. The court may proceed in the respondent’s absence where deliberate and voluntary absence is established. The factors applicable to ordinary absence-from-trial cases require adjustment because of the potential seriousness of contempt sanctions. The focus is principally on deliberate absence and the existence of a compelling defence, while the court must guard against indignation producing a miscarriage of justice.
5. The evidence established that the defendant had received the relevant emails and documents, had controlled or operated the website, and had deliberately chosen not to engage with the proceedings. His later account of automatic deletion of emails and lack of knowledge was rejected as dishonest and incredible. His attendance at the later hearing did not justify reopening the earlier decisions.
6. The court’s findings were that the defendant had deliberately avoided the proceedings and was responsible for the publications found to breach the injunction. The applications were therefore dismissed. The question of sanction for contempt remained to be determined after further submissions.