Bourne v Nejad

On an application for default judgment where the defendant is absent, the court should first determine whether the defendant received proper notice of the hearing and matters to be considered. It should then consider whether the evidence supplies a reason to adjourn. Where the claim is undefended, the court will ordinarily determine entitlement from the unchallenged statement of case, without examining the merits unnecessarily. A defendant may be an author or editor for the purposes of section 10 of the Defamation Act 2013. Harassment requires a course of conduct on at least two occasions which is objectively oppressive and unacceptable to a degree capable of sustaining criminal liability. Final injunctive relief may be granted where the pleaded facts establish defamation or harassment and the injunction is justified and proportionate having regard to freedom of expression.

The claimant, a solicitor, advised an Oxford college in disciplinary proceedings involving the defendant. The defendant subsequently published material concerning the claimant on a website and sent him communications alleged to be defamatory and harassing.

An interim injunction was granted after the defendant failed to attend. The claim form and particulars of claim were later served by permitted alternative methods. The defendant did not acknowledge service, file a defence, attend hearings or engage substantively with the proceedings. The claimant applied for default judgment and a final injunction restraining publication of the defamatory words and harassment.

The central issues were whether the court could proceed in the defendant’s absence, whether the requirements for default judgment and jurisdiction under section 10 of the Defamation Act 2013 were met, whether the pleaded claims disclosed libel and harassment, and whether final injunctive relief should be granted.

1. Proceeding in the defendant’s absence. The court adopted the two-stage approach in Pirtek (UK) Limited v Robert Jackson [2017] EWHC 2834 (QB): first, whether the defendant had proper notice of the hearing and matters to be considered; secondly, whether the evidence supplied a reason to adjourn. The defendant had received the relevant documents and had demonstrated that he knew of the proceedings. Nothing suggested that proceeding would be unfair. The hearing therefore proceeded in his absence.
2. Default judgment. The requirements of CPR 12.3(1), CPR 12.4(2) and Practice Direction 12, paragraph 4.1 were satisfied. The particulars of claim had been served, the time for acknowledgment of service or defence had expired, and no defence, admission or satisfaction of the claim had been filed. The court therefore proceeded on the basis of the unchallenged particulars of claim, as ordinarily appropriate on an application of this kind.
3. Jurisdiction. Section 10(1) of the Defamation Act 2013 did not prevent the claim. On the pleaded case, the defendant was the author or, at least, an editor of the website statement. The court would have reached the same conclusion on the evidence.
4. Substantive causes of action. The allegation that the claimant was a “dirty” solicitor carried an imputation of dishonesty and was defamatory at common law. On the unchallenged case, the statement had caused or was likely to cause serious harm for the purposes of section 1 of the Defamation Act 2013. The pleaded emails, website publication and other conduct disclosed a course of conduct capable of amounting to harassment under section 1 of the Protection from Harassment Act 1997.
5. Relief. A final injunction in the same terms as the interim injunction was justified. The court had regard to freedom of expression under section 12(4) of the Human Rights Act 1998. The interference was justified by the public interest in protecting professional reputation and protecting the claimant from further harassment, and went no further than required. An order under section 9(1)(d) of the Defamation Act 1996 was made; it was unnecessary to consider summary disposal under sections 8 and 9.
6. Costs. The claimant was entitled to costs. The recoverable costs were summarily assessed on the standard basis at £27,750.