Oliver v Shaikh

A defence which is merely a bare denial, gives no coherent factual case and fails to identify the allegations admitted, denied or requiring proof may be struck out under CPR r 3.4(2). The court may also grant summary judgment where the defendant has no realistic prospect of defending the claim and there is no compelling reason for trial. A litigant in person is entitled to practical allowances, but not to a lower standard of compliance with procedural rules. Persistent, deliberate, targeted and oppressive online publication may constitute harassment under the Protection from Harassment Act 1997, even where the claimant is a judge and the publication purports to criticise judicial conduct. Any interference with Article 10 rights must be balanced against the claimant’s Article 8 rights. A permanent injunction is justified where there is an overwhelming likelihood of continuing harassment.

The claimant, a Circuit Judge and additional judge of the Administrative Appeals Chamber of the Upper Tribunal, brought a civil claim for harassment against a litigant who had previously appeared before him. The claimant alleged that the defendant operated and published a website containing repeated allegations of criminality, abuse, threats and personal information concerning the claimant and his family.

The defendant denied responsibility for the website and relied on a brief Defence and Counterclaim. The claimant applied to strike out both pleadings, obtain summary judgment and secure a permanent injunction. The central issues were whether the pleadings disclosed a viable defence or counterclaim, whether the defendant had a realistic prospect of defending the harassment claim, and whether the requested injunction was justified having regard to Articles 8 and 10 of the Convention.

1. Strike out. The Defence was a bare denial and did not comply with CPR r 16.5. It failed to identify which allegations were admitted, denied or not admitted, failed to give reasons for denials, and failed to set out any alternative version of events. It therefore disclosed no reasonable grounds for defending the claim, was abusive or likely to obstruct the just disposal of the proceedings, and failed to comply with the CPR. The Counterclaim was similarly deficient, abusive and vexatious. Both were struck out under all three limbs of CPR r 3.4(2).
2. The fact that the defendant was unrepresented did not justify applying a lower standard of procedural compliance. He had been warned repeatedly of the defects and had declined to remedy them. Relief from sanctions was refused after applying the three-stage approach in Mitchell v News Group Newspapers Ltd and [2014] 1 WLR 795, and Denton v TH White Ltd and [2014] 1 WLR 3926.
3. Summary judgment. The defendant’s denial of responsibility for the website was not a realistic defence. The evidence, including distinctive information, matching language, common misspellings, knowledge of private procedural events and the defendant’s motive, was overwhelming. The defendant controlled and operated the website and was responsible for its publication, including comments authored by others, because he knowingly participated in, authorised or ratified their publication.
4. The publications amounted to harassment. They were persistent and deliberate, unreasonable and oppressive, targeted at the claimant, calculated to cause alarm, fear or distress, and did cause such distress. The conduct went far beyond reasonable criticism or fair comment, even allowing for the high degree of protection afforded to criticism of the judiciary.
5. Any interference with the defendant’s Article 10 rights was justified. The claimant’s Article 8 rights and the need to protect him and his family from threats and abuse outweighed the defendant’s asserted expressive rights. A permanent injunction restraining the defendant from pursuing a course of conduct amounting to harassment was granted, with specific prohibitions to clarify the scope of the order.