Triad Group Plc & Ors v Makar (Rev 1)

On an application for default judgment requiring a hearing, the court must determine what judgment the claimant is entitled to on the statement of case and tailor the relief to the pleaded cause of action. It need not conduct a full merits assessment or anticipate possible defences. Where injunctive relief would restrain publication, the court must have particular regard to freedom of expression under the Human Rights Act 1998. A course of conduct may amount to harassment where its nature, frequency and quantity reach the required level of seriousness. Repeated, oppressive and continuing publications may justify an injunction where there is a sufficient risk of further publication. Serious harm for defamation may be inferred from pleaded meanings and the nature of the publications where the pleaded case establishes that threshold.

The claimants, a company and two of its directors, sued the defendant for breach of a settlement agreement, harassment and defamation. The defendant had previously been a director and chief executive of the company and had agreed not to publish disparaging or derogatory statements about the company or its officers and employees. She subsequently conducted a prolonged campaign of communications and online publications concerning the claimants.

The defendant was properly served but filed neither an acknowledgment of service nor a defence. She did not attend the hearing, although the court was satisfied that she had notice and had intentionally chosen not to attend. The claimants sought default judgment, damages to be assessed for the individual claimants, and injunctive relief restraining further breach, harassment and defamatory publication.

1. Default judgment. The court was satisfied that the proceedings and the application had been properly served, that the defendant knew of them, and that no acknowledgment of service or defence had been filed. The application could therefore proceed in her absence under CPR 23.11(1) ([28], [33]).
2. Under CPR 12.11(1), the court had to give such judgment as appeared appropriate on the claimants’ statement of case. The authorities explained that this did not require the court to second-guess whether pleaded facts legally disclosed a cause of action or to conduct a full merits hearing. The court’s task was to scrutinise the relief sought and tailor it to the pleaded causes of action. Default judgment nevertheless involved an element of merits assessment where the appropriate relief had to be determined ([35]-[36]).
3. The court also had particular regard to freedom of expression under section 12(4) of the Human Rights Act 1998, because the claimants sought restraints on publication. That consideration did not prevent relief where the pleaded and evidential material established the necessary legal and factual basis ([37]).
4. The company established repeated breaches of the settlement agreement and a continuing threat of further breach. It was entitled to an injunction enforcing the contractual obligation. The company also established the statutory requirements for harassment under section 1(1A) of the Protection from Harassment Act 1997. Speech could constitute conduct, and the defendant’s persistent and oppressive campaign comfortably exceeded the required threshold of seriousness ([39]-[49]).
5. The second and third claimants established their harassment claims on the same reasoning. Their pleaded meanings in respect of the publications were capable of causing serious harm, and the continuing publications created a sufficient risk of further publication to justify injunctive relief. No viable defence was apparent on the material before the court ([50]-[57]).
6. Judgment was entered for the claimants. Damages for the second and third claimants were to be assessed. The injunctions sought were granted subject to minor amendment, with a summary assessment of costs payable by the defendant ([58]).