Kim v Lee (Rev 1)

A defendant debarred from defending does not automatically lose the claim. The claimant must still prove the facts establishing liability and entitlement to relief, although admitted facts in the defence may be relied upon. A debarring order ordinarily prevents the defendant from adducing evidence, cross-examining witnesses or making submissions in defence, subject to a narrow residual case-management power.

In a defamation claim, the court determines the single natural and ordinary meaning of the publication as a whole, viewed through the hypothetical reasonable reader and its context. Liability requires reference, publication, defamatory meaning and serious harm under the Defamation Act 2013. Where defamatory publications remain available, an injunction may restrain further publication, and damages must reflect reputation, distress, vindication and any aggravating conduct.

The claimant, a pastor and football journalist, sued the defendant for libel arising from eight Korean-language posts published on Facebook and Instagram. The defendant pleaded truth, honest opinion and public interest, but failed to provide supporting evidence. He was debarred from defending after failing to comply with an unless order requiring an interim payment towards costs.

The court determined whether it could proceed in the defendant’s absence, the effect of the debarring order, the claimant’s application to amend the claim form to include injunctive relief, the meanings and defamatory character of the publications, serious harm, the defence of truth, and the appropriate remedies.

1. Proceeding in the defendant’s absence. The court applied the two-stage approach in Pirtek (UK) Limited v Robert Jackson: whether the defendant had proper notice and whether the reasons for non-attendance justified an adjournment. The defendant had notice and had chosen not to attend. Section 12(2)(a) of the Human Rights Act 1998 was satisfied, so the trial proceeded.
2. Effect of the debarring order. The wording of the unless order debarred the defendant from defending the whole claim. He could not adduce evidence, cross-examine witnesses or make submissions in defence. A narrow residual case-management power remained, for example concerning the scope of relief. The order did not relieve the claimant of proving the claim, but the defence could be considered to identify admitted facts and the ambit of the dispute.
3. Amendment. Permission was granted to amend the claim form to include injunctive relief. The amendment corrected an inconsistency with the particulars of claim, introduced no new claim or form of relief, caused no prejudice, and was consistent with the court’s power under CPR 16.2(5).
4. Defamation. The court applied the natural and ordinary meaning principles stated in Stocker v Stocker and distilled in Koutsogiannis v Random House Group Ltd. The publications, read as a whole and in context, conveyed that the claimant was a shameless liar and fraudster who had engaged in dishonest, unethical and corrupt conduct, and had threatened the defendant concerning immigration status. They did not allege criminal fraud requiring prosecution.
5. The claimant established publication, reference, defamatory meaning and serious harm. The defendant failed to establish truth under section 2(1) of the Defamation Act 2013. The meanings were statements of fact, so the honest opinion defence failed, and the defendant did not establish publication in the public interest.
6. The claimant was entitled to an injunction restraining further publication of the statements complained of or any similar defamatory statement. He was also entitled to general damages of £44,000, including £4,000 aggravated damages, special damages of £30,850, and interest on the special damages.