Murtaza Ali Shah v Ajaz Ahmed

A court may strike out a defence for persistent, serious and unexplained failures to comply with procedural orders where repeated opportunities and warnings have been disregarded. The court must assess the seriousness and significance of the defaults, the reasons for them, and all the circumstances, including whether a lesser sanction would be proportionate and effective.

An adjournment should be refused where the evidence of illness does not adequately explain its impact on the litigation or provide a reliable basis for relisting, particularly where delay would cause substantial unfairness. In a defamation claim, natural and ordinary meaning and defamatory tendency are not matters requiring evidential proof in the pleaded manner, and serious harm may be established inferentially.

Two journalist brothers brought a libel claim concerning English and Urdu press releases published on a WhatsApp group. The defendants pleaded, among other matters, truth, honest opinion and publication on a matter of public interest under the Defamation Act 2013.

The defendants repeatedly failed to comply with court orders and applied shortly before trial for an adjournment, relying on limited evidence concerning the first defendant’s mental health. The claimants applied to strike out the remaining defence and obtain judgment on liability. The issues were whether the trial should be adjourned and whether the defendants’ continuing procedural defaults justified a terminating sanction.

1. The adjournment application was refused. The medical material showed serious mental-health difficulties, but did not sufficiently explain the defendants’ failure to engage, establish incapacity to conduct the litigation, or provide a reliable basis for relisting. The extensive history of non-compliance and the prejudice caused by further delay were also relevant. The least unjust course was to determine the claimants’ application in the defendants’ absence. The defendants retained the ability to apply under CPR 39.3 to set aside the resulting order.
2. The defence was struck out and judgment was entered for the claimants on liability. Under CPR 3.4(2)(c), the court applied the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906: assess the seriousness and significance of the default, consider the reasons, and evaluate all the circumstances, including proportionality and lesser sanctions.
3. The defaults were repeated, flagrant, serious and unexplained. They continued despite repeated opportunities, express warnings, unchallenged orders and ignored costs orders. The conduct wasted court resources and caused substantial prejudice to claimants seeking timely vindication. No lesser remedy appeared capable of correcting the position.
4. The remaining defence was also inadequately pleaded. A party cannot meet allegations of natural and ordinary meaning or defamatory tendency merely by putting the claimant to strict proof without pleading an alternative meaning. In an inferential serious-harm case, proof may draw on the words used, the claimant’s circumstances, the circumstances of publication and inherent probabilities, as explained in Lachaux v Independent Print Ltd [2019] 3 WLR 253.
5. The court held that the test under section 12(2) of the Human Rights Act 1998 was satisfied and ordered injunctive relief. Damages and consequential matters were to be addressed separately. The defendants could apply promptly under CPR 39.3(3)–(5), but would need a good reason for non-attendance and a reasonable prospect of success.

First-instance decision. No prior appellate decision is stated in the judgment.