Alan McGee v Katie Lewis

On an application for default judgment, the court must conduct a judicial assessment of whether the claimant is entitled to relief on the pleaded case. The court should test whether the claim is legally complete and workable, but should not conduct a full merits trial or require evidence where the pleaded facts are unchallenged. Departure may be justified where the pleaded case is fanciful, extravagant or unreal.

Where relief may affect freedom of expression, the court must also comply with Human Rights Act 1998, section 12, including the notification safeguards. Injunctive relief may be granted where damages are inadequate and repetition is sufficiently likely, but its terms must be necessary, proportionate and clearly defined.

Alan McGee brought claims against Katie Lewis for misuse of private information, defamation and harassment arising from social media publications and private sexually explicit messages. Ms Lewis did not acknowledge service, file a defence, attend the default judgment hearing or otherwise engage with the proceedings.

Mr McGee applied for default judgment under Part 12 of the Civil Procedure Rules 1998. The court considered whether it was fair to proceed in Ms Lewis’s absence, whether the pleaded claims established entitlement to judgment without trial, and whether injunctive relief and costs should be granted.

1. Proceeding in the defendant’s absence. The court exercised its discretion under CPR 23.11 to proceed in Ms Lewis’s absence. It adopted the two-stage approach in Pirtek (UK) Limited v Robert Jackson: first, whether the defendant had proper notice of the hearing and matters to be considered; secondly, whether the evidence disclosed a reason to adjourn. Section 12 of the Human Rights Act 1998 required satisfaction that all practicable steps had been taken to notify Ms Lewis. That requirement was met. Her unexplained and continuing non-engagement did not justify delay.
2. Default judgment. Default judgment is a judicial, not automatic, process. Under CPR 12.12(1), the court must give the judgment to which the claimant is entitled on the statement of case. The pleaded facts are treated as established, but the court must still conduct a searching examination of whether the claim is legally complete and capable of supporting the relief sought. It should not conduct a full merits assessment or require evidence merely because the claim is undefended.
3. The court may depart from that general approach where, for example, the pleaded meaning is wildly extravagant, the words are clearly not defamatory, or the alleged harassment is unreal. Those circumstances were absent. Misuse of private information, defamation and harassment were adequately pleaded, with sufficient facts capable of establishing each tort on an undefended basis.
4. For defamation, the pleaded natural and ordinary meaning must not be extravagant and the allegation of defamatory tendency must not be unreal. The pleaded meanings and allegations here passed that threshold. For harassment, the pleaded course of conduct was capable of being oppressive and unreasonable and serious enough to engage the criminal law.
5. Relief and costs. Injunctions were justified because money compensation would not be an adequate remedy and there was a sufficient prospect of repetition. The order was narrowed to the serious matters forming the core of the harassment claim. The identified posts were intended to crystallise, rather than enlarge, the general injunction. Mr McGee obtained judgment, injunctive relief and costs. Ms Lewis retained the ability to apply under CPR 13.3 to set aside or vary the default judgment, including on the basis of a real prospect of successfully defending the claim or another good reason.