Dmitri Zhurba & Anor v Person(s) Unknown

Following default judgment, the court ordinarily determines relief on the basis that the claimant’s pleaded case is correct. It need not make findings on liability unless the claim is impossible, fundamentally flawed, or fails a required legal threshold.

Libel damages are compensatory. They address injury to reputation and feelings, vindication, and distress, without punishment or double recovery. The assessment considers the seriousness and reach of the publication and other relevant circumstances. Where the evidence justifies a capped claim, the court may award the full amount claimed. An injunction may restrain substantially similar republication where the risk of repetition is established.

The claimants sued persons unknown for libel and breach of data protection concerning an online article alleging that they had defrauded investors. The defendants did not acknowledge service or defend the claim. Default judgment was entered, followed by a disposal hearing concerning damages and injunctive relief.

The original article was removed, but a response from the defendants threatened possible republication. A substantially similar article later appeared on another website, although the claimants could not establish that the defendants were responsible for it. The issues were the proper approach to relief after default judgment, the level of compensatory damages, and whether a final injunction should be granted.

1. Default judgment. The court proceeded in the defendants’ absence. The defendants had been served with the hearing order and evidence, appeared to be aware of the proceedings, and retained the ability to apply to set aside the default judgment under CPR Part 13.
2. Under CPR 12.12(1), relief following default judgment is ordinarily determined on the basis of the unchallenged pleaded case. The court need not conduct a fact-finding exercise on liability. It may depart from that approach only where the claim is impossible, fundamentally flawed, or fails another necessary legal threshold: [2015] EMLR 27, [2015] 4 WLR 69.
3. The pleaded allegation was plainly defamatory and had a real prospect of success. The data-protection claim added nothing substantial to the assessment of relief, so a single compensatory award for each claimant was appropriate.
4. Damages for libel compensate, rather than punish. They must address injury to reputation, vindication, and distress, while avoiding double counting. The court applied the principles summarised in Barron v Vines [2016] EWHC 1226, drawing on John v MGN Limited [1997] QB 586. Relevant considerations included the gravity of the allegation, extent of publication, likely impact on reputation, distress, conduct after publication, and proportionality.
5. The allegation concerned dishonesty and conduct likely to amount to a criminal offence. The available evidence justified an inference of significant online publication, including prominence in search results. Each claimant was therefore awarded the capped sum of £10,000.
6. The defendants’ removal of the article did not eliminate the need for relief. Their threat to reverse the removal supported a final injunction restraining republication of the same or substantially similar allegation.
7. The judge observed that future applications under s.13 Defamation Act 2013, potentially affecting third parties, would require careful consideration of notice, freedom of expression, and jurisdiction. Those observations were not necessary to the orders made.

First-instance decision. No earlier judicial decision in the same proceedings is identified in the judgment, apart from the entry of default judgment by Master Gibbon on 28 February 2023.