Claudio de Giovanni v Cormac Kehoe & Ors

A default judgment must be set aside where the claim form was not validly served. Parallel proceedings concerning the same defamation publication, particularly where one set was brought to exert pressure in relation to the other, constitute an abuse of process. Dismissal after non-compliance with a CPR 7.7 notice is discretionary. A short, promptly addressed delay in challenging jurisdiction may be excused where refusal would deprive the defendant of a clear challenge to unserved proceedings.

The claimant brought two defamation claims arising from the same online article. The first was issued in the County Court against one defendant, who obtained default judgment. The second was issued in the High Court against all three defendants.

The defendants applied to set aside the default judgment, strike out the County Court claim, dismiss the High Court claim for failure to comply with a CPR 7.7 notice, and extend time for a jurisdiction challenge. The central issues were valid service, abuse of process, discretionary dismissal, and the consequences of failing to serve the High Court claim form within four months.

1. The email sent before issue of the County Court claim form was ineffective. Email service was also invalid because the defendant had not indicated willingness to accept service by email. Service at an address where he had not lived for over two years was invalid under CPR 6.9(2); the claimant had not established a good arguable case that it was his last known residence. The default judgment was therefore mandatorily set aside under CPR 13.2(a).
2. Alternatively, the judgment would have been set aside under CPR 13.3(1)(b)(i). The three-stage Denton test applied. The prompt application, defective service, use of the wrong court, failure to comply with the defamation pre-action protocol and duplicative proceedings supplied good reason.
3. The County Court claim was struck out under CPR 3.4(2)(b). It was plainly abusive to pursue duplicate defamation claims concerning the same publication, especially where the County Court proceedings were brought to exert pressure in relation to the threatened High Court claim. The unsupported addition of a further sum described as interest was an additional reason to set aside, but did not independently require strike-out.
4. Non-compliance with the CPR 7.7 notice did not require dismissal. There was no presumption in favour of dismissal, and the evidence showed that the claimant intended to pursue the serious claim.
5. The defendants were not obliged to acknowledge service before valid service of the claim form. Having acknowledged service, however, they were required to challenge jurisdiction within 14 days. The 12-day delay was excused after consideration of all the circumstances, including the defendants’ prior indication of their intention, prompt application, absence of timetable prejudice, and the claimant’s continuing failure to serve despite clear information.
6. The court declared that it had no jurisdiction, or would not exercise jurisdiction, and set aside the High Court claim form under CPR 11(6). No formal application or evidence justified retrospective validation of email service or an extension of time for service.

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