Idowu Ogunkami v Cynthia Chia [2026] EWCA Civ 588

[2026] EWCA Civ 588Case No CA-2025-001647
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2025] EWHC 1404 (KB)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KINGS BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Susie Alegre (sitting as a Deputy High Court Judge)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13/05/2026
Before
LORD JUSTICE PETER JACKSONLORD JUSTICE ARNOLDLORD JUSTICE WARBY
Between
IDOWU OGUNKAMIClaimant/CYNTHIA CHIADefendant/Respondent
George Symes (instructed by Holloway & Rose Solicitors) for Appellant for The Respondent did not appear and was not representedHearing Hearing date: 5 May 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on 13 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against the assessment of damages for libel following the entry of judgment in default. The issue is whether the High Court under-compensated the claimant by focusing on harm caused to his reputation in this jurisdiction and disregarding harm caused by publication abroad. For the reasons that follow, I would dismiss the appeal. In my judgment, in the circumstances of this case, the judge was entitled to award no more than she did. The claimant failed to establish a right to recover additional compensation. I would refuse his late application to this court to amend his statement of case in an attempt to fill the gap.

The background

[2]On 2 April 2024, the claimant filed a claim form against two defendants, Meta Platforms Inc (Meta) and Cynthia Chia (Ms Chia) seeking “injunctive relief and damages for defamation, under the Defamation Act 2013, relating to statements published by the Second Defendant and posted on a social media website of the First Defendant”. Particulars of Claim were attached, dated 28 June 2023. In November 2024 the Particulars of Claim were amended before service pursuant to CPR 17.1(1) to add a claim for harassment contrary to the Protection from Harassment Act 1997 (the PfHA).[3]The claimant’s pleaded case related to Ms Chia’s behaviour towards him in and after February 2016. In summary, he alleged that in early 2016 he, Ms Chia and Ms Prisca Okoya met at a lounge in London. That night the claimant and Ms Chia had a brief consensual sexual encounter. Thereafter, Ms Chia engaged over a period of some six years or more in a course of conduct amounting to harassment of the claimant, which included not only persistent phone calls and other messages to him in which she falsely accused him, among other things, of having an affair with Ms Oyoke and demanded money. The course of conduct also included posting 22 libellous messages on Instagram and Twitter, in which she falsely accused the claimant of having drugged, raped and impregnated her, of having evaded justice by lying to the police, of paying people to doctor or destroy incriminating evidence, and engaging in other wrong doing.[4]Ms Chia was sued for harassment in respect of this entire course of conduct. She was sued for libel in respect of the Instagram and Twitter posts. Meta was sued for libel as the owner and operator of Instagram, on the basis that, having been notified in November 2022 of the offending Instagram posts and asked to take them down, it had failed and refused to do so within a reasonable time or at all and was therefore liable for continued publication of the defamatory statements complained of. The relief claimed in the Amended Particulars of Claim consisted of orders against Meta and/or Ms Chia for the removal of the offending posts; injunctions prohibiting Ms Chia from posting “anything further in relation to the Claimant on any social media platform” and from contacting “the Claimant or his family via any means, including through his workplace”; and compensatory damages to be assessed.[5]Ms Chia did not file an acknowledgment of service or a Defence. On 18 December 2024, the claimant filed an application for judgment in default. On 13 February 2025, Master Stevens ordered that “1. Judgment be entered for the Claimant against the Second Defendant for an amount of compensatory damages to the Claimant in a sum to be assessed at a further hearing ... 3. The additional remedies sought by the claimant be referred to a judge sitting in the Media and Communications List for determination.”[6]On 25 February 2025, Steyn J, DBE (one of the judges in charge of the Media and Communications List) gave directions for a hearing to be fixed before a judge of that list “to determine the relief to be granted to the Claimant against the Second Defendant consequent upon the default judgment” entered by the Master. The order required the claimant to file and serve a copy of the order he would be asking the court to make, the evidence on which he intended to rely, a hearing bundle, and a skeleton argument. Ms Chia was given the opportunity to file evidence in response and to appear at the hearing. The claimant was required to serve the directions order on Ms Chia. The order bore on its title page a prominent notice in red type advising Ms Chia that judgment in default had been granted against her, that she had the right to apply to set it aside, that a hearing on remedies was to be fixed, and that “If you fail to attend (or be represented at) the Hearing ... the Court is likely to proceed in your absence and make such order as it considers appropriate.”[7]On 7 May 2025, the remedies hearing took place before Susie Alegre, sitting as a Deputy High Court Judge. Mr Symes of Counsel appeared for the claimant. Ms Hamer of Counsel appeared for Meta, with a watching brief. Discussions between Counsel led to the claimant discontinuing his claim against Meta. Ms Chia did not appear and was not represented at the hearing. The judge considered the available evidence as to the reason for her absence and found that there was no reasonable justification for it. She was satisfied that the claimant had taken all reasonable steps to notify Ms Chia, so that the requirements of s 12(2) of the Human Rights Act 1998 (HRA) were met. After the hearing the judge conducted additional investigations to obtain further satisfaction on this score. She concluded that Ms Chia had not been prevented from attending the hearing but had chosen to ignore both the hearing and the proceedings more broadly.[8]The judge read the Amended Particulars of Claim, witness statements that had been filed by the claimant and Ms Okoye, and a skeleton argument filed by Mr Symes. She then heard brief oral submissions from Mr Symes on the remedies to be awarded. Mr Symes invited the judge to make an award of £120,000 to include damages for both defamation and harassment, relying on the awards in two libel cases, Blake v Fox [2024] EWHC 956 (KB) (Collins Rice J) and Aaronson v Stones [2023] EWHC 2399 (KB) (Julian Knowles J). No separate submissions were made in relation to damages for harassment. The judge reserved her judgment. Before finalising it, she invited and received further written submissions from Mr Symes on points of relevance to this appeal. The judge explained the process at paragraphs [45]-[46] of the judgment she later handed down:45. The absence of Ms Chia or any representative on her behalf, made it all the more important, in the interests of justice, to ensure that relevant legal issues and authorities were considered. Because I was concerned that the submissions made before me did not cover everything needed to reach a reasoned decision, I conducted additional research following the hearing. As a result, I requested written submissions from the Claimant on the relevance and correct approach to several authorities and legal issues which I felt were necessary to reach a reasoned decision on the remedies in this case. As the Court has had no engagement from the Defendant or any representative on her behalf, she was not asked for further submissions.46. I asked for further clarification and submissions on the following points: a) the potential impact of the Claimant’s limited connection to the jurisdiction on quantum of damages and injunctive relief with reference to Gatley on Libel and Slander 13th Edition (10-010 and authorities in footnote 124) and to recent authorities: Wei & Ors v Long & Ors [2025] EWHC 912 (KB) and HXZ v NMX [2025] EWHC 697 (KB) and Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria De Borbon y Borbon [2023] EWHC 2478 (KB); b) the relevance of additional comparator cases mentioned in Gatley on Libel and Slander 13th Edition to the quantum of damages, in particular Monir v Wood [2018] EWHC 3525 (QB), Bloom v Robinson-Millar, 7 October 2009 (later given a neutral citation of [2013] EWHC 3918 (QB)); c) the relevance of Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB); [2022] EMLR 2 on the approach to multiple libels in the assessment of quantum of damages;[9]On 17 June 2025 the judge handed down her judgment on remedies. She began by outlining the procedural history and the nature of the claims. She noted that “an issue related to the limitation period for claims brought in defamation could have been raised” (the limitation period is one year from the accrual of the cause of action) but that Ms Chia had not offered any defence. The judge identified the issues for decision as “(a) the appropriate level of damages to be awarded against Ms Chia and (b) the need for and nature of any injunctive relief that may be required against her.” The judge then considered the facts, the law, and the application of the law to the facts of the case. She awarded “a global figure of £25,000 in damages for both the harassment and the libel”, as well as granting injunctive relief. The judge’s reasoning on damages[10]This is to be found in the sections of the judgment headed “Factual Background” ([5]-[25]), “Relevant law” ([48]-[58]) and “Analysis” ([59]-[95]). As to the relevant law, the judge dealt with this under two sub-headings. The first was “General Principles on Quantum of Damages”. At [48], the judge observed that “the court should assess damages on the basis of the Claimant’s unchallenged particulars of claim in the case of a judgment default”. At [49] and [50], the judge cited the summary of the general principles contained in my judgment in Barron v Vines [2016] EWHC 1226 (QB) [20]-[21], and a passage from the judgment of Nicklin J in Monir v Wood [2018] EWHC 3525 (QB) [228], to the effect that “damages for libel cannot be calculated on any mathematical basis”. The claimant has advanced no criticism of this part of the judgment. It is the next part, and the judge’s consequent analysis, which are the focus of complaint.[11]The second sub-heading in the judge’s statement of the relevant law was “Jurisdiction and harm”. In this section of her judgment the judge cited the passage from Gatley and the case of Wei v Long (Hill J) which she had mentioned at her paragraph [46(a)], as well as passages from two other cases, Hussein v Hamilton Franks & Co Ltd [2013] EWHC 462 (QB) [33]-[34] (HHJ Moloney QC, sitting as a Judge of the High Court) and Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3119 (QB), [2017] 4 WLR 22 [103], [119]-[120] (Sir David Eady, sitting as a High Court Judge). The passages cited emphasise the need, when assessing damages for libel, to focus on the reputation of the claimant in this jurisdiction, and on the evidence as to the nature and extent of the injury caused to that reputation by the publications complained of. The judge noted that in Shakil-Ur-Rahman Sir David Eady dismissed the harassment claim on the basis that any harm had been sustained outside the jurisdiction.[12]In the Analysis section of her judgment the judge explained at [59] that she had “considered the facts of the case on the basis of those set out in the amended particulars of claim along with the witness statements of [the claimant] and Ms Okoye and their respective exhibits”. At [61] she noted that the particulars of claim were “quite limited in their particularisation and evidence of harm”. She said that this meant she was “obliged, to a certain degree, to make inferences about harm in the assessment of damages.”[13]At [62]-[64] the judge referred to the claimant’s evidence of the emotional impact on him of what he described as a “campaign of calumny, defamation and harassment”. She said the harm described appeared to arise out of both the harassment and defamation. These two wrongs were “difficult to separate from each other on the pleadings” and it was “difficult to unpick the two on the limited evidence before me”, so she would make a single award reflecting the totality of the damage.[14]Next the judge addressed the “Impact of Jurisdiction”. She began as follows: 65. There has been no dispute about the court’s jurisdiction to hear the claim against Ms Chia. She lives in England and the defamatory statements and the harassment have all emanated from here. There is, however, a question as to the impact of jurisdiction on harm for the purposes of assessing the quantum of damages because Mr Ogunkanmi lives and works outside the jurisdiction. This means that much of the harm suffered by him in relation to both the defamation and the harassment occurred outside the jurisdiction.[15]At [66]-[68] The judge addressed Mr Symes’ submission that “the court can (and should) award damages for the entirety of the harm, not just that in England and Wales ... consideration of the locus of reputation is somewhat artificial, as the court is making an award for loss of reputation in all loci.” The judge noted that Mr Symes had relied for this purpose on the decision of the CJEU in Shevill v Presse Alliance SA [1995] 2 AC 18. That was a case about the application of Article 5 of the Brussels Convention to a claim brought in England by a UK resident against a French publisher. The judge was not able to understand its relevance to this case, where the claimant “lives and works in Dubai” there was “mention of travel in Africa” and there was “nothing in the pleadings to indicate a loss of reputation in any other European jurisdiction”. The judge said she preferred to adopt the approach identified in Hussein and Shakil-Ur-Rahman.[16]The judge found that the main locus of the claimant’s reputation was outside the jurisdiction. The Instagram posts had been seen by members of the Nigerian community in England, some of whom knew the claimant and understood the posts were about him. But the evidence of harm was “very limited and generalised” and there was a “lack of particularisation of harm in the pleadings or in submissions”. In particular there was “very little specific evidence of the harm to Mr Ogunkamni’s reputation arising from the defamation, either within this jurisdiction, or globally”. This had necessarily had an impact on the overall assessment of the appropriate damages.[17]At [69]-[73] the judge considered the harm caused by the harassment. She held, citing Shakil-Ur-Rahman, that she could “only consider harm experienced in this jurisdiction”. She noted the claimant’s evidence that he was in a continuous working and travelling pattern “with and in Dubai, Singapore, Geneva, Kenya, Rwanda, South Africa, Uganda, United States of America”. The evidence showed only three short visits to England since the harassment began. The judge was “unable to find any more than negligible harm actually experienced within this jurisdiction” and found that she had insufficient evidence to justify a separate award for damages for harassment. The harassment did however provide context to the full picture of the defamation.[18]The judge proceeded to analyse the case in relation to damages for libel, applying the principles summarised in Barron v Vines. She began with the gravity of the allegations, accepting that the “all the defamatory statements allege very serious criminality ... that would cause serious harm to a person’s reputation”. The statements were “clearly designed to hurt the Claimant in his personal and professional life, to undermine trust in him and to drag him through the dirt publicly with absolutely no justification”.[19]The judge then considered the extent of publication. She noted the awards in Blake (£90,000 for an allegation of paedophilia) and Aaronson (£110,000 for allegations that the claimant had raped several people) but she held that this case was “quite different” when it came to the extent of publication. In the cases mentioned there had been very extensive publication. Here, taking the case at its highest, it seemed that “around 70 people engaged with the defamatory posts on Instagram which might indicate that a number in the low hundreds could have seen them.” That made the case closer to Monir, where the award could have been £250,000 or more if the publication had been in a national newspaper, but the small scale of publication reduced the award to £40,000. The judge noted that the evidence of harm in that case was “detailed and severe” which was not the position in the present case.[20]At [90]-[93], the judge addressed the need for the damages award to restore the claimant to the position he would have enjoyed had he not been defamed (Steel and Morris v United Kingdom (2004)41 EHRR [37], [45]). Her conclusion was that the impact of the defamatory posts on the claimant’s reputation was “likely to have been minimal”. This was because the campaign of harassment began well before the libels were published. So the claimant’s family and friends would already have been aware that he had been “subjected to a campaign of harassment arising out of a brief extra-marital affair”. Some of them would have known that he had travelled to the UK to be interviewed about an alleged rape. So much of the damage had already happened before the libels. The online posts “only served to aggravate the situation and broaden the range of people who might be aware of it”. Those who were aware of the harassment “would be unlikely to actually believe there was any truth in the posts.”[21]That said, the judge noted the need for damages in a defamation action “to vindicate the Claimant’s good name”. She said it should be clear from her judgment that there was no truth at all in the defamatory posts. There was no “kernel of truth” and nothing that justified the “horrific campaign” against the claimant, which was “clearly malicious”. Weighing up the gravity of the allegations, the backdrop, and the failure to engage against the “very meagre evidence of harm, particularly in this jurisdiction, and the limited distribution of the libel”, the judge arrived at the figure of £25,000.

The appeal

[22]The appeal was pleaded and argued by Mr Symes. Ms Chia did not submit any written materials and was not present or represented at the hearing. We were told that she was in custody for an offence, the details of which were unknown, and that she was the subject of a pending contempt application alleging breaches of the injunctions granted by the judge. We were however told that Ms Chia had been served with the appeal bundle. We were satisfied that she had fair and proper notice of the appeal hearing.[23]The Grounds of Appeal alleged that the judge “materially erred” because “her decision to reduce damages on the basis that the Claimant’s locus of reputation was outside the jurisdiction was a fundamental misdirection, and she should instead have awarded damages for harm globally.” It was asserted that “claims brought in the home court of the Defendant can result in an award of damages which covers harm globally, rather than just representing harm in the jurisdiction”. For these propositions the claimant relied on Shevill and the decision of Collins Rice J in the Sayn-Wittgenstein-Sayn case mentioned at [8] above. The judge was also said to have erred in placing reliance on Shakil-Ur-Rahman [118] because that paragraph related to harassment and, as the judgment in Shakil-Ur-Rahman showed, the position is different when dealing with libel. It was said that by “failing to account for harm suffered outside the jurisdiction” the judge had made an award of damages for defamation that was “artificially low.” The court was invited “to increase the amount of damages awarded to the Claimant/Appellant, in order to reflect the harm suffered globally, not just that suffered in the jurisdiction of England and Wales, to which it had been limited in the lower court.”[24]To address these grounds of appeal, it is necessary to consider three topics, and the way they were dealt with in this case:(i) the court’s jurisdiction over claims in respect of foreign publication;(ii) pleading and proof of such claims;(iii) the right approach to damages following default judgment.

(i) Claims in respect of foreign publication: jurisdiction

[25]The claimant’s arguments on this issue were misdirected, for three reasons.[26]First, the decisions in Shevill and Sayn-Wittgenstein-Sayn are not capable of advancing the claimant’s case. These are decisions about the application to claims in tort of the Brussels Convention (Shevill) and the Recast Brussels Regulation or “RBR” (Sayn-Wittgenstein-Sayn). Those are both instruments concerned with the allocation of civil jurisdiction in EU states. The Convention and the RBR had the force of law in relation to proceedings instituted in the United Kingdom before the Brexit process concluded. The proceedings in Shevill and Sayn-Wittgenstein-Sayn both fell into that category. But Brexit brought the effect of the Brussels regime in the UK to an end. By virtue of the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019 (SI 2019 No 479) the Brussels regime does not apply to proceedings, such as the present case, brought after the end of the transition period, 31 December 2020.[27]Secondly, as the judge rightly saw, the claimant has no need to rely on the Brussels regime to establish the proposition that the courts of England and Wales have jurisdiction, that is to say the right and power, to determine claims in tort in respect of harm sustained outside England and Wales. The jurisdiction of the courts of England and Wales to determine such claims is now governed by the common law and relevant statutory provisions. Ms Chia was duly served with these proceedings in this jurisdiction. That is the general basis on which a defendant is subjected to the court’s jurisdiction: Barton v Wright Hassall [2018] 1 WLR 1119 [8]. And at common law the court’s jurisdiction over a party properly served within the jurisdiction is in principle unlimited.[28]The court may decline to exercise its jurisdiction over a claim on the grounds that England and Wales is not the appropriate forum in which to try that claim. In defamation, s 9 of the Defamation Act 2013 provides that the court “does not have jurisdiction to hear and determine” a claim for defamation against a defendant who is not domiciled in the UK unless it is satisfied that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement”. But it is for the defendant to raise such grounds for declining jurisdiction and if she fails to do so the court will treat her as having accepted that the court has jurisdiction to try the claim: see Soriano v Forensic News LLC [2021] EWCA Civ 1952, [2022] QB 533 [13] and [42]ff., and CPR 11.1(5). Ms Chia did not seek to challenge the court’s jurisdiction on these or any other grounds. It is hard to see that she had any grounds for doing so.[29]The third and most important reason why this strand of the claimant’s arguments is misdirected is that the issue to be addressed is not whether the High Court had jurisdiction to hear and determine a claim for libel against Ms Chia in respect of harm to the claimant’s reputation outside England and Wales. The judge did not decide that she lacked such jurisdiction. Her conclusion was, in substance, that the claimant had failed to establish a right to recover any, or any substantial, damages in respect of reputational harm abroad. The issue accordingly is whether that conclusion was wrong. Put another way, the question to be considered is whether the claimant had made out a sufficient legal and factual basis for the court to exercise the jurisdiction he invokes, and to award him damages for libel published abroad. (ii). Claims in respect of foreign publication: pleading and proof[30]On these issues there has been some unfortunate confusion, and some established principles were not confronted by the claimant until shortly before the hearing of this appeal.[31]The law relating to claims for defamation in respect of publication abroad is summarised in Chapters 26 and 28 of Gatley on Libel and Slander (13th ed, 2022). Paragraph 26-018 explains that claims in respect of foreign publication are subject to the common law requirement of “double actionability”. This is a rule of private international law, affirmed by the House of Lords in Boys v Chaplin [1971] AC 356, that applies to tort generally. In 1995, when the double-actionability rule was abolished by statute, defamation was excluded: Private International Law (Miscellaneous Provisions) Act 1995, ss 10, 13. Defamation is also outside the scope of the Rome II Regulation (Regulation (EC) No 864/2007) which governs the law that applies to tort generally, and continues to apply post-Brexit. Accordingly, to maintain a claim for defamation in respect of publication abroad the behaviour complained of “must be civilly actionable both by English law and by the law of the place where foreign publication took place” (Gatley, loc. cit).[32]The legal and procedural consequences of the double-actionability rule are discussed in Gatley at paragraphs 26-018 and 28-019, with reference to case law including McLean v David Syme (1970) 92 WN (NSW) 611, 617; University of Glasgow v Economist Ltd [1997] EMLR 495; ReachLocal UK Ltd v Bennett [2014] EWHC 3405 (QB), [2015] EMLR 7 [19]; Ames v Spamhaus Project Ltd [2015] EWHC 127 (QB), [2015] 1 WLR 3409 [103]-[110]; OPO v MLA [2014] EWCA Civ 109, [2015] EMLR 4 [4]; Soriano v Forensic News (above) [63]-[64]; and Brownlie v FS Cairo (Nile Plaza) LLC [2021] UKSC 45, [2022] AC 995 (Brownlie II) [119]-[126], [163]. Principles of law and practice identified in the discussion and the case law include the following:(1) Where foreign publication is not pleaded, the claim must be taken to be limited to publication in England and Wales.(2) Where the words complained of have been published elsewhere than in this jurisdiction the claimant should (a) plead the publication in each jurisdiction as a separate cause of action and (b) include in his particulars of claim an averment that such publication is actionable under the laws of the country in which publication took place.(3) A claimant who does so may rely on the “presumption of similarity”, that in the absence of evidence to the contrary the court will assume that English law and foreign law are the same. Where the claimant does so the burden of providing that foreign law is different from domestic law passes to the defendant.(4) The presumption of similarity does not have to be applied. There are cases in which no evidence of foreign law has been adduced but the court has declined to apply the presumption, because it knows it to be false, or considers it improbable. The presumption is only ever a basis for drawing inferences about the probable content of foreign law in the absence of better evidence. There is no warrant for applying it unless it is a fair and reasonable assumption to make in the particular case.(5) Proof of a claim in respect of foreign publication may require the claimant to establish that such publication caused or was likely to cause serious harm to the reputation of the claimant within the meaning of s 1(1) of the Defamation Act 2013.[33]The fifth principle is a proposition advanced by the authors of Gatley. It appears sound on its face but has not yet been litigated. The first to fourth principles are however all grounded in first instance or higher authority. And the first to third principles have represented the conventional wisdom in this field for as long as I can remember.[34]These principles were not adhered to in the pleading and presentation of the claimant’s case in the High Court. The Amended Particulars of Claim do not expressly allege any foreign publication, nor any reputational harm abroad. The particulars tell the reader that the claimant lived in Dubai, and mention two visits to this country. But they do not contain any allegation about the claimant’s business or his reputation or any dealings in any jurisdiction with anyone other than Ms Chia, Ms Okoye, and the Metropolitan Police. There is no averment about foreign law, nor any mention of the presumption of similarity.[35]In the circumstances, if the law is as stated in Gatley the judge could have rejected any submission that the claimant was entitled to recover damages for “global” harm on the basis that he had failed to plead the essential ingredients of a claim to be compensated for publication anywhere outside England and Wales. The judge did not do that, apparently because the points of law I have identified were not drawn to her attention. But the application of the principles identified above would seem fatal to this appeal.[36]With that in mind, the passages I have cited, and some of the key authorities, were drawn to the claimant’s attention by the court some 10 days before the hearing of the appeal. In response, shortly before the hearing, Mr Symes submitted a supplemental skeleton argument outlining further submissions, and the claimant filed an application notice to which I shall refer later, seeking permission to re-amend his Particulars of Claim. Mr Symes’ argument, as developed at the hearing, was on the following lines.[37]First, in the written argument it was suggested that where a defendant causes publication abroad by actions carried out in England the principles to which I have referred do not apply. That contention was rightly withdrawn in oral argument. What matters in defamation is the publication of the defamatory statement, which is to say its communication to someone other than the claimant. The tort is committed, or not, in the place of publication. That is the basis on which all the authorities cited have proceeded. Secondly, it was submitted that nothing in the authorities suggests that the English court cannot deal with claims relating to foreign publication. I agree, but for the reasons I have explained that is not the issue. Thirdly, Mr Symes submitted that England and Wales was the correct forum for the claims. Again, I agree, because Ms Chia was served here, has not disputed jurisdiction and CPR 11.1(5) applies. But again, that is not the issue.[38]In relation to double actionability, Mr Symes submitted that it cannot or should not be the case that the Particulars of Claim “had to expressly plead for global harm in order for it to be recoverable”. In support of an argument that the law was not as stated as Gatley, Mr Symes cited paragraph [112] of Lord Leggatt’s judgment in Brownlie II for the proposition that where a claimant does not expressly plead a case about foreign law the court will apply “the default rule”, by which the court “treats English law as applicable in its own right where foreign law is not pleaded”. It was submitted that the absence of any reference to foreign law in the Particulars of Claim meant that proposition was applicable here. Mr Symes also cited passages from the judgment of Saini J in Qatar Airways Group QCSC v Middle East News FZ LLC [2020] EWHC 2975 (QB) for the propositions that he was free to proceed on the basis that the case was governed by English law, and even if foreign law was applicable there was no need to plead any case about that law. In the alternative, Mr Symes invited the court to depart from the position as set out in Gatley on the grounds that “publications now take place predominantly on the internet, with a global audience accessible in seconds”; it would be impracticable and disproportionate to require a claimant to plead that he seeks damages for harm to his reputation in 190+ countries and that the law in those jurisdictions is sufficiently similar as to mean that the defendant’s actions would be considered tortious there.[39]These submissions invited the court to disapprove or depart from principles that are generally considered to be firmly established, and which are enunciated in the leading specialist textbook by reference to copious authority going back several decades, if not more. Apart from brief reference to a passage in the speech of Lord Leggatt in Brownlie II, Counsel made no reference to any of the detailed reasoning of the courts in any of the authorities I have cited at [32] above. Mr Symes’ submissions about Qatar Airways were concise. The practical reasons advanced for adopting such a radical reinterpretation of the law were not developed beyond the assertion I have mentioned, that the existing law is inapt in the modern world of communications. There was no attempt to address questions such as whether it would be appropriate for this court to presume that the laws of every country in the world afford a civil remedy for defamation.[40]It would take a good deal more than this to convince me that we are bound to or should depart from the law and practice as stated in Gatley. I would make the following specific points.[41]First, I believe the legal reasoning, so far as it goes, to be unsound. We were presented with no reason to hold that the common law rule of double actionability does not apply to a claim for defamation. And there is nothing in the cases cited to support the proposition that in a case where that rule applies it is legitimate for the claimant to plead no case at all about foreign law. In both Qatar Airways and Brownlie II it was common ground that foreign law applied. The claimants had pleaded that foreign law gave them a cause of action. The issue (so far as relevant) was whether the claimant was obliged to plead the content of that law.[42]In Qatar Airways the relevant claim was for malicious falsehood published abroad. The defendant challenged the grant of permission to serve the claim form outside the jurisdiction contending, among other things, that the claim was subject to the double actionability rule, and that the claimant had failed to plead the content of the foreign law and thereby failed to show a serious issue to be tried. Relying on, among other cases, OPO v MLA, Saini J held that, assuming that the double actionability rule applied, it was enough for the claimant to plead foreign actionability and reliance on the presumption of similarity. He did not find that a claimant, knowing that foreign law was applicable, was entitled to disregard that fact and plead no case of foreign law at all. There is nothing in Qatar Airways that is inconsistent with the law as stated in Gatley.[43]Brownlie II was a claim for personal injury sustained in Egypt. The double actionability rule did not apply and was not addressed. It was common ground that Egyptian law applied pursuant to Rome II. The claimant had expressly pleaded that the acts complained of were actionable by Egyptian law. The issue for resolution was, again, whether the claimant was obliged to plead the content of that law. But Lord Leggatt did say at [100], that “Foreign law, when relied on, is a matter which must be pleaded so that the defendant knows the case it has to meet.” And at [109] he cited Rule 205 of Dicey on Conflict of Laws, which states that “(1) In any case to which, in accordance with this Digest, foreign law applies, that law must be pleaded and proved as a fact ...” When referring to the “default rule”, Lord Leggatt did not identify this as a way in which a party making a claim to which foreign law plainly does apply can avoid any issue about that law by simply ignoring it.[44]Secondly, I do not see the mere fact that modern technology allows communications to have instantaneous global reach as a reason to change or modify the law and practice in this area. This is hardly a recent phenomenon. Most publication cases today are concerned with online communication. This is true of many of those cited above, including ReachLocal, Ames and Soriano. Experience, and passages in these and other decisions, show that Mr Symes was wrong to submit that modern communications have transformed the factual context, making it impossible or impracticable for a claimant to state and prove a case about where in the world his reputation was harmed. Indeed, modern technology may make this easier. Claimants are frequently able to formulate and present a cogent case on this issue, relying on evidence as to nature and extent of their reputation, the nature of the publication, the nature and scale of its readership or likely target audience, such as analytics, direct evidence of republications and other responses, such as loss of business, and other evidence on which sensible and realistic inferences can be based. In the present case, the judge relied on evidence about engagements with the Instagram posts to draw inferences, which Mr Symes accepted was legitimate.[45]For these reasons, it seems to me that this appeal must fail on the basis that the claimant failed to comply with the established principles I have identified. He did so by failing to plead a factual case of foreign publication and, further or alternatively, by failing to assert that the publications complained of were actionable by the law(s) of the place(s) of publication. Had that been done, and had he relied on the presumption of similarity, the claimant might have been entitled to ask the judge to award him damages to compensate him for reputational harm flowing from publication in foreign jurisdictions, and any consequent distress and embarrassment. Having failed to do any of this, he had no right to ask the judge for such an award. He was in one sense fortunate that the judge did not approach the case in that way but did consider whether to award damages in respect of foreign publication. (iii). The assessment of damages following judgment in default[46]I would dismiss this appeal on the further and distinct basis that, regardless of the principles I have already discussed, the judgment obtained by the claimant gave him everything to which he was entitled as a matter of ordinary civil procedure. He failed to plead or prove that he was entitled to anything more.[47]This was, so far as relevant, “a claim for an unspecified amount of money” within the meaning of CPR 12.5(3). In such a case the rules allow a claimant to obtain a default judgment by filing a request in the appropriate practice form (CPR 12.4(1)(b)). The judgment to be given is “for an amount to be decided by the court” (CPR 12.5(3)) and “the court shall give such judgment as the claimant is entitled to on the statement of case” (CPR 12.12(1)).[48]So far as liability is concerned, the Particulars of Claim are, in effect, a “proxy” for a judgment, setting out the basis of liability: New Century Media Ltd v Makhlay [2013] EWHC 3556 (QB) [31]-[34] (Carr J, DBE). Put another way, “… the general rule is that where judgment has been entered in default the court will proceed to determine the remedies that the claimant should be granted on the basis of the unchallenged pleaded case”: Suttle v Walker [2019] EWHC 396 (QB) [36] (Nicklin J). The necessary implication is, I think, that the claimant is not entitled to a judgment, or to remedies, which are not merited by anything he has pleaded.[49]Further, the authorities suggest that whatever the position may be in respect of liability, the amount of any damages properly claimed still has to be proved by the claimant. This seems consistent with the rules, which provide that the claimant can file evidence which need not be served on a party who has failed to acknowledge service (r 12.12(2)). There is however no provision that prohibits a defendant from contesting the claimant’s case on damages, for instance, by disputing causation or quantum. In Wei v Long (above) at [23], the conventional view was summarised in this way by Hill J, which has not been challenged on this appeal:
“Accordingly, it is necessary to take the claimants’ pleaded case on liability as proven … and to assess the damages to which the Claimants are entitled. However, that does not mean that the court is bound to accept the Claimants’ assertions to the effect that particular types of damage were in fact caused by D1’s torts: rather, they need to make out their case on causation as to the type and level of damage caused.”
[50]The Part 53 Practice Direction sets out relevant standards for pleading a case of publication and consequent damage. In any media and communications claim the claimant “must in the particulars of claim give full details of the facts and matters on which they rely in support of any claim for damages” (paragraph 2.2). In a defamation case, the particulars of claim must set out “when how and to whom the statement was published”, and if it is impracticable to set out all such persons then “all facts and matters relied upon to show(a) that such publication took place and(b) the extent of such publication” (paragraph 4.2(2)). The claimant is also required to set out the facts and matters relied upon to show that the publication “has caused or is likely to cause serious harm to the reputation of the claimant” as required by s 1 of the Defamation Act 2013 (paragraph 4.2(3)). These standards were not met in the present case.[51]I have outlined what was and was not pleaded here about how and to whom the statement was published, and the extent of publication. The particulars do allege that “posts from [Ms Chia’s] Instagram accounts were published to the Claimant’s friends, family members, colleagues, and the general public.” But they do not identify anyone by name, nor do they tell the reader which publications those people read and where they were when they did so. The Particulars aver reputational harm by inference, based on the gravity of the imputations complained of. No specific facts are relied on. I cannot accept Mr Symes’ submission that it was implicit in the pleaded case that the claimant was complaining and seeking damages in respect of publication in jurisdictions outside England and Wales. The judge understated the position when she held that the claimant’s pleadings in relation to reputational harm were “quite limited”. It is axiomatic that a claimant must make his case clear to the defendant. The reality was that the statement of case did not entitle the claimant to a judgment including damages for publication anywhere outside England and Wales.[52]Again, the claimant was fortunate that the judge did not apply that principle rigorously. She took account of foreign publication. But although she observed that the main locus of the claimant’s reputation was outside the jurisdiction so that “much of the harm” occurred there, the judge also noted that there was “very little specific evidence” of reputational harm “either within this jurisdiction, or globally” (my emphasis). The judge’s findings on the evidence before her included unchallenged conclusions that the extent of publication was limited, amounting to a few hundred people at most, most of whom will not have believed the allegations. In assessing the harm caused by publication within the jurisdiction, the judge applied the commonsense propositions that the extent of the harm depends on the extent of the claimant’s reputation. For that, the judge relied on Hussein v Hamilton Franks, Shakil-Ur-Rahman, and Wei v Long, all cases in which claimants based abroad sued in respect of publication here and made no claim in respect of foreign publication. There is no challenge to the judge’s approach to that aspect of the case. Viewed overall, the judge’s approach to quantification was careful and principled. In all these circumstances I can see no basis for challenging her award as insufficient. On the contrary, whilst the allegations are unquestionably serious, in the circumstances of this case an award of £25,000 coupled with a reasoned judgment that clearly vindicates the claimant is in my view a perfectly adequate outcome. Permission to amend? The application

Permission to amend?

[53]The claimant had a fallback position in relation to foreign publication. Two clear days before the hearing of the appeal he filed an application notice seeking permission “to retrospectively amend” the Particulars of Claim “to include explicit reference to global harm, rather than implicit reference.” The application notice stated that the claimant had always been contending “that his reputation had been harmed globally” by internet publication, and “in the event that express pleadings are required” he sought permission to amend “merely to include an express reference to the foreign element”.[54]It was recognised that this would amount to adding “new claims” within the meaning of CPR 17.4(2) but it was argued, as Mr Symes did at the hearing, that such claims arose from “the same facts … as are already in issue” within the meaning of that rule. It was argued, and Mr Symes submitted at the hearing, that if permission to amend were not given the claimant would suffer “insurmountable” prejudice as the expiry of the limitation period meant he would not be able to bring any separate claim for damages. Pressed to identify the additional sum he would submit was appropriate Mr Symes declined to be drawn. He submitted that there would be no prejudice to Ms Chia, who plainly would not have engaged with the proceedings however they had been framed.[55]The application notice did not include or attach the wording of the draft amendment sought. This was addressed in the supplemental skeleton argument to which I have already referred, as follows: Whilst he seeks (and sought) harm globally, the Appellant would add the following as a minimum: The Claimant claims in the Courts of England and Wales for harm globally, and avers that he suffered harm to his reputation in both England and Wales, and Dubai. The Claimant further avers that, for the purposes of the double actionability rule, the Defendant’s actions would constitute defamation in all applicable jurisdictions. The Claimant claims in the Courts of England and Wales for harm globally, and avers that he suffered harm to his reputation in both England and Wales, and Dubai. The Claimant further avers that, for the purposes of the double actionability rule, the Defendant’s actions would constitute defamation in all applicable jurisdictions.[56]The application notice was not issued until the day of the hearing. By the time of the hearing, it had not been served on Ms Chia. An unsealed copy had been sent to her last known email address. There was no evidence nor even an assertion that she had received and read the email. Given that she was in prison there was reason to doubt that she had. The supplemental skeleton argument had not been sent by email. Mr Symes submitted that the lack of service or notice was of no consequence given Ms Chia’s lack of engagement to date, and that if we were not persuaded of that we could and should adjourn the hearing of the application.

Analysis

[57]Fourteen months after the entry of default judgment, nearly a year after damages were assessed, and on the eve of an appeal hearing, the claimant seeks to add new claims with the clear aim of obtaining a substantially increased award of damages for libel. He does so without having served the application notice and without proof that the respondent is aware of the application. By concession, the new claims would be statute-barred if made by separate action. The doctrine of relation back means that granting the application would deprive Ms Chia of a limitation defence. There is no evidence, and no satisfactory explanation, as to why the application is made so late, and has not been served or properly notified in time. In these circumstances I would dismiss the application on the following grounds.[58]I think it likely or at least arguable that the court lacks jurisdiction to grant the relief sought, because(a) it seeks relief affecting the right to freedom of expression in circumstances where the grant of such relief is prohibited by s 12(2) HRA; and/or(b) the power to allow an amendment after judgment does not extend to permitting an expansion of the claim at such a stage, whilst maintaining the default judgment (that would certainly be an exceptional course to take and, as far as my researches go, unprecedented); and/or(c) the new claims do not fall within the exception provided for by s 35 of the Limitation Act 1980 and CPR 17.4(2) (see the analysis in Lokhova v Longmuir [2017] EWHC 2579 (QB), [2017] EMLR 7, [42]-[49]).[59]Assuming that jurisdiction exists, the application would fall to be refused on conventional grounds relating to late amendments. Granting the application would be inconsistent with the overriding objective. Despite Mr Symes’ reticence on the issue of quantum, it is clear that the application raises matters of consequence; the lateness is not explained and is inexcusable; it is possible, even likely, that Ms Chia would ignore the application but she has had no opportunity to choose; she has not waived her right to procedural fairness; there is no justification for proceeding without service, and without proof that the respondent has been notified; nor is there a reasonable basis for granting an adjournment, as was at one point suggested by Mr Symes; there has been no attempt to explain in evidence why justice to the claimant and to other litigants requires the amendment; finally, and in any event, the proposed amendment ought not to be allowed as it is “a loose, ineffective pleading at the last hour”.[60]I borrow that phrase from the judgment of Lord Denning MR in Associated Leisure Ltd v Associated Newspapers Ltd [1970] QB 451, 455. In the present context, what I mean by it is this. At this late stage it is incumbent on the claimant to present the court with a clear case that might succeed. Yet the intended geographical scope of the new case is unclear. The proposed amendment is equivocal and internally inconsistent, and is expressly advanced as no more than a starting point that might be adjusted upwards. In argument, Mr Symes initially said that the “global” claim was only in respect of England and Wales and Dubai. Questioned, he indicated he might seek to expand it to cover Nigeria. The absence of any reference to the presumption of similarity would risk causing difficulty. Critically, in my view, the proposed amendment asserts the existence of harm in Dubai without alleging publication there or providing any other supporting factual averments. It does not even assert the existence of publication or reputational harm in any other foreign jurisdiction. I do not see how the amendment could help the claimant bypass the judge’s findings of fact.

Summary of conclusions

[61]My conclusions can be summarised as follows. The judge rightly held that she had jurisdiction to entertain the claim. She was generous to the claimant in approaching the case on the footing that he was entitled to claim damages for harm caused by publication abroad. He was not. He had failed to plead and prove the necessary ingredients of such a claim in the manner required by the authorities and/or the rules of court. On the judge’s unchallenged findings of fact her award of damages was sufficient. The late application for permission to amend should be rejected. The appeal should be dismissed. LORD JUSTICE ARNOLD:-[62]I agree. LORD JUSTICE PETER JACKSON:-[63]I also agree.

Cited in 1 later judgment