Mole v Hunter [2014] EWHC 658 (QB)

[2014] EWHC 658 (QB)Case No HQ13D03510
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27/03/2014
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
Susannah MoleClaimantAngela HunterDefendant
Susannah Mole appeared in Person accompanied by her father as McKenzie friend. for in personAngela Hunter appeared in person and was not accompanied. for in personHearing Hearing date: 26 February 2014
Judgment
[1]These proceedings were transferred to the High Court from the Clarkenwell and Shoreditch County Court by order of the District Judge made on 1 March 2013. The reason for the transfer is that the Defendant, Ms Hunter, had on 27 November 2012 purported to serve a counterclaim in which she claimed damages for defamation and the County Court had no jurisdiction in respect of actions for defamation.[2]There have been a number of orders made in this court by Masters. When I refer below to “the Master” that does not mean that all of them were made by the same Master: in fact different Masters made different orders. On 12 September 2013 the Master made a judgment in default in an order as follows:
“No defence to the counter claim having been filed it is ordered that the Claimant must pay the Defendant an amount which the court will decide and costs… List a Case for Management Conference for consideration of remedies before Master Leslie on 15 November 2013…”
[3]On 15 November 2013 the Master made directions referring the matter to be heard by myself. He ordered Ms Mole to serve a witness statement supporting her application to set aside the judgement by 29 November 2013. He ordered Ms Hunter to serve a witness statement in answer, and evidence in support of the assessment of damages, by 20 December 2013, and Ms Mole to serve evidence in reply by 17 January 2014.[4]Ms Hunter is the landlord of a house in London which she lets for multiple occupancy on a shorthold tenancy to a number of tenants. On 14 September 2011 she granted a tenancy to Ms Mole and Ms Benfield. The tenancy was expressed to be for a fixed term from 24 September to 23 December and required a deposit by the tenants of £850 which was to be protected by the Deposit Protection Scheme. Ms Hunter states that the house was permitted to be a House in Multiple Occupancy, and as such was subject to regulation for which the local council is responsible.[5]At about the same time she had granted tenancies to number of other tenants including a Mr Lewis and a Mr Northam.[6]On 4 November 2011 Ms Mole asked to extend the tenancy beyond 23 December 2011. On 23 January 2012 Ms Mole gave notice terminating the tenancy, which came to an end on 23 February 2012. By this time it appears that relations between the parties were deteriorating[7]On 31 January 2012 Ms Hunter wrote to Ms Mole about an issue that she said had arisen concerning the cleaning of the property and the notice that she had to give to her tenants before she visited the property. On 2 February 2012 Ms Mole and Ms Benfield sent an e-mail to Ms Hunter in which they said that they had sought advice. They set out the advice which included:
“You by law must provide us with at least 24 hours notice of a specific visit and/or we must agree a suitable time that is convenient for both parties. Failure to do so constitutes harassment and you can be prosecuted for doing so. Us refusing you access to the house if you fail to give notice for specific occasions is not a breach of our contract and we are legally within our rights. If you let yourself or others in without permission it constitutes harassment. Having said all the above we are reasonable people and do not wish to make viewings hard for you…”
[8]There have appeared on the internet postings which included Ms Hunter’s name and the address of the house. The evidence of what appeared, and on what date, is unclear, but there are four relevant sheets of paper before the court. One of these is in an e-mail dated 10 April 2013 from Ms Hunter to Edmonton County Court (which is produced to the court by Ms Mole in a witness statement dated 20 November 2013) and the other three were produced at the hearing by Ms Hunter. i) Attached to the e-mail dated 10 April 2013 is an e-mail from Ms Hunter dated 26 September 2012 to the operator of a website into which Ms Hunter has pasted copies of three snippets produced on a Google search. Each snippet has the address of her house, and one of them is dated 15 May 2012 and includes the words “crook, scam, liar”. A third has no date, but includes the same three words. ii) One of the three sheets produced by Ms Hunter does not appear to bear the date on which it was printed out, but it contains 10 snippets about the address of Ms Hunter’s house, and one of these 10 snippets includes the words “crook, scam, liar”. iii) The second sheet produced by Ms Hunter bears the date “9/3/2012” and contains a photograph of the house and 14 lines of text. The text purports to be written by tenants who refer to themselves as “us” and it includes a number of complaints. These include complaints about Ms Hunter similar to those made in the e-mail of 2 February and a complaint that:
“she will refuse to return your deposit and you will have to take her to court to get it back. This has happened to us, and to the last 4 lots of tenants before us. She is a crook pure and simple…” iv) The third sheet produced by Ms Hunter bears no date but contains a photograph of Ms Hunter while she was in a crowd at some event taking place in the street. There are four lines of text which are clearly incomplete. The text includes “Warning [the address of Ms Hunter’s property] … We cannot warn you too strongly against not renting…”
[9]Ms Hunter states that it was not until about September that a website came to her attention.[10]On 31 May 2012 Ms Benfield made a statutory declaration to the Deposit Protection Service stating that she believed she was entitled to £727 from Ms Hunter in her capacity as lead tenant. On 24 August 2012 Ms Mole issued a Claim Form in the County Court claiming £845 plus the court fee. On 18 September 2012 judgment was entered against Ms Hunter in default. But on 19 November 2012 the District Judge heard the parties in person and ordered that that judgment be set aside.[11]Meanwhile Ms Hunter was sent by a relative in the USA a printout from a webpage. Ms Hunter produced this to me in court in the form of the three pages referred to above. Ms Hunter was able to identify the person to whom she needed to apply to have the posting taken down. She managed to have it removed as offensive material within a few weeks.[12]There is no dispute that there was a posting about Ms Hunter on the internet. But a print out was produced to Ms Mole in court for the first time.[13]On 26 November 2012 Ms Hunter submitted the form for a Defence and Counterclaim to the County Court. The form has a section 4 relating to counterclaims. There is a box next to the question:
“If your claim is for a specific sum of money, how much money are you claiming?”
Ms Hunter entered the figure £1,500. However, as appears from the Counterclaim, she was not claiming a specific sum of money. She was claiming an amount to be assessed by the court, that is what is known as general damages. There is nothing in the Counterclaim that can be read as a claim for special damages.[14]So far as material the counterclaim reads as follows: “34 The claimant and her partner falsely and irrationally accused me of harassing them when I attempted to carry out my legal duties as a landlord under Section 11(6) of the Landlord and Tennant 1985 Act: in a lease in which the lessor repairing covenant is implied there is also implied a covenant by the lessee that the lessor or any person authorised by him in writing, may at reasonable times of the day and on giving twenty four hours’ notice in writing to the occupier, enter the premises comprised in the lease for the purpose of viewing their condition and state of repair. [Ms Hunter explained to me that this was a reference to the letter of 2 February 2012 set out above]. 35 The claimant and her partner telephoned the local housing department falsely claiming that I was harassing them when I had provided more than 24 hours written notice to enter the premises, and claimed that I required their permission to enter the property to carry out necessary works the law requires. The council housing department encouraged them to refuse me entry in breach of the tenancy terms and suggested they could change the locks also in breach of the tenancy terms. The same council tried to assert that I had not carried out my landlord management duties despite their knowing attempt to frustrate me… 38 The claimant and her partner also falsely accused me of entering the premises when I was outside waiting for a client. Ms Benfield flew into a rage in the presence of my client again falsely accusing me of harassment. As a result of Ms Benfield’s outburst the client fled believing her outburst. This resulted in some financial difficulty for me. Ms Benfield then published her false allegation by email to other members of the household. When asked to provide evidence of her allegation Ms Benfield was not able to. She also refused to apologise for her false allegation in writing. Ms Benfield, the claimant and possibly others are therefore de facto defendants to a libel action in defamation, where they publish and repeat false allegations and untrue statements to third parties whether online, by email or in writing. 39 It is clear that the claimant and Ms Benfield have continued a campaign of harassment against me. They have no reason to harass me particularly since they voluntarily vacated the premises but continued to make false accusations with impunity. This claim is another example of their false allegations in which they contradict themselves. 40 The claimant and others influenced by them started and continued a hateful malevolent campaign against me by additionally publishing onto the internet a malicious and defamatory website designed to cause, which it did, distress and damage to my reputation and my business in May of this year. I can provide evidence of the malicious communications set up and distributed by or as a result of the claimant and her partner’s false allegations, letters, emails and a website set up by themselves together with other former tenants they have influenced. I can provide evidence of malicious and threatening emails, evidence of a crime reference number provided by the police, their investigation into harassment against me and evidence against the company hosting the malicious website, when they were tracked down and notified almost five months after publication, removed the website immediately as they would themselves be held liable as publishers of false, defamatory and malicious statements. … 42 This defence and counterclaim requests that the court make an order to include the payment of a sum of money in compensation for the claimant and her partner’s part in this ongoing campaign of harassment, defamation and malicious communications… 43 The house due to its condition and the extent and effort taken to make it attractive and comfortable to tenants, is not difficult to rent achieving in excess of £4000 per calendar month. However, due to the claimant’s malevolent publications and statements about me and the house, on the internet, in the current age of Twitter, Facebook, Bebo and other social media sites, by email, letter or phone calls, letting the premises has been rather more difficult than usual. This is a direct result of, and can be traced back to the claimant and her partner’s actions”.[15]Although the counterclaim includes allegations against Ms Benfield and others, the defendant to the counterclaim is solely Ms Mole. In two separate proceedings in the County Court brought by Mr Northam and by Mr Lewis Ms Hunter has made similar counterclaims against them in respect of the same internet postings. I have not been referred to any proceedings in which Ms Benfield is a defendant to such a counterclaim.[16]On 5 February 2013 Ms Mole wrote to the Clerkenwell and Shoreditch County Court referring to her claim against Ms Hunter. She stated that she was moving from her then current address in London N8 to a new address in London N2.[17]On 5 March 2013 Ms Mole wrote to the same County Court on paper headed with the London N2 address. This was 4 days after the order of the District Judge made the order dated 1st March which Ms Mole said she had received on 3 March.[18]By that letter Ms Mole said she wished to apply to the court under CPR r.3.3 (5)(a) to have the order of 1st March set aside. She also asked the court to exercise its powers under CPR r.3.4 and Practice Direction 3.2 to strike out the Counterclaim insofar as it alleged defamation. She set out as her grounds that it was insufficiently particularised and failed to comply with the Practice Direction 53.[19]She further complained, as a ground for striking out the allegations in the Counterclaim against Ms Benfield, that they do not make clear whether, or on what basis, she (Ms Mole) is also alleged to be responsible. Further she complained that no attempt had been made by Ms Hunter to particularise the alleged publication or to say to whom, other than to herself, they had been published. Ms Mole referred to the proceedings in the County Court brought by Mr Lewis against Ms Hunter, of which she states that she is aware, but she states that there is nothing in the evidence in that case which supports any allegation of defamation against herself.[20]As to paragraph 40 of the counterclaim Ms Mole wrote in that document: “I acknowledge that the evidence in the other case shows that someone set up a website complaining about Ms Hunter’s deficiencies as a landlady and warning off prospective tenants. But Ms Hunter produces no evidence at all to show that I have anything to do with that website. Indeed she cannot do so for the simple reason that I did not have anything whatsoever to do with it, took absolutely no part in its construction, writing or publication and did not even know about it until sometime after it had happened”.[21]Ms Mole submitted that it was unjust to transfer to the High Court a counterclaim for defamation for which the allegations were, as she submitted so obviously baseless, being no more than bare and general assertions. Alternatively, if the court was not prepared to strike out the counterclaim, she asked that Ms Hunter be ordered to give further information.[22]In her witness statement made on 20 November Ms Mole referred again to para 40 of the Counterclaim, and stated:
“[Ms Hunter] has not identified this website, when, or how it appeared nor what it said. But my point is a simple one: I emphatically deny that any website concerning [Ms Hunter] had anything to do with me, directly or by helping or encouraging anyone else. I do recall that a fellow tenant said they had found a website about [Ms Hunter], and showed it to me. It suggested that [Ms Hunter] is a bad landlady. I did not read the website very closely and am not familiar with the content. I do not know if that is the website [Ms Hunter] means. I remember remarking that the website was not a sensible idea, but I did not dwell on the matter. The next I heard of it was Morgan Lewis telling me that [Ms Hunter] had accused him of creating a defamatory website. Because I had nothing to do with any website, [Ms Hunter] can have no evidence at all that I did. I have asked her for particulars. She says in her Counterclaim that she ‘can provide evidence’ in this case but has never done so.”
[23]In her second witness statement of 20 November 2013, made in support of an unsuccessful application for summary judgment against Ms Hunter under CPR r.24, Ms Mole wrote referring to para 40 of the Counterclaim:
“10. When I was in [Ms Hunter]’s house there were 8 tenants in total. To a greater or lesser degree all of them were unhappy with [Ms Hunter] as landlady. The tenants who occupied the house before them also complained about [Ms Hunter]’s conduct and had to threaten her with legal action before a compromise was reached on the partial return of their deposit… 12. [Ms Hunter] (and the court) might reasonably infer that a website saying she was a bad landlady was produced or contributed to by one or more of her past tenants. What is not a reasonable inference is that because I was one of her tenants therefore I must have had something to do with it…”
[24]Ms Mole has produced to the court e-mails written to Ms Hunter by others who were tenants at the house at the same time as herself in which they set out complaints against Ms Hunter: in November 2011 by Mr Northam; in February and March 2012 by Mr Lewis; in February by Mr Celebi. On 9 and 10 November 2011 there was an exchange of e-mails between Ms Hunter and Mr Lewis (who copied his reply to Ms Mole and the other tenants). Ms Hunter wrote:
“… I have allowed for reasonable bills in the rent, but if the use of services is excessive, I may need to adjust the rent to accommodate this, make the rent exclusive of bills or take other cost saving measures. So it is best to work together to keep the rent and bills affordable…”
[25]Ms Mole also produced documents relating to proceedings in the County Court between other former tenants and Ms Hunter.[26]Ms Mole does not dispute that she and Ms Benfield had also made complaints to Ms Hunter. In an exchange of e-mails in February Ms Benfield wrote to Ms Hunter complaining that Ms Hunter was entering the premises without asking for consent. Ms Hunter said that this allegation was false and asked for proof. In her witness statement of 21 February 2014 Ms Hunter gave evidence that this allegation against her was false. She also agreed that she had had some disputes with all the tenants identified by Ms Mole, and she detailed her complaints against them.[27]On 10 April 2013 Ms Hunter sent a letter before action to Mr Northam in the case which Mr Northam had brought against her. Her complaint was of defamation arising out of an internet posting. It may be the same posting as the one she complains of in the present action.[28]In her witness statement Ms Mole states that from 12 March until 1 July 2013 she was in communication with the County Court seeking to challenge the order transferring the case to the High Court, but these documents are not before the court, save for one. On 3 May the High Court Appeals Office returned papers to her as not complying with the standard minimum requirements for submitting an appeal.[29]On 15 July 2013 Ms Mole sent a letter and e-mail to Ms Hunter. She said she had decided to make no further attempts to appeal against the District Judge’s order transferring the case to the High Court. She said the next stage would be to arrange a Case Management Conference before the Master, but she gave no date for such a Case Management Conference. She stated that in advance of it she enclosed a number of documents. These included a draft defence to the counterclaim and she drew particular attention to the fact that she completely denied that she had anything to do with the website referred to in the counterclaim. She asked for further information and she stated that she would ask the Master for summary disposal of the counterclaim under s.8(2) of the Defamation Act 1996, and for an order that the remaining claim be transferred back to the County Court.[30]In that letter Ms Mole went on to state that she rejected Ms Hunter’s claim that she had not left the property in good condition. She ended the letter by making an open offer of settlement.[31]On 16 July 2013 the Master ordered that there be a case management conference on 7 August 2013.[32]On 7 August 2013 the Master did hold a Case Management Conference and he made the following Order so far as material:
“Upon hearing the Defendant and no appearance by the Claimant: 1) By 4pm 23 August 2013 the claimant is to file and serve her Defence to the Counterclaim. 2) If the claimant fails to comply with paragraph 1 then without further Order but upon proof of default the Defendant has permission to enter Judgment for damages to be assessed with costs… [There then follow alternative orders for the service of a reply, disclosure, inspection and exchange of witness statements] 7) On Tuesday 17 December 2013 at a time to be confirmed, there be a Pre-trial Review before a Judge of the Jury List …” [There then follow alternative orders for the service of a reply, disclosure, inspection and exchange of witness statements] 7) On Tuesday 17 December 2013 at a time to be confirmed, there be a Pre-trial Review before a Judge of the Jury List …”
[33]The reason Ms Mole did not attend was that unfortunately the court had sent notice of the hearing to her at her former address in London N8. It was not until 3 September 2013 that she received a copy of the Order of the Master and by that time the time for service of the defence to the counterclaim (23 August had passed).[34]On 23 August 2013 after close of business Ms Hunter requested that judgment be entered in default of defence.[35]On 5 September 2013 Ms Mole wrote a letter to the court in which she stated that she would apply to restore the Case Management Conference so that she could be heard. She enclosed a draft Defence to the counterclaim. She added:
“At the end I asked the court to dismiss the counterclaim. I take Ms Hunter’s only complaint of any conceivable substance to be the one relating to the website. It will be seen that my defence is that I had absolutely nothing whatsoever to do with that…”
[36]However, on 12 September 2013 the Master entered judgment in default, as set out at the start of this Judgment.[37]In her witness statement dated 20 November 2013 Ms Mole stated that: “On 30 September the High Court wrote acknowledging receipt of my application and on October 1 I received the order of [12 September]. The next day October 2 my father went to the High Court and appeared before Master Cook, putting my application to set aside the orders of Master Leslie and Master McLeod before him. The application was accompanied by a defence to counterclaim and request for particulars. …”.[38]The Master endorsed on the Application Notice: “Permission to Issue. Refer to Master Leslie to consider on the papers in the first instance… stay for an enforcement of judgment until this application has been heard”.[39]It is common ground that Ms Hunter did not receive notice of that application made by Ms Mole’s father on her behalf and Ms Hunter did not attend.[40]On 14 November 2013 the dispute over the deposit was resolved on terms that £622.50 was repaid to Ms Mole and Ms Benfield and the balance of £227.50 paid to Mr Hunter. So the Counterclaim for defamation is all that remains in dispute between the parties.[41]After the order of 15 November 2013 set out above, Ms Mole made her two witness statements dated 20 November 2013. On 22 November 2013 she issued an application notice for an order under the CPR part 24 for summary judgment against Ms Hunter and the dismissal of her Counterclaim. She requested that application be heard at the same hearing immediately after her application to set aside the judgment. However, for reasons which are unclear, the application under CPR r.24 was listed separately before Nicola Davies J and dismissed by her on 17 December 2013. This was the date set for the Pre-trial Review in the order the Master made on 7 August 2013. Neither party had attended.[42]On 18 December 2013 Ms Hunter made three witness statements, one said to be in support of her application for assessment of damages and two in response to the evidence of Ms Mole.[43]On 13 January 2014 Ms Mole made a further witness statement. On 21 February 2014 Ms Hunter made a further witness statement in reply.

THE APPLICATION TO SET ASIDE THE JUDGMENT IN DEFAULT

[44]Provision for entry of judgment in default is made in the CPR rr.12.3 and 12.4. They apply to a counterclaimant as they do to a claimant. So far as material they provide as follows:
“12.3 (2) Judgment in default of defence may be obtained only … (b) in a counter claim made under rule 20.4 where a defence has not been filed, and … the relevant time limit for doing so has expired… (3) The Claimant may not obtain a default judgment if (a) the Defendant has applied (1) to have a Claimant’s statement of case struck out under rule 3.4.

(d) any combination of these remedies…”

[45]Ms Hunter submits that Ms Mole had been in default in failing to serve a defence within the 14 days (prescribed by CPR r.15.4(1)(a)) of the service of the Counterclaim on 27 November 2012. So r.15.3 gave her a right to enter judgment.[46]In a witness statement dated 18 December 2013 Ms Hunter states that she applied for judgment in default of defence on the following dates: 18 January, 26 February, 12 March, 28 July and 23 August 2013. However the only request for judgment under CPR r.15 that I have seen is the one she issued on 23 August.[47]In my judgment Ms Mole was not in default for failing to serve a defence to a counterclaim for defamation when the County Court had no jurisdiction to entertain such a counterclaim. She could not be in default until the counterclaim had been brought in the right court, namely the High Court. The order for transfer was not until 1 March 2013. It is regrettable that the order for transfer was not made for three months, but I have no information as to why that delay occurred, or as to who, if anyone, was responsible for the delay.[48]It follows that if Ms Hunter did make a request for judgment in default before 1 March 2013 it could not have succeeded. The County Court had no jurisdiction to grant a judgment on a counterclaim in defamation, and there was no claim pending in the High Court. Ms Mole has submitted that the County Court did have jurisdiction, relying on Halsbury’s Laws of England Vol 32 (2012) 5th edition. The editors state that “A libel or slander claim may arise by way of counterclaim within proceedings otherwise within the county court’s jurisdiction. These cases would appear to fall within the general ancillary jurisdiction of the Count Court”, and the footnotes refer to Vol 11 (2009) 5th edn para 58 and the County Courts Act 1984 s.38. I have not heard adversarial argument on this point. And I can find no similar suggestion in Gatley on Libel and Slander 12th edn. The suggestion appears to me to give an impossible interpretation to s.38, and to be contrary to the clear words of s.15(2). An action for libel or slander may be transferred to the County Court pursuant to s.40, but s.38 relates only to remedies. It appears to me to give no “ancillary jurisdiction”. The jurisdictional provision in the Act reads:
“s.15(2) A county court shall not, except as in this Act provided, have jurisdiction to hear and determine - … (c) any action for libel or slander.”
[49]As soon as the order for transfer to the High Court had been made Ms Mole wrote her letter of 5 March 2013. But no application notice was issued. If an application notice had been issued, then, by CPR 12.3(3)(a), the time for service of a defence would not have run and she would not have been in default. In the draft judgment of this judgment circulated to the parties I stated that Ms Mole had offered no explanation for not issuing an application notice. Having received the draft she submitted to the court a receipt from the Post Office for a postal order payable to HM Courts and Tribunal Service in the sum of £80 (the amount of the fee) and a Certificate of posting of a letter to the Court, namely her letter dated 5 March. She has received no receipt and no refund of the fee. On 12 March HM Courts and Tribunal Service replied saying that her application had been referred to the Judge and that he had directed that the application be directed to the High Court. So it is not clear why no application notice was issued, but the error appears most likely to lie with the court.[50]If Ms Hunter did make a request for judgment in default on 12 March in the High Court, then there might have been other issues that would have had to be resolved. The court might have had to consider whether the service of the Counterclaim on 17 November 2012 was valid service (notwithstanding that it was in a court which had no jurisdiction to entertain it). In the event it appears that no order was made by the court in respect of any request for judgment in default made on 12 March, and I have not had to determine what the position would have been.[51]After that, on 7 August, any uncertainty as to what the position was following the transfer was resolved. The effect of the order of 7 August 2013 was that service of the Counterclaim was being treated as valid as from that date, and the time for service of the Defence was set at 23 August 2013.[52]It follows in my judgment that Ms Mole was in default in failing to serve a Defence, but not before close of business on 23 August. In her application made on 2 October 2013 to set aside the judgment in default Ms Mole did not refer to CPR 12.3(3)(a), or claim that her application of 5 March had been issued, and I can find no copy of it on the Court file.If she had relied on that point, then it might have provided an additional argument, although in the event she did not need that additional argument.[53]Ms Hunter submits that Ms Mole’s application to set aside the judgment in default pursuant to CPR 39.3(5) is misconceived because that rule applies to trials, and there had been no trial. That may well be correct as a matter of law, but it does not assist Ms Hunter. As is explained in Forcelux Ltd v Binnie [2009] EWCA Civ 854 at para 52, CPR r.3.1(2)(m) (on which Ms Mole also founded her application) provides for the court to have case management powers including to:
“take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.”
[54]Ms Hunter submits that the factors set out in r.39.3(5) are not relevant under r.3.1(2)(m). CPR r.39.3(5) reads:
“(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant – (a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him; (b) had a good reason for not attending the trial; and (c) has a reasonable prospect of success at the trial.”
[55]She submits that the court must now proceed in accordance with CPR rr. 3.8 and 3.9, in the form in which they been since 1 April 2003, namely:
“3.8 (1) Where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction…. 3.9 (1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need – (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.”
[56]Ms Hunter relies on the new approach exemplified by cases such as Fred Perry v Brands Plaza Trading [2012] EWCA Civ 224. In giving the judgment of the court, Lewison LJ cited with approval paragraph 6.5 of the Jackson report, which said:
"... courts at all levels have become too tolerant of delays and non-compliance with orders. In so doing they have lost sight of the damage which the culture of delay and non-compliance is inflicting on the civil justice system. The balance therefore needs to be redressed."
[57]The amendments to the CPR include the addition of the reference to “proportionate cost” in the overriding objective, r.1.1, which now reads:
“These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.”
[58]In my judgment “all the circumstances of the case” are words that are wide enough to embrace the matters which are listed in r.39.3(5), but in applying r.3.1(2)(m) the court is not limited to those matters. I accept that the court must have regard to the guidance of the Court of Appeal, including the guidance in cases following Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537 endorsing a “tougher, more robust approach to rule-compliance and relief from sanctions”.[59]Ms Hunter submitted that Ms Mole did know the date fixed for the CMC, because, so she said, Ms Mole had written to her notifying her of the CMC. It is true that Ms Mole had written to Ms Hunter saying there would be a CMC. That is the letter dated 15 July 2013. But that letter does not give a date for the CMC.[60]I accept that the reason why Ms Mole did not serve a Defence, or alternatively, apply to the Master for some other order, before 23 August is that she was not informed that of the date the CMC was to take place, and she was not informed of the order made on that date until 3 September. The reason she did not know is that the Court erroneously wrote to her at an address at a time when she had notified the court of her correct address.[61]Ms Mole learnt of the order of 7 August on 3 September, and of the default judgment entered on 12 September 2013 on 1 October. On 2 October Ms Mole issued the application notice. She could have issued an application notice on 5 September, instead of writing the letter she did write on that date. But she did not know that an application notice was required until she learnt of the default judgment entered on 12 September. The order of 7 August 2013 at para (8) included permission to restore the CMC, and that letter of 5 September was sufficient as an application to restore. So her application notice of 2 October was as prompt as it could have been. And although she was in default, she was not at fault.[62]The fact that an application to set aside is made promptly is not enough. It would not be just to set aside a default judgment if the defendant to a counterclaim had no real prospect of defending the counterclaim.[63]In support of her application to set aside the judgment against her in default of defence Ms Mole stated as follows in the Application Notice:
“c) I believe I have a good prospect of success at trial. As my defence to counter claim makes clear I say (and my draft defence to counterclaim shows I have always said) the allegations of defamation against me have no substance. In summary, the first allegation is that my flatmate (not me) protested to the defendant that she had entered the house without proper notice while a prospective tenant was in earshot. That is trivial and cannot amount to defamation. The second allegation concerns a website that (it seems) said the defendant is a bad landlady. I do not deny that the defendant is a bad landlady but I do emphatically deny that the website had anything to do with me. Since it did not, the defendant can have no evidence at all that it did. I have asked more than once for particulars of her allegations, but received no answers.”
[64]Ms Mole’s draft Defence to Counterclaim includes the following:
“1…the claimant and Ms Benfield did protest to [Ms Hunter] that she needed their permission to enter without that notice. The Claimant and Ms Benfield did complain to the local council housing department. The complaint was true and justified. The Claimant and Ms Benfield had a proper lawful right to complain to the Council and the Council had an interest in hearing the complaint [I interpose to say this is a plea of a defence of qualified privilege]. … 4. Ms Benfield did challenge the Defendant about her conduct on an occasion when the Defendant was outside the house and, apparently, proposing to enter it. It’s not admitted that the Defendant was “waiting for a client” nor that any third party heard what was said. Ms Benfield did not address any remarks to anybody but the Defendant… Ms Benfield did tell the Claimant and other tenants of the house directly and by email what had happened. They had an interest in knowing and she gave them an honest account of what had happened… [This too is a plea of a defence of qualified privilege]. 5. It is admitted that there was a website which made a number of criticisms of the Defendant. It is admitted that in broad terms the website said the Defendant was a bad landlady. The Claimant does not know the particulars of the specific criticisms that were made against the Defendant. This website had nothing at all to do with the Claimant or Ms Benfield. The Claimant and Ms Benfield took no part whatsoever in setting up or contributing to any such website in any way. Neither did the Claimant or Ms Benfield encourage or influence anybody else to do so. 6. The allegations of harassment and defamation are without substance and unsupported without any evidence…”
[65]I accept that Ms Mole has a real prospect of success in defending the claim, and that she had notified Ms Hunter of this by sending to her a draft Defence, which she did by letter sent on 15 July 2013. She also sent a request for Further Information.[66]The draft Defence in respect of the alleged slanders to the Council and to her fellow tenants included defences of qualified privilege. As to the alleged slander to a publishee standing outside the house, Ms Mole’s draft defence pleads that there was no third party heard what was said (para 4). As to the website, she denied that she had any part in the publication (para 5). The defence of qualified privilege is substantially a matter of law, and Ms Mole had a strongly arguable case that a complaint made to the Council, and to her fellow tenants, about the conduct of her landlord was an occasion of qualified privilege. The other two defences are issues of fact on which I can form no view one way or the other on the papers.[67]In addition, and no less important, Ms Mole had, as long previously as 5 March 2013, stated that she would ask the court to strike out the Counterclaim. I consider the strength of these points below.[68]But even if Ms Mole had not raised the points she did raise on 5 March, I would in any event have considered that the overriding objective required that the default judgment be set aside in the circumstances of this case. That is because the Counterclaim is so defective that I would not be able to assess the damages justly.[69]The Counterclaim does not set out the words or meanings complained of, and it does not set out any facts upon which I could properly arrive at a finding that there had been any material publication of the website. Para 43 of the Counterclaim suggests that there might be such evidence from which the court could infer substantial publication, but no more.[70]These defects in the Counterclaim are not made good in the witness statements that Ms Hunter served on 18 December 2013 and 21 February 2014. So Ms Mole did not come to court forewarned of the case which Ms Hunter in fact advanced. It was not until the hearing before me that Ms Hunter produced the print outs from the web she complains of, and explained why she asked the court to infer that Ms Mole was responsible for the publication (the similarity between the complaints made by Ms Mole and the complaints on the website), and that there were probably some prospective tenants who read it (see para 89 below). I could not fairly have embarked on an assessment of damages in these circumstances. Ms Hunter had been directed to serve her evidence in advance, and what she served did not include evidence on these vital aspects of her case.[71]Accordingly I conclude that in all the circumstances of this case dealing with the case justly requires that I grant the application to set aside the judgment in default.[72]In these circumstances I cannot proceed to the assessment of damages, but must make directions for the further prosecution of the action. It is convenient at this stage to consider the merits of the points made by Ms Mole in her letter of 5 March 2013 and the accompanying grounds for her application to strike out the Counterclaim.

THE COUNTERCLAIM

[73]CPR r.16 provides that particulars of a [counter]claim must include a concise statement of the facts on which the [counter]claimant relies. The Practice Direction to Part 53 includes:
“2.2(1) In a claim for libel the publication the subject of the claim must be identified in the Claim Form (2) In a claim for slander the Claim Form must as far as possible contain the words complained of and identify the person to whom they were spoken and when. 2.3(1) The claimant must specify in the particulars of claim the defamatory meaning which he alleges that the words or matters complained of conveyed, both (a) as to their natural and ordinary meaning; .... 2.4 In a claim for slander the precise words used and the names of the persons to whom they were spoken and when must, so far as possible, be set out in the particulars of claim, if not already contained in the claim form…. 2.10(1) A claimant must give full details of the facts and matters on which he relies in support of his claim for damages.”
[74]In a defamation action the facts on which a claimant relies include (in addition to the matters set out in Practice Direction 53) the identity of the individuals to whom it is alleged that the words complained of have been published (this includes the readers who have accessed a website) and any facts on which it is alleged that the court should infer that there probably were such readers.[75]It is obvious that the counterclaim in defamation wholly fails to comply with the requirements of CPR r.16 and the Practice Direction 53.[76]The requirements of the CPR as to what is to be contained in a claim for defamation are not mere formalities. That is clear from the present case. If a judgment entered in default is to have any practical value, the court which comes to assess the damages must be in a position to know what allegations are to be treated as proved.[77]In a defamation case the damages are assessed on well know principles. The two most important elements are the seriousness of the allegation and the identity and/or number of the individuals to whom the allegation has been published. It is essential that the precise words complained of should be contained in the statement of case, and that there should be a clear allegation as to the identities and, as far as possible, the number of the individuals to whom the words complained of are alleged to have been published.[78]Further, it is now well established that, in order to count as defamatory, an allegation must pass a threshold of seriousness. And a court will not permit to proceed a counter claim in defamation where such proceedings will achieve nothing of value to the person making the claim (see Jameel v Dow Jones[2005] QB 946). Unless the words complained of are set out word for word, and unless the claimant’s case as to the number and identity of the readers or listeners is clearly set out, the court will not be in a position to assess whether the words complained of are sufficiently serious, or, if they are, whether the claimant’s reputation is materially damaged by the publication to individuals who are alleged to have read or heard those words.[79]It follows that I shall strike out the Counterclaim on the ground that it fails to include material allegations.[80]But it would not be just for me to strike it out finally if there is a real prospect of Ms Hunter being able to amend it to comply with the rules of pleading.[81]In response to questions from myself Ms Hunter expanded upon her case as pleaded in the counterclaim.

The website

[82]By far the most important complaint of Ms Hunter is her complaint based on the website. There is no dispute that there was a posting adverse to Ms Hunter, although it is not yet clear whether Ms Mole admits any of the postings that Ms Hunter produced in court.[83]I accept that Ms Hunter has a legitimate grievance against someone about postings on the web. If there had been no such posting on the web, I think it is unlikely that these proceedings would ever have reached the stage which they have. The allegations on the web include allegations of dishonesty. Although she does have other very much less serious complaints to make against Ms Hunter as a landlord, Ms Mole has not suggested in the papers before me that Ms Hunter has been dishonest.[84]In so far as the counterclaim is based on an internet posting the Counterclaim as it stands now does not give the words or images complained of, or date of the publication, and it does not identify any publishee, or give any facts from which the court could infer that there was a publishee. It does not specify the natural and ordinary meaning of the words complained of which, in accordance with para 2.3(1), the Claimant is required to specify.[85]I assume that Ms Hunter would be able to amend her Counterclaim to plead the words and images posted on the web and the approximate dates of any alleged publication, and she would obviously be able to attribute meanings to all the words she complains of. So those defects are curable by amendment.[86]If Ms Hunter could prove that a defendant was responsible for the publication of the words on the web, and if she could prove that any significant numbers of individuals had accessed and read the words she complains of, and if the defendant in question did not put forward, or did not prove, a defence, then I have no doubt that Ms Hunter would recover a very substantial sum in general damages. The general damages would be likely to be much larger than the £1,500 which she has actually claimed. Websites are all too often used as means of revenge by individuals who feel aggrieved whether rightly or wrongly. Those who use websites in that way, and who can establish no defence to the defamatory allegations they publish, can expect to be met with claims for defamation and substantial awards of damages.[87]However the question in the present case is whether Ms Hunter can plead a case against Ms Mole that she was responsible for any of the postings, and, if so, that there was a significant number of readers or publishees. In the case of defamatory allegations posted on the internet, the court does not presume that there were any readers or publishees Al-Amoudi v Brisard[2006] EWHC 1062 (QB); [2007] 1 WLR 113 para [37]. The claimant, or counterclaimant, has to prove publication. This does not mean that the claimant has to have evidence from someone who did read the posting (although it helps a claimant if she does have such a witness). It is sufficient if the claimant can prove facts from which the court can properly infer that there were probably such publishees.[88]So it appears at present that Ms Hunter faces two major issues in relation to her claim in relation to the words and images on the web: whether she can properly allege that Ms Mole was responsible, and whether she can prove publication to any significant publishees.[89]As already stated, Ms Hunter said that it was a relative in the USA who sent to her by post the printouts of the websites. She was unable to identify to me any publishee in England and Wales other than the people to whom she wrote asking for the words complained of to be taken down. She asked me to infer that there must have been publications to individuals who would otherwise have responded to advertisements which she placed to obtain new tenants for the house when Ms Mole and her fellow tenants had left. She stated that normally the house is easily lettable, but in the period following the publication on the internet for several months she received no calls from prospective tenants and rooms remained unoccupied.[90]In one of her witness statements dated 18 December 2013 at paragraph 10 she wrote as follows:
“It is true that actions of defamation can be made out against the following named individuals being Susannah Mole, Kay Benfield, Morgan Lewis, Lee Northam. They were tenants at [the] property and moved out together to [the address in London in N8] where they again lived together. The quote in the counterclaim at paragraph 40 refers to them: “the claimant and others influenced by them started and continued a hateful malevolent campaign against me by additionally publishing onto the internet a malicious defamatory website…”
The “others” are the named individuals above.[91]In her witness statement dated 21 February 2014 she states: “17. The tenancies that were secure during the material time amounted to £4875 per calendar month. The house is a well presented house providing above average amenities and comfort which normally attracts a great deal of interest and secures applicants and tenants extremely easily a period during the website publication over several months showed a marked drop in interest directly attributable to the website. [Ms Mole] is responsible for this. 18. The counterclaim is for a modest amount of £1580. However, the court may use its discretion to award a higher amount more in keeping with the actual losses over the period”.[92]Ms Mole complains of the lateness of this evidence and that there is no documentary material presented to the court to support these assertions. I have accepted that those complaints are well founded. But for the purpose which I am now considering the evidence (namely whether to give Ms Hunter an opportunity to amend her Counterclaim), that is not conclusive. I think it likely that Ms Hunter would be able to produce documentary evidence relevant to the question whether or not there was an unusual lack of tenants following any posting on the web of which she complains.[93]What is in question here is not a claim for special damages. It is whether there are facts from which the court could infer that there are likely to have been a significant number of persons who read any posting complained of. On the basis of what Ms Hunter told me, in my judgment she should be given the opportunity of amending her pleading to include (if she can) facts from which the court could infer that any web posting she complains of was read by publishees in England and Wales.[94]But this is subject to whether she should be given the opportunity to of amending to plead facts from which the court could infer that Ms Mole was alone, or jointly with others, responsible for the posting.[95]When I pressed Ms Hunter as to why she alleged that Ms Mole was responsible for the website publication she replied by referring me to the contents of the witness statement of Ms Mole made on 13 January 2014. She submitted, as I accept is arguable, that where Ms Mole sets out in that witness statement some of her complaints against Ms Hunter, the complaints she sets out are similar to some of the complaints set out in the 14 lines of text in the print out of the website which she had produced for the first time in court.[96]Further, Ms Hunter stated, and Ms Mole accepted, that at the time when Ms Mole was viewing the house with a view to becoming a tenant there had been some discussion between them about an event to take place in a street. Ms Hunter stated to me that Ms Mole was the only person who she told about that event. But Ms Mole stated that she did not in fact attend it, so it was not her that took the photograph of Ms Hunter that appears on the website.[97]At this stage I do not have to find whether this would be a sufficient basis for the court to find that Ms Mole authorised any publication on the web in circumstances where she denies that she did, and where it is Ms Hunter’s own case there were another number of tenants with similar complaints who could equally have published or caused the publication of the website and have done so without the authority or assistance of Ms Mole. The only question is whether I can conclude now that no such case can be pleaded.[98]Ms Hunter has not pleaded publication to her relatives in the USA, although she submitted to me that that would be enough for her Counterclaim to succeed. In my judgment a claim based solely on that publication could not be allowed to proceed. Such a publication by itself could have done no real harm to her reputation. If publication to other significant publishees can be pleaded, it may be that the publication to her relatives would be relevant to damages, but I express no view on that at this stage.[99]I conclude that I must give Ms Hunter an opportunity to amend her Counterclaim, if she can, so as to plead each posting she complains of and the facts from which the court could infer that Ms Mole had responsibility for each such posting. The court will have to consider the draft pleading as amended, unless Ms Mole consents to the amendment. The court will only grant permission to amend if Ms Hunter has a real prospect of succeeding on the amended pleading.[100]If Ms Hunter cannot or does not obtain permission to amend her Counterclaim, then it will be struck out. If she is otherwise entitled to permission to amend, the court is unlikely to refuse her permission on the ground that Ms Mole denies all responsibility for any publication. The question whether her denial of responsibility is accepted must be an issue to be resolved only at a trial, and not on the papers.

The other alleged publications

[101]Para 34 of the Counterclaim does not plead any publication to a third party, so plainly cannot be allowed to proceed as a claim in defamation.[102]On the information before me I do not know whether Ms Hunter is able to plead the words of the slanders to the council officer alleged para 35, and to the third person who was alleged to hear the words referred to in para 38. She will be given an opportunity to consider whether she can amend to plead the words she complains of. But the opportunity is likely to be of no value to her unless she can also plead that Ms Mole spoke, or authorised someone else to speak, the words complained of knowing them to be false or reckless as to whether they were true or false (that is what is referred to in law as malice). The reason for this is that the publication was very likely to have been on an occasion of qualified privilege.[103]I think it unlikely that Ms Hunter will be able to amend to put forward a claim in respect of either of these two publications which has a real prospect of success, but since I am giving her an opportunity to amend her complaint about the website, I will not preclude her from attempting to do so in respect of these two alleged publications, if she so chooses.[104]The allegation in paragraph 38 of the counterclaim could not be allowed to proceed as a self contained claim in defamation in so far as it is an allegation of a publication to the other tenants in the house. This is because on Ms Hunter’s own case, all of the tenants were already expressing complaints against her (whether they were justified or not). She could achieve nothing of value to her from a claim based only on the publication amongst the tenants themselves so long as she is alleging that they were all acting together against her.[105]Nothing I have said is to be taken as encouragement to Ms Hunter to seek to amend her pleading, still less as expressing the view that she is likely to be given permission to amend. All that I am doing is giving her the opportunity to put forward a statement of case which has a real prospect of success, if she can. In deciding what she should do, Ms Hunter may take into account that it is recorded in this judgment that Ms Mole is not alleging that there is any truth in the allegations that Ms Hunter is or has been a crook or a liar or that she has been party to a scam.[106]I have not overlooked that the Counterclaim could be read as including a claim in harassment. If that is intended, then Ms Hunter will need to consider whether she can plead a case in accordance with the Protection from Harassment Act 1997 and whether that would add anything to her claims in defamation. As at present advised, I think it unlikely that she could plead any such case.

THE PROCEDURE ADOPTED

[107]It is not uncommon for there to be defamation actions in which both sides are litigants in person, as in this case. And in such cases the litigants normally have great difficulty in complying with the requirements of the CPR.[108]Ms Hunter and Ms Mole each presented their cases to me with care and restraint. They have been more successful than many litigants in person in what they have each been attempting to achieve. In many cases the procedural history is much worse than it is in the present case.[109]In the present case it appears that each party has received some advice from someone with legal knowledge, and that too is not uncommon. But that is no substitute for representation by a lawyer competent to give advice in the field of defamation.[110]One of the reasons why claimants bring actions in person is that it is easy for disgruntled individuals to post defamatory allegations on the internet. These publications can be very damaging if the person making the allegation succeeds in attracting any viewers. In the past it was more difficult for disgruntled individuals to be able to inflict serious damage to the reputations of those with whom they were in dispute.[111]Because both sides were litigants in person, I conducted the hearing by asking first Ms Hunter and then Ms Mole about each of the matters complained of in the counter claim. I then gave each of them an opportunity of asking questions of the other. Ms Mole chose to ask no questions. I then went through the chronology of events as I understood them to be, inviting each of them to correct or complement the understanding I had formed on my own reading of the papers and to make their submissions. Before doing this I invited each party for their consent to the procedure I proposed to adopt, although in my view CPR r.3.1(2)(m) is sufficiently wide to make such consent unnecessary. I also indicated that I also proposed to hear both applications before me before making a ruling on either of them.[112]This procedure may be an example of what Lord Thomas CJ referred to in a lecture to Justice the week after this hearing (on 3 March 2014) when he cited The Judicial Working Group on Litigants in Person: Report at paras 2.10, 5.11 and page 33. This Report recommended that there be consideration of:
“Introduction of a specific power into CPR Rule 3.1 that would allow the court to direct that, where at least one party is a litigant in person, the proceedings should be conducted by way of a more inquisitorial form of process in civil proceedings where both or at least one party is represented”
[113]If so, then such form of process is already used by judges and Masters in this field of the law, pursuant to the general powers under CPR r.3.1(2)(m). But the introduction of a specific power into CPR r.3.1 would not suffice by itself to resolve the problems.[114]Litigation between two litigants in person places great demands upon the court. Some of the reasons are referred to in the Report at para 3.14ff. As is commonly the case (Report para 3.17), the papers in this case were presented to me in four separate bundles in no chronological order. In addition I had to search the court file for documents which the parties had not themselves produced or included in the bundles prepared for the hearing, but which were obviously relevant. This is work which is normally done by lawyers representing the parties, and it is usually done by junior lawyers.[115]But if the work is not done by or for the parties, it still has to be done by someone in order for the case is to be tried justly. Masters and judges have no legally qualified assistants, and so in practice they must do the work themselves, if they can.[116]However, it is a waste of resources for this elementary work to be done by judges and Masters. One of the reasons why in England and Wales there are relatively few judges compared with the numbers in civil law jurisdictions is that the courts are administered on the assumption that necessary preparatory work will be done by or on behalf of the litigants and at their expense. If it is not done at the expense of the litigants, then it must be done, if at all, at the expense of the state.[117]There will be significant budgetary and resource implications if the courts are to provide, free of charge to the litigant, and through the costly time of Masters or Judges, services to those who cannot, or who choose not to, instruct solicitors and barristers that they would receive at a small fraction of the cost from lawyers of the junior level appropriate for such work. The Report refers to the issue of resources (paras 2.4, 2.12 and 4.11), but records at para 3.49 that this is a matter for Her Majesty’s Courts and Tribunal Service and the Ministry of Justice.[118]To understand and decide this case I have not only had to devote to this case a disproportionate amount of the resources of the court. I have also had to deploy experience gained from practice at the Bar in this field of the law. Defamation is a specialist area of the law with which very few judges have any familiarity. The Masters acquire some experience in the course of their work, and, when they are able to do so, they give to litigants such prompting as they are able to give consistently with their duty to maintain judicial impartiality. But in practice any judge who was not a specialist in the field could not realistically be expected to attempt to do justice in a dispute such as the present one. Such a judge would require significantly more time to do the preparatory work, and would be likely to require more knowledge of the law and practice in this field than could be acquired in the time available.[119]I record that this case is one three consecutive cases which have been conducted before me by litigants in person. One of these, Abbas v Shah, was also a libel action with a lamentable history of delay, and the other, Mensah v Darroch, was in substance a claim for breach of confidence. Only in the last of these has the defendant submitted that the claims should be struck out as totally without merit.

EVENTS FOLLOWING THE CIRCULATION OF THIS JUDGMENT IN DRAFT

[120]On 10 March this judgment was circulated in draft for the parties to submit editorial corrections. Ms Mole responded, and I made alterations to the draft, as recounted in para 49 above.[121]For reasons which are not her fault, Ms Hunter did not receive the draft until 19th March. So I did not hand down the judgment publicly on 18 March, as I had intended.[122]In an email dated 20 March (which does not indicate that a copy was sent to Ms Mole) Ms Hunter asked me to make a number of orders. In spite of the fact that I had drawn attention in the draft judgment to the need for parties to issue application notices, she has neglected to do that, and she has made no witness statement in support of her intended applications. For that reason alone I shall not make the orders she asks for (CPR r.23.4, r.23.6).[123]The orders that Ms Hunter asks the court to make are(1) an order against a website operator called Sitemaker that they make available to her details of the publishers and publishees of a website which she identifies and(2) an order against “Haringey Council Local Authority” that they make available to her “documentation relating to her, the Property, Haringey Local Authority and third parties waiving the Data Protection Act”.[124]Ms Hunter also states that she proposes to apply for permission to amend her Counterclaim but “can see no advantage in issuing it first to the other party for her approval as I expect she will not accept it and this will only result in further delays…” However, if she does not comply with the order I make, she will be at risk of having her application refused and her counterclaim struck out under CPR r.3.4(2)(c).[125]Ms Hunter also asks for an extension of the time I contemplated in the draft judgment for submitting any application for permission to amend (31 March 2014) “to explore option with engaging legal assistance if financially viable”. Both these courses of action would carry significant risks as to costs.[126]I would in any event refuse an extension of time on this ground. Engaging legal assistance in the pursuit of a defamation claim is always financially viable. As the history of this case shows (including the history since the circulation of the draft judgment) litigants in person generally, and the two parties to this action in particular, cannot be expected to understand the law of defamation, or be able to comply with the rules of court, without qualified legal assistance. The normal consequences of this have not yet materialised in the present action because I have made no order as to costs.[127]The normal consequences for a litigant pursuing a defamation action in person are that sooner or later an application is made which does involve a party who is legally represented. And if the application is decided against the litigant in person the court orders the litigant in person to pay in costs thousand, sometimes tens of thousands, of pounds in costs. Such a sum is many times the amount that the litigant in person would have had to pay to obtain the legal advice which would have prevented such an order being made.[128]I will however grant an extension of time to reflect the unforeseen delay in the draft judgment reaching Ms Hunter.

CONCLUSION

[129]My conclusions are as follows: i) Ms Mole’s application to set aside the judgment entered against her on 12 September 2013 will be granted. The Counterclaim will be struck out unless permission is given to amend it. ii) Any application for permission to amend must be supported by a draft Amended Counterclaim to be sent by Ms Hunter to Ms Mole no later than 30th April. If Ms Mole does not agree in writing that permission to amend be given, Ms Hunter must (if she wishes to pursue the matter) issue any application notice seeking permission to amend by no later than 14th May 2014. iii) Although a litigant who applies to set aside a judgment in default must normally pay the costs, since it was not Ms Mole’s fault that she was not informed of the CMC on 7 August 2013, I am minded to order that there be no order for costs on this hearing.