Pirtek (UK) Ltd v Jackson [2018] EWHC 2030 (QB)

[2018] EWHC 2030 (QB)

Case No HQ17M01299

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 31 July 2018

Before

THE HONOURABLE MR JUSTICE NICKLIN

Between

Pirtek (UK) LimitedClaimant

Robert JacksonDefendant

Caroline Addy (instructed by Irwin Mitchell LLP) for Claimant

The Defendant appeared in person for in person

Hearing Hearing date: 24 July 2018

Judgment Approved

The Honourable Mr Justice Nicklin :

[1]These are libel proceedings brought by the Claimant against the Defendant. They arise out of allegedly defamatory statements published on a website, www.pirtek-franchise.com (“the Website”), since April 2016. Complaint is also made about other social media publications. The major issue between the parties is that the Claimant alleges that the Defendant is the person behind the Website. The Defendant says that he is not.

[2]There is a history to the relationship between the parties and there is no doubt that it has ended in acrimony and that the Defendant feels very strongly about the way that he has been treated by the Claimant. I do not doubt that this strength of feeling is genuine.

[3]The Claimant is a UK company that provides hydraulic hose replacement services to various industries through a network of franchises. There are some 85 franchisee centres in across the UK. From 2001 to 2011, the Defendant was the owner and operator of a franchise, Starflow Hydraulics Limited, in Milton Keynes. A contractual dispute arose between the parties in 2011 leading to the Claimant terminating the franchise agreement on 31 December 2011. The dispute was acrimonious, and it led to litigation between the parties. Ultimately, in January 2014, the Defendant was made bankrupt. In consequence, the Defendant’s home was sold to pay his creditors. A possession order was obtained in or around April 2016. It is after this that the Claimant contends that the Defendant began his campaign against it on the Website (and through other channels).

History of the Claim

[4]The Claim Form was originally issued on 13 April 2017, but subsequently amended. On 13 April 2017, Alex Newman, a partner in the Claimant’s solicitors’ firm, sent an email to the Defendant at a btinternet email address which he had previously used in the earlier litigation. It was very short, and requested the Defendant provide his postal address. He sent a similar message using a ‘contact Bob’ section of the Website.

[5]In the remainder of this judgment, when I refer to an email being sent to the Defendant it was sent to the btinternet address which the Defendant has accepted in evidence is his only email address. There is no evidence that any of the emails in the case ‘bounced’ or were otherwise undeliverable to this email address.

[6]On 15 April 2017, a response was posted on the Website headed:

“Open Letter to Mr Alex Newman of Irwin Mitchell Solicitors”

. The letter is long, but the following gives the gist of it:

“This acknowledges your request on the 13th of April 2017 at 5.53pm via my website requesting my address and confirming that you are again acting for Pirtek UK. Based on my experience over the last decade it may come as no surprise that I am reluctant to cooperate with your firm or Pirtek UK. This is due to being severely bullied by yourselves and Pirtek UK and myself and my wife living in fear… The Judge in the high court stated: ‘Mr Jackson believes that the directors of Pirtek UK have a personal vendetta against him and I am inclined to agree’. As you may recall a £30k dispute was escalated to £600k with fees… The repossession of my house was forced in order to pay fees… So Mr Newman in our last encounter I lost everything and you now wish to communicate with my private address to you on the instruction of Pirtek UK?...”

The response concluded:

“Yours Bob, Bankrupt and Beligerant (sic)”

. The statement attributed to a Judge of the High Court comes from a hearing before HHJ Gosnell at Leeds County Court on 19 December 2012. The Defendant has relied upon a transcript of the hearing on this application. The actual words of the Judge were:

“Mr Bob Jackson feels there is a personal element to these proceedings and I feel he may have a point”

The Letter Before Action

[7]On 19 April 2017, Irwin Mitchell sent a letter before action by email to the Defendant (“the LBA”). The LBA indicated the basis for the Claimant’s claim for defamation and identified the publications complained of on the Website. The majority related to items on the Website which the Claimant contended had been posted by the Defendant. The LBA was only sent by email and not by post or via the Website.

Responses to the LBA

[8]Shortly after the LBA was sent, a further long posting appeared on the Website. Again, I will quote selected parts. Headed “Response to Mr Newman that I defamed Pirtek UK…”, it stated:

“I am writing in response to your pre-action letter dated 19th April 2017 alleging that I defamed your client Pirtek UK…”

The author then explained why he contended material on the website was true and asked various questions. A postscript was addressed directly to Mr Newman: “Based on your client’s request I pay for (sic) damages I wish to take into account their previous attitude to damages. You will understand this governs the nature of my replies. I would therefore be grateful if you would inform me to (sic) what your client’s attitude to damages would be, were they to learn that the nature of my reply is as follows: FUCK OFF!! I infer that the author must have been a reader of Private Eye or at least familiar with a famous letter the magazine sent in 1971 in response to a libel complaint, the language of which was very similar to that used in the postscript.

[9]On 22 May 2017, the Defendant sent a letter, by recorded delivery, to Mr Newman at his home address. When I asked the Defendant why he had done that, rather than send the correspondence to Irwin Mitchell’s business address, he told me that he and his wife had been bothered at home with correspondence, so he felt it was appropriate that Mr Newman should be too. The letter was headed “Data Protection Act 1998 – Subject Access Request”. It requested that Mr Newman supply him “with copies of all the data which you hold on me in relation to any matter and in any form and for any period of time.” On the letter, the Defendant gave an address “c/o 61 Purwell Lane, Hitchin, Herts, SG6 0NG”. This, he told me, was his daughter’s address.

[10]On a date that is not clear, but is before 12 July 2017, a further posting appeared on the Website, under the heading, “Solicitor Alex Newman Claims his client Pirtek UK do not work on Helicopters and that I defamed them for claiming that they do”:

“Mr Newman, I am further writing in response to your particulars of claim alleging I have defamed your client Pirtek by publishing that your client has worked on Helicopter fuel systems…”

The balance of the posting is not material, but I note that included on the page on the Website was a ‘screen-shot’ of part of the LBA. The reference to “particulars of claim” is to the LBA. At the stage this was posted, the Particulars of Claim had not been served by the Claimant.

[11]There were two further postings on the Website at around this time. Headed, “My response to Alex Newman @ Irwin Mitchell solicitors regarding the Pirtek UK Defamation Claim” and “The full Defamation Claim from Alex Newman of Irwin Mitchell on behalf of Pirtek UK and my initial response” both contained further ‘screen-shots’ from the LBA. The second posting included what appears to be an embedded copy of the whole LBA, which, together with enclosures, ran to some 50 pages. The image of the first page of the LBA appears to have been edited to remove the Defendant’s email address. Underneath that appeared the following:

“To Mr Alex Newman of Irwin Mitchell and the Directors of Pirtek UK I confirm receipt of your pre-action claims regarding your claim for defamation. As I stated in my open letter on the 15th April all responses will be via this website which you are claiming is defamatory. I choose this medium because in my honest opinion it is in the public interest to be aware of the allegations and any right minded person will be able to make their own mind up as to what is true… You are unable to claim for defamation or libel if something is true or substantially true and I will be providing my justification for this in detail which will be a lengthy process. I am fully prepared to defend my claims in a civil court for a judge based on the evidence to legally decide what is true… I admit to being the owner of the website www.pirtek-franchise.com and stand by what I have published. If any genuine mistakes come to light I will promptly correct them and make a suitable apology for the mistake. I deny controlling or owning any social media accounts or using an anonymous email…”

Alternative Service Order

[12]The Claimant remained without the Defendant’s residential address so, on 31 July 2017, it obtained an order from Master McCloud granting permission to serve the proceedings using the following methods:(1) by post to 61 Purwell Lane, Hitchin, SG6 0NG;

(2) by email to the btinternet email address; or

(3) via the ‘contact Bob’ section of the Website. Service was deemed to have been effected: (1) on the second day after posting; (2) on the same day that the relevant document was sent by email or via the ‘contact Bob’ section of the Website.

Service of the Claim Form

[13]Using two of those three methods, the Amended Claim Form, Particulars of Claim, Response Pack and Order of 31 July 2017 were served on 9 August 2017. In the Particulars of Claim, complaint was made in respect of a large number of publications on the Website and via Twitter and Facebook which were alleged to defame the Claimant. The Defendant was alleged to be responsible for all the publications. I should note that the Particulars of Claim were set out in a 19-page document. On page 18, under a heading “Particulars of Special Damage”, the following paragraph was set out:

“The Claimant has had to employ a PR consultant, Morgan Rossiter, to deal with various issues caused by the Defendant’s publication, including liaising with the BBC in relation to its ‘special report’ on the Defendant’s allegations [referred to earlier in the document] at a cost to the Claimant of £15,000”

[14]Emma Yates, another solicitor at Irwin Mitchell, has stated in her evidence that shortly after serving the documents on the Defendant she checked the Website on or around 15 August 2017. She found a new page headed:

“Boycott Pirtek UK – They Stole My House And Bankrupted Me – The initial dispute was only £35k, ironically after the BBC special report Pirtek UK spent £15k with PR consultants Morgan Rossiter, I dont (sic) think they achieved much!!”

. Below some further text appeared what looks like a ‘screen-shot’ of a BBC news broadcast. A caption has been superimposed: “Pirtek Bankrupt, Evict and Destroy Franchisees www.pirtek-franchise.com”.

[15]There was no response from the Defendant to the service of the Amended Claim Form and Particulars of Claim. However, on 23 August 2017, a letter was sent to Mr Newman (this time at his office address). A typed signature, “Bob Jackson”, appeared at the foot of the letter, and the address given was “61 Purwell Lane, Hitchin, Herts. SG4 0NG” (apart from the different postcode and not now “c/o”, the same address that was given in the letter of 22 May 2018 – [9] above)). The letter said:

“Please accept this email as advice, that I have instructed solicitors to investigate legal action against Pirtek UK Ltd. in relation to the statutory demand, unlawfully issued against me, and the unlawful misrepresentations made to the Courts, at all subsequent hearings. They are in the process of receiving instructions. However, the partner in charge of the matter is out of the office until the week commencing 11th September 2017. It will be during this week that I understand that they will contact you. In the meantime, I advise you that the web site which you write to me separately about, is not controlled, or run by me, and I do not know the identity of the owners of the domain, save that they are a group of individuals who believe they have been badly mistreated by Pirtek UK ltd. All I have is an email address, I have asked by email that the web site be temporarily taken down, but cannot guarantee the same, given my lack of authority.”

I will return to consider this letter below. It was the last communication that the Claimant’s solicitors received from the Defendant until May this year.

Application for Judgment in Default

[16]Still having received no response to the service of the Amended Claim Form and the Particulars of Claim, on 14 September 2017, the Claimant issued an Application Notice seeking(1) judgment in default of Acknowledgement of Service; and

(2) relief under s.8 Defamation Act 1996 (“the Judgment in Default Application”). The application was supported by a witness statement from Mr Newman which set out the history of the claim and the service of the Amended Claim Form and Particulars of Claim. The Judgment in Default Application was emailed to the Defendant on 18 September 2017.

[17]On 29 September 2017, a further email was sent to the Defendant requesting him to provide his availability for a hearing of the Judgment in Default Application in the months of October and November. On 19 October 2017, the Defendant was advised by email that the hearing of the Default Judgment Application had been fixed for 7 November 2017. A further updating statement was provided by Mr Newman to set out what had happened since the Judgment in Default Application had been issued and served and confirmed that there had been no communication or response from the Defendant.

Hearing on 7 November 2017

[18]The Summary Judgment Application duly came before Warby J on 7 November 2017. The Defendant did not attend, was not represented, and had made no contact with the Claimant’s solicitors or the Court. Ms Addy represented the Claimant. The Judge reserved judgment.

Judgment on 9 November 2017

[19]Warby J handed down his judgment on the Default Judgment Application on 9 November 2017 (

[2017] EWHC 2834 (QB)

). In a careful judgment, the Judge set out the background of the parties ([2]-[7]) and the history of the litigation ([8]-[15]) before turning to his decision on the application. The Judge explained why he was prepared to proceed in the absence of the Defendant ([19]-[24]). On the basis of the evidence that had been submitted (largely the matters set out above), he concluded that the Defendant had “decided not to attend, despite having full knowledge of what is going on” ([23]).

[20]With conspicuous fairness,

the Judge said this [24]:

“I add that despite these conclusions I have decided to hand down this judgment in written form, and to direct the claimant to serve a copy on Mr Jackson along with the resulting order. In that way, he will not be hampered or delayed in getting to know my reasons. Anyone has the right to obtain a transcript. But Mr Jackson is a litigant in person who lacks or may lack the knowledge or the financial resources to obtain a transcript. Proceeding in the way I have described will give him an opportunity to consider and, if he thinks it appropriate, to make a timely application to the Court for Pirtek's applications to be re-listed pursuant to CPR 23.11(2), or to set aside the default judgment which I propose to enter. I do not suggest that it would be appropriate to make either application. My point is that in this way Mr Jackson will be able to give informed consideration to those options, in full knowledge of the basis on which judgment has been entered against him, and will have no reason to delay any application he may choose to make. All this buttresses my view that it is just and convenient to go ahead now, despite the absence of Mr Jackson.”

[21]He then went on to grant the Claimant judgment in default [62]. The Judge considered the provisions of s.10 Defamation Act 2013 ([27]-[30]), but concluded that, as the Defendant had not responded to the claim, the matter fell to be decided upon the factual averments in the Particulars of Claim. As such, the pleaded case was that the Defendant was the person who was responsible for posting the material on the Website upon which the Claimant based its claim for libel. The Judge considered the 23 August 2017 letter from the Defendant ([15] above) in which he disputed responsibility for some of the publications complained of ([32]) but decided that this was not sufficient (or satisfactory) evidence ([33]):

“… a defendant who is in default of acknowledgement of service, has failed to file a Defence, and has failed to adduce any evidence on an application for judgment of which he is fully aware, is not entitled to have the Court treat assertions which he has chosen to make in correspondence and not otherwise as worthy of any weight.”

[22]In terms of relief, the Claimant was granted(1) £10,000 in damages;

(2) £53,560 in summarily assessed costs; and

(3) an injunction in the following terms:

“… the Defendant be prohibited from further publishing or causing the publication of (i) any of the statements complained of in the Particulars of Claim or (ii) any statements bearing the meanings complained of in the Particulars of Claim or (iii) nay statements of and concerning the Claimants bearing meanings the same as or similar to those complained of in the Particulars of Claim. The Defendant must not do any of these things, himself, or by an employee or agent, or by any other means.”

[23]The Judge declined to make a declaration of falsity under s.9(1)(a) Defamation Act 1996 ([77]-[79]) but he provided a press summary of the Court’s decision which could be publicised. In his Order, Warby J made a specific direction requiring the Claimant to serve a copy of the Order and the Judgment on the Defendant by post and email. If personal service of the Order was not possible, service would be deemed to have been effected on the date the Order was sent by email.

Service of the Injunction Order

[24]The Order and Judgment were sent to the Defendant on 10 November 2017 by email and post to 61 Purwell Lane. The accompanying letter drew attention to the Penal Notice on the Order and the terms of the injunction that had been granted. It explained, by reference to the Particulars of Claim (a further copy of which was enclosed), which statements were prohibited.

[25]In a witness statement dated 17 November 2017, Dennis Evelyn, a process server, set out his efforts personally to serve the Defendant at 61 Purwell Lane. He said that he attended the premises on 15 November 2017 at 5.30pm and had handed the documents to someone who identified herself as Mary Jackson, the Defendant’s daughter. She said that the Defendant did not live at the address. Mr Evelyn left the documents with Ms Jackson and advised that she needed to contact the Defendant and ask him to collect the documents from her. Ms Jackson stated that she had not seen the Defendant “for some time”.

[26]On 16 November 2017, the next day, Irwin Mitchell’s London Office received a call from Ms Jackson. She explained that she had received letters sent to her home address that related to her father. She stated that she had received a letter from the High Court the previous night, but she had not read it and had simply thrown it away as it was nothing to do with her.

[27]At some point in the week following the 10 November 2017, the settings of the Website were adjusted to require provision of a password to gain access (at least to some sections).

[28]On 17 November 2017, by email, the Claimant’s solicitors sent the Defendant a further copy of the Order of 9 November 2017 and the Judgment of the same date. The Claimant notified the Defendant of what they contended were breaches of the injunction and stated, “password protecting your website is not sufficient and constitutes continued publishing” to those with the password. The email concluded:

“Should you not comply fully with the Order then we anticipate that an application for contempt of Court will be issued.”

[29]Some further changes were made to the Website, but, on 1 December 2017, the Claimant’s solicitors again emailed the Defendant:

“We wrote to you on 17 November 2017 setting out the fact that your website continues to breach the order of the Honourable Mr Justice Warby dated 9 November 2017 (“the Order”). Subsequent to receiving that email it appears that you have made some changes to your website. However, there are still postings on it, and on your Facebook account, which are in breach of the Order. We attach a copy of the pages of the website (which have substantive content) as at 30 November 2017 and an example of one of the pages that is password protected…”

The solicitors noted that the Twitter account, about which complaint had been made, had been deleted. They complained that the Defendant had also not paid any sum of the damages or costs that had been ordered. Finally, they warned the Defendant that if he continued to breach the Order then he was at risk of proceedings for contempt of court.

[30]Evidence provided by the Claimant’s solicitors indicates that in the period from 17 - 30 November 2017, 6 statements that had been identified in the email of 17 November 2017 appeared to have been deleted or amended. The remainder appeared to have been deleted by 7 December 2017 (but see [37] below).

A new address for the Defendant

[31]Meanwhile, having still heard nothing from the Defendant, in early December, the Claimant’s solicitors instructed inquiry agents to try and locate an address at which the Defendant might be residing. Their investigations identified an address – 64 Abbotts Road, Letchworth, SG6 4UT – which had been linked to the Defendant by credit reference agencies from October 2016 to date.

[32]On 5 February 2018, the Claimant’s solicitors sent a letter to the Defendant by email, and also by hand to 64 Abbotts Road. It contained a further copy of the Order of 9 November 2017, the Judgment of the same date, and a draft Application Notice seeking the committal of the Defendant for breach of the injunction. A draft Affidavit of Ms Yates was also enclosed. The purpose of sending this, I infer, was to give the Defendant one last opportunity to comply with the Order.

[33]As confirmed in a witness statement dated 2 March 2018, another process server, Mark Da Costa, attended 64 Abbotts Road on 7 February 2018. There was no reply, so he returned the following evening at 5.30pm. Again, he got no reply, but he was able to speak to neighbours who said that the Defendant lived at the address. Mr Da Costa left a letter of appointment advising him of when he would return. On 9 February 2018, Mr Da Costa received a telephone call from a lady who said that she was the mother of the Defendant. She said that he did live at the address but that he was currently working abroad, and she thought that he would not be returning to the UK until at least the end of March 2018. Mr Da Costa returned to the premises on 11 February 2018 and got no reply. He spoke to a neighbour who said that the Defendant did live at the address and that he had “seen him around several times recently.”

[34]The Defendant has told me that the person Mr Da Costa spoke to on 9 February 2018 was not his mother, but his wife, Marie Jackson, and that they have a son also called ‘Robert’ and suggests confusion has arisen about whether Mrs Jackson was telling Mr Da Costa that the Defendant was abroad.

[35]It is convenient here to refer to the witness statement of Mrs Jackson, dated 1 June 2018, that the Defendant has served. She confirmed that she lives at 64 Abbotts Road and stated that the Defendant, “does not live with me although occasionally I allow him to stay at the address for the odd night or two.” Mrs Jackson says that she has refused to accept anything sent to her husband at 64 Abbotts Road or answer any inquiries relating to him. She does not refer to the call with Mr Da Costa and gives no detail about what she has done with documents sent or delivered to 64 Abbotts Road addressed to the Defendant and what, if anything, she told the Defendant about efforts to contact him.

[36]On 15 February 2018, the Website presented a holding page stating “Pirtek-Franchise.com is being updated, check back soon”.

The Committal Application Notice

[37]On 9 March 2018, the Claimant issued an Application Notice seeking orders punishing the Defendant for contempt of court arising from his alleged breaches of the Order of 9 November 2017 (“the Committal Application Notice”). It was supported by the First Affidavit of Ms Yates. She set out in a schedule some (but not all) of the alleged breaches of the injunction said to have been committed by the Defendant. She noted, however, that the Defendant was “continually amending the Website and his other social media platforms yet failing to comply with the Order”. She explained:

“As the Court will see from the schedule of breaches and the annexes to that schedule, there are (or have been) numerous breaches of the Order, which for the reasons set out above illustrate both current and past breaches. It seems that Mr Jackson no longer provides links on the main body of his website to all of the various pages. For example a lot of the defamatory statements appear on the webpage www.pirtek-franchise.com/entries. However, there is no link to that page of the website from the home page (or anywhere else that I can find within the website proper). Further it seems that, rather than remove some of the offending material (which is what I originally thought he had done), Mr Jackson has just password protected certain pages and removed links to those (and other pages) from the main body of the website. For example www.pirtek-franchise.com/churning is now password protected. Therefore, if you just do a search for www.pirtek-franchise.com and then review the contents of that website, it looks like Mr Jackson has made significant attempts to clean up that site. However, it now appears that what he’s actually done is remove links to other pages of his website so, when first looking for the defamatory comments, it looks like they’ve been removed when some of them haven’t and others have been password protected… … It appears that Mr Jackson is attempting to give the appearance of compliance with the Order (by making changes to the website when I write to him). However, by removing the links to the most offending pages, what he is really doing is disguising what he is doing and showing a blatant disregard for the Order. What he is demonstrating is that he is perfectly cognisant of the content of the Order and the consequences of it. He simply, yet again, chooses not to engage with this forum and does not seem to recognise the authority of the Court.”

[38]In a second witness statement dated 22 March 2018, Mr Da Costa set out his further efforts personally to serve the Defendant at 64 Abbotts Road. He said that he attended the premises on 11 March 2017 where he met an adult female who told him that ‘Robert Jackson’ was not at home. He attended again on 12 March 2018 at 2.30pm and received no reply. A neighbour, however, told Mr Da Costa that he had seen the Defendant leave the property earlier that day.

[39]Having failed to serve the Committal Application Notice personally on the Defendant (which is the usual requirement), the Claimant applied to the Court for an order authorising an alternative method. On 29 March 2018, Master Eastman made an order pursuant to CPR 81.10(5) granting permission to the Claimant either dispensing with the requirement of personal service of the Committal Application Notice or permitting it to be served by email on the Defendant.

[40]Following Master Eastman’s Order – sealed on 5 April 2018 – by email of the same date, the Claimant’s solicitors sent to the Defendant a further copy of the Committal Application Notice, draft Order for committal, schedule of breaches and the Affidavit in support. A copy of Master Eastman’s Order of 29 March 2018 was also enclosed. The Defendant was told that he would be advised of the date of the hearing once it was fixed. That was subsequently fixed for 30 April 2018 and the Defendant was advised of the date in an email dated 11 April 2018 from the Claimant’s solicitors. That email urged the Defendant to seek legal advice and advised him that legal aid was available for those who were a respondent to a committal for contempt application. A bundle for the hearing was sent in hard copy to 64 Abbotts Road on 20 April 2018 (but returned). It was also sent by a series of emails.

The Hearing on 30 April 2018

[41]The committal application came before Warby J on 30 April 2018. The Defendant did not attend, was not represented and had made no contact either with the Claimant’s solicitors or the Court to explain his absence. Ms Addy again represented the Claimant.

Judgment on 1 May 2018

[42]Adopting the same approach as he had on 7 November 2017, Warby J reserved judgment on 30 April 2018. With impressive speed, he handed down judgment the next day, 1 May 2018 (

[2018] EWHC 1004 (QB)

). The Judge recounted the history ([1]-[21]) and decided that he could and should proceed in the Defendant’s absence ([24]-[35]). He found ([31]):

“… In November 2017 I reached the conclusion that [the Defendant] had deliberately absented himself. I approach the issue with added caution on this occasion, as the matter is quasi-criminal. But the evidence convinces me that Mr Jackson has again decided not to engage with the Court process. He knows he is being pursued by way of a committal application. He has had the paperwork, by email. He has had an adequate, detailed, account of the complaints against him. He has had a full and fair opportunity to respond. He has chosen not to do so. The fact that he took the same approach before is just an added reason for these conclusions.”

[43]The Judge went on to consider the allegations of contempt made against the Defendant. He applied the criminal standard of proof and found the Defendant in contempt of court for several breaches of the injunction order of 9 November 2017. He rejected some alleged breaches as not having been proved and declined, in the interests of proportionality, to rule on the balance. As is required in contempt cases, the Defendant’s breaches of the order found by the Court were individually specified in an Order of 2 May 2018. The Judge again directed that the Order should be served on the Defendant by email.

[44]Although the Judge could have proceeded to consider what sanction should be imposed for the breaches of the order he had found, he adjourned the decision regarding sanction to Friday 4 May 2018. Throughout the case, nothing but scrupulous fairness has been shown to the Defendant, notwithstanding the findings that he was deliberately absenting himself from the proceedings.

[45]The Claimant’s solicitors sent Warby J’s judgment to the Defendant by email at 1.25pm on 1 May 2018. The email contained the following statement:

“The penalty hearing will proceed on Friday 4 May 2018. Please contact a solicitor as a matter of urgency. This is a very serious matter, as the Court’s powers includes committing you to prison. I again inform you that legal aid is available to you.”

(emphasis in original) The email provided a website link to the Legal Aid Agency and also provided the telephone number to contact them.

[46]The sealed Order of the Court, which set out the breaches of the Order of 9 November 2017 that had been found against the Defendant, was sent by email to the Defendant at 16.37 on 2 May 2018. A further copy of the Judgment of 1 May 2018 was also included.

[47]At 14.50 on 3 May 2018, the Claimant’s solicitors emailed the Defendant to advise him of the time of the hearing the following day and confirm details of the Court.

The Hearing on 4 May 2018

[48]On 4 May 2018, the Defendant attended the hearing in person, although he was accompanied by a McKenzie friend, Trevor Mealham. Ms Addy represented the Claimant. The Defendant was provided with a copy of the hearing bundle. A full transcript of the hearing has been obtained and I have read it. The Defendant made no contact with the Claimant before attending the hearing. After

the Judge had established that he was Robert Jackson, the Defendant began to address the Judge:

“Your Honour, it came as quite a shock to me. I would just like to say that as far as I am concerned I have been made a scapegoat for this particular excitement and I would categorically insist that I am not the publisher, I am not the editor, neither am I the author. I am here today to defend false allegations number 15 in your judgment in relation to the hearing on 30th regarding malicious falsehood. The only thing malicious is their claim against me as an easy target.”

At that point, the Defendant handed up to the Judge a letter in a form of a witness statement (verified by a statement of truth) dated 3 May 2018 (“the 3 May Statement”). It was the first time Ms Addy had seen the document. The Judge retired to read the statement.

[49]In the statement, the Defendant gave his address as 64 Abbotts Road, Letchworth, SG6 4UT. He set out details of his original dispute with the Claimant and then turned to explain his lack of knowledge of the proceedings:

“I was unaware of the hearings in the High Court having NOT been served notices. It is only this week that I have found communications from Emma Yates of Irwin Mitchell in my email SPAM box. As such I have not been able to attend Court when I have not known about it… Since discovering Miss Yates emails. (sic) In the last couple of days I have been round 7-8 lawyers in Hertfordshire who said they either didn’t accept legal aid cases, notice was too short or they did not deal in defamation. OR fraudulent cases, as I claim Pirteks (sic) whole claim is orchestrated from criminal fraud…”

As to the allegation that he was responsible for the Website, he said:

“I have no idea how to construct or even buy a website. I am not a techie. I have not engaged anyone to purchase the website, let alone myself or anyone else engaged to (i) author, (ii) apply content, (iii) design or (iv) edit or (v) publish any content whatsoever.”

He stated that Mr Mealham had carried out a domain search and established that the Website was registered to “Privacy Protect LLC” in Burlington in the US. “As you can see this is not me … I suggest that before making false allegations which has and is causing me and my wife and children distress; Pirtek and their legal team should see who is behind the above registration for which I have not been involved in (sic).” (emphasis in original)

[50]The Defendant then suggested that, on the basis of further inquiries by Mr Mealham, the Website had “likely been created by: * Pirtek or Irwin Mitchell themselves in order to extort further sums from us through false and hearsay allegations * Maybe another unhappy franchisee * A chancer web builder using my identity to gain web hits * A competitor of Pirtek * An employee of Pirtek seeking revenge on Pirtek, or even angst against me, who has been malicious in using my name as [a] front”

[51]He suggested that the Court should order the Claimant to produce evidence as to who set up and owned the website, that the claim should be struck out with “all their costs being null”, and that the Defendant and his wife be “compensated £10,000 each for the current stress caused and harassment.” He also asked for an order annulling the costs order made against him in the Order of 9 November 2017.

[52]Ms Addy asked me to note, in particular, the following paragraph in the 3 May Statement:

“I ask that his honour removes all threat of prison when the claimants have failed to serve papers in a fashion allowing us to defend this further attack on me, in allegations which are not true…”

[53]The 3 May Statement appeared to have little by way of detailed explanation as to why the Defendant had absolutely no knowledge of the proceedings. This clearly troubled the Judge, and he said to the Defendant:

“… I need to know from you whether you say you knew nothing about the application for default judgment. That is the first thing… I need to know from you whether you say you knew nothing about the committal hearing that took place on Monday [30 April]. I need to be clear what it is you say you did not know about… What about the default judgment application which was heard as long ago as November 2017?”

The following exchanges then took place between the Defendant and the Judge: 54. Defendant: I quite simply did not receive any documents, you know? I get by on internet. I am an engineer. I am coming up for 70 years of age and I am not capable of constructing a … 55. Judge: I am not asking about the website. You have an email address? 56. Defendant: I do yes. 57. Judge: Yes. Are you telling me from there – you are not on oath at the moment – but are you telling me from there that you had no notice of the fact that the company was applying for a default judgment against you? 58. Defendant: The company was… No. It went into my Spam box. I get all sorts of emails… [Mr Mealham asks whether he can say something, but the Judge says that the Defendant is perfectly able to explain his position.] 59. Judge: So are you telling me – and I am making a note of this – that you did not know that the company was applying for judgment against you? 60. Defendant: I heard rumours, that is all. 61. Judge: You heard rumours? 62. Defendant: And I had seen on the website, on the particular website, a question that… [Mr Mealham interrupts, but is told by the Judge not to prompt the Defendant] 63. Judge: … So, you had heard rumours that the company was seeking judgment against you and that is all. That is what I have written down. 64. Defendant: Yes, because I think they put an article on the website back last year some time, you know, that they were going to seek whatever. They got a defamation process. 65. Judge: Right, okay. You now know that, as long ago as November, I gave judgment in default against you? Have you read the judgment that was --- 66. Defendant: I have read it, yes. 67. Judge: That tells you that as long ago … 68. Defendant: Yes you found against me… 69. Judge: … Then the next thing – and this is the second of the two questions I wanted answered – are you saying you knew nothing about the application which I dealt with on Monday --- 70. Defendant: No. 71. Judge: --- to send you to prison for contempt of court? 72. Defendant: No, no. 73. Judge: When did you first know about that? 74. Defendant: A couple of days ago. 75. Judge: How did you come to know about it? 76. Defendant: Because I had somebody within the organisation who… The Pirtek Action Group has been going since 2011 and somebody within the Pirtek Action Group informed me that that was the case…. And I subsequently pursued the emails that were relating to Irwin Mitchell and their case and yourself, sir. 77. Judge: Can you remember when it was that you first became aware that there was a hearing today? 78. Defendant: I think it was Tuesday [1 May] or Wednesday [2 May] this week.

The following exchanges then took place between the Defendant and the Judge:

[54]After hearing further submissions, Warby J treated the Defendant as making an application under CPR Part 23.11(2) to re-hear (i) the Default Judgment Application heard on 7 November 2017; and (2) the Committal Application heard on 30 April 2018 (“the Re-hearing Application”). He directed that the Defendant was to file and serve an Affidavit setting out the evidence on which he wanted to rely in support of the Re-hearing Application. The Judge told the Defendant that the 3 May Statement had lacked focus on the important matters that he needed to address. He was clear with the Defendant what evidence he needed to provide:

“… what I would be looking for… is a detailed account of where he lived, when, what times of day he was in, what he says about the precise detail about the evidence about service, did he never get any of these e-mails, did he never learn from neighbours or from his mother (if that is who it was), all that sort of thing. Did he remain in complete ignorance of all these proceedings from start to finish and how could that be?... That is what one would hope would be dealt with in an affidavit.”

On that basis, the Judge adjourned the Committal Application and the Re-hearing Application to a date to be fixed. Unfortunately, the Order contained the 61 Purwell Lane address for serving documents on the Defendant whereas he had confirmed that the 64 Abbotts Road address should be used.

The Defendant’s next steps

[55]Following the hearing, there was something of a flurry of activity from the Defendant (who enjoys the benefit of a waiver of court fees).

[56]On 16 May 2018, the Defendant issued an Application Notice seeking to set aside Warby J’s order of 4 May 2018: “as it is defective, because the underlying assumptions (that service documents (sic) had already been effected) are incorrect” (“the First Application Notice”). He complained that the order contained the wrong address for service, and stated that he did not have copies of the Applications that he had been ordered to respond to.

[57]On 23 May 2018, the Defendant provided a Witness Statement to the Claimant and to the Court. It attached a ‘Scott Schedule’ responding to evidence from Ms Yates. That document was generally argumentative – and not helpful – but it did contain the following statement:

“It is correct that I found an email from the Claimant’s solicitors in my ‘spam/junk’ email box in my email account. As far as I am aware the spam/junk email provision in my email account automatically deletes spam/junk emails after a short period. I do not routinely open or inspect the spam/junk folder as it is swamped with a lot of unsolicited mail which might contain viruses. Also there is no guarantee that an email purportedly sent by an entity is actually from that entity as many spoof emails with similar sounding names are circulating and so I routinely ignore my spam/junk email folder. It is possible that emails have been sent but not received or deleted without opening as being suspect. I have not kept a record of this. It is not correct to say that emails ‘reached’ me because they haven’t. I was unaware that the Claimant was trying to serve documents by email and so did not keep a particular look out for such documents. Additionally, I have been given to understand that my email account might have been hacked as other people have informed me that they have sent me emails which I have not received.”

[58]On 31 May 2018, the Defendant provided his First Affidavit. It did not concentrate on the evidence about his knowledge of proceedings. The Defendant denied that he had had anything to do with the Website, Facebook or Twitter and complained that the Claimant was harassing him.

[59]On 7 June 2018, the Defendant issued three separate Application Notices seeking: i) a declaration that the Court did not have jurisdiction over the Claimant’s claim because of s.10 Defamation Act 2013; the entire claim be set aside pursuant to CPR Part 11.16(a); any orders made before the claim was served on the Defendant be set aside (“the Second Application Notice”); ii) an order setting aside Master McCloud’s order of 31 July 2017 (“the Third Application Notice”); and iii) an order setting aside Warby J’s judgments of 1 May 2018 and 7 November 2017 and orders of 9 November 2017 and 1 May 2018 (sic) pursuant to CPR 28.8.1 and CPR 23.10(1) There is no CPR 28.8.1. CPR 23.10(1) provides:

“A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.”

The Application under this rule was inapt. CPR 23.9 is the rule that enables the Court to permit an application to be dealt with without the applicant being required to serve a copy of the Application Notice on the respondent. That is not what happened either at the hearing on 7 November 2017 or 30 April 2018. Nevertheless, it is clear that the Defendant, by the Fourth Application Notice, is seeking to set-aside the Orders made as a result of these hearings because they took place in his absence and (on his case) without his knowledge. This therefore is covered by the Re-Hearing Application. (“the Fourth Application Notice”).

[60]The Third Application Notice was supported by witness statements from: i) the Defendant who, so far as relevant, stated(1) he did not and had not lived at 61 Purwell Lane; and

(2) Mr Evelyn, the process server, had been told by his daughter that he did not reside at that address and she refused to accept service of documents and had not advised him of any documents that she had received; and ii) Mary Jackson, the Defendant’s daughter, who stated (1) 61 Purwell Lane was her address; (2) since her parents’ separation, her mother had lived at 64 Abbotts Road and her Father had had "a more transient existence and has had many part-time and temporary abodes". She did not want the Defendant to move into her house as it was too small;

(3) she had "refused and will continue to refuse to accept all and any communications to my father addressed to my family home";

(4) she complained that she had been the subject of harassment by people repeatedly calling at her home “at any hour” with documents for her father; and

(5) in November 2017, she said a person had left a package and told her that she had to pass it on to her father. She states that she informed him that she had no such duty, that her father did not live at her house and he should “cease and desist” further intrusion into their lives: "Any and all correspondence sent to, delivered to, posted, dropped off etc. at my house addressed to my father has been and will continue to be deposited at the roadside or otherwise returned to sender or disposed of. Our home is not a receptacle for spurious unwanted paperwork from Pirtek (UK) Limited.” She did not set out what, if anything, she had told her father about the efforts to contact and deliver documents to him at her address. I would note, here, that it appears that Ms Jackson did not adopt the simple expedient of contacting the Claimant’s solicitors to tell them that the Defendant did not live at the address and that they were not to send correspondence, or other documents, to her address marked for him. Dumping correspondence “at the roadside” might be regarded as an unusual response.

[61]On 7 June 2018, the Defendant also swore his Second Affidavit. In summary he stated: i) that he had not been served with the Claim Form; ii) that he did not live at 64 Abbotts Road, although occasionally his wife allowed him to stay at the address “for an odd night or two on an ad hoc basis between my wanderings”. iii) that: “I myself found it more difficult to arrange a permanent residence and have spent the past 2 years living out of a suitcase in temporary accommodation at a variety of addresses, occasionally at the homes of my children or at hotels, bed & breakfast accommodation etc. I have lived a wandering existence and cannot be said to have had a fixed abode or anywhere where effective service of documents could be made. I do not know where I will be from one week to the next. My personal possessions are scattered across the South of England.” iv) that his wife, Marie, had “up to now rejected anything sent to me or enquiries regarding me that have been made to 64 Abbotts Road”; and v) that he was unaware of service of any documents alleged to have been served at 64 Abbotts Road and stated that he had not received or been served with “the documents relating to this claim”.

[62]On 8 June 2018, the Claimant’s solicitors wrote to the Court to protest about the proliferation of Applications. That letter was referred to me on 12 June 2018 and, after considering the First to Fourth Application Notices, on that date I made an order without a hearing (but with reasons stated): i) dismissing the First Application; ii) directing the Re-Hearing and Fourth Applications be listed for a hearing at a date to be fixed between 2 to 31 July 2018; and iii) adjourning consideration of the Second and Third Applications until the Re-Hearing and Fourth Applications had been ruled on and that the Defendant should not, without the permission of the court, issue any further applications until the Re-Hearing and Fourth Applications had been determined. The Order gave the Defendant permission to apply to set aside or vary the order, having been made without a hearing.

[63]On 13 June 2018, before he had received my order of 12 June 2018, the Defendant issued a further Application Notice seeking to strike out the Claimant’s solicitors’ letter of 8 June 2018 (“the Fifth Application Notice”). Without a hearing, I dismissed that application as totally without merit on 13 June 2018.

[64]On 18 June 2018, the Defendant filed an Acknowledgement of Service contesting the jurisdiction of the Court.

[65]On 19 June 2018, the Defendant issued two Application Notices seeking i) to set aside the order made on 12 June 2018 dismissing the First Application (“the Sixth Application Notice”); and ii) to set aside the Order of 13 June 2018 ([63] above) (“the Seventh Application Notice”). I deal with these Applications in [131] below.

[66]On 27 June 2018, the Defendant issued an Application Notice seeking an order that the Court does not have jurisdiction to determine the Claimant’s claim by virtue of s.10 Defamation Act 2013 and that the Court should therefore strike out the entire claim (“the Eighth Application Notice”). I deal with this Application in [131] below.

[67]The Re-Hearing Application was listed to be heard on 24 July 2018. In light of that, on 4 July 2018, I made a further order without a hearing: i) the Defendant was to serve and file any further affidavit in accordance with Warby J’s order of 4 May 2018 by 13 July 2018; ii) in any such affidavit the Defendant was required to set out “all the evidence relating to his knowledge (or lack of knowledge) of these proceedings upon which he wants to rely in support of his [Re-Hearing Application]”; iii) the Defendant would be liable to be cross-examined on his evidence at the hearing on 24 July 2018; and iv) the Claimant was to file and serve any further evidence upon which it wanted to rely by 20 July 2018. So that it was clear to the Defendant what evidence he needed to provide, in the “Reasons” section of the Order, I stated:

“The central issue to be determined at the Hearing is whether the Defendant knew about the proceedings. The evidence [relevant] to that issue is important and the Defendant, in his own interests, needs to put forward all of his evidence relating to this issue in the Affidavit that he has previously been ordered to provide.”

[68]On 5 July 2018, the Defendant issued an Application Notice seeking permission to make an application to set aside all judgments and orders in the case under CPR Part 39.3(3) (“the Ninth Application”). I deal with this Application in [131] below.

[69]Also, on 5 July 2018, the Defendant swore his Third Affidavit. In it, he stated (amongst other things):

“I only found out about the ‘approved’ default judgment via an email from Emma Yates Solicitor from the Claimant on 2 May 2018”

The emails sent to the Defendant on 1-2 May 2018 are set out in [45]-[46] above.

[70]The Defendant swore a Fourth Affidavit on 13 July 2018. It did not contain any evidence relevant to the issue of his knowledge of the proceedings, but it did exhibit his First, Second and Third Affidavits.

[71]In compliance with the Order of 4 July 2018, the Claimant filed and served the Fourth Witness Statement of Ms Yates on 20 July 2018. Ms Yates complained that the Defendant’s Fourth Affidavit did not comply with the Order of 4 July 2018. She set out the evidential basis on which the Claimant contended that the Defendant had known about the proceedings throughout and had chosen to ignore them. She also analysed what the Defendant had stated about his knowledge of the proceedings in the various witness statements and Affidavits that he had provided. Hearing on 24 July 2018 Preliminary Matters

Hearing on 24 July 2018

[72]The Defendant provided a Skeleton Argument for the hearing. In it, he made a series of preliminary complaints, including: i) that he had had his ability to defend himself restricted by being prevented from issuing any further Application Notices (order of 12 June 2018); ii) that the Court had no jurisdiction to hear the Claimant’s claim under s.10 Defamation Act 2013; iii) that my order of 4 July 2018 that the Defendant was liable to be cross-examined was unlawful because he was not obliged to give evidence in committal proceedings, the burden of proof (to the criminal standard) being on the Claimant; and iv) that the Court’s orders were unlawful under

Article 6 of the ECHR

[73]At the hearing, the Defendant was again accompanied by Mr Mealham and, on this occasion, a further MacKenzie Friend, Mr David McNeil. Given his position as a litigant in person, and in light of the complaints he had made in his Skeleton Argument, I made sure at the beginning of the hearing that he understood the process and where the proceedings had reached. i) The Orders of 9 November 2017 and 2 May 2018 had, respectively, granted the Claimant judgment on its claim and found the Defendant in breach of the injunction order made on 9 November 2017. ii) Subject to his Re-Hearing Application, the Court had determined, as a fact, that the Defendant was the person responsible for the Website. As such, his contention that the Court had no jurisdiction over the claim under s.10 Defamation Act 2013 was wrong. iii) The Order of 12 June 2018 had put a temporary prohibition on his issuing any further applications because it was important, first, to determine the Re-Hearing Application (and the Fourth Application) because until those were determined there was no point in issuing further Application Notices. It had not, in any way, affected his ability to put forward the submissions and evidence he wished to present in relation to the Re-Hearing Application. iv) He had misunderstood the position regarding cross-examination. The Court had already found the Defendant guilty – to the criminal standard – of contempt of court. The Defendant was seeking to re-open that finding. The burden was on him to demonstrate that there were proper grounds to do so. As such, he was not at risk of any (further) finding of contempt at this hearing and he did not have a ‘right’ to refuse to be cross-examined. It was his choice whether to submit to cross-examination in support of his Re-Hearing Application, but if he refused that was likely adversely to affect the weight that I would attach to his written evidence.

[74]Having given this explanation, I rose to give him an opportunity to discuss what I had said with Mr Mealham and Mr Mr McNeil. When he returned to Court, he asked me whether he would be allowed to cross-examine Ms Yates on her evidence. I confirmed that he would, subject to his questions being relevant to the issue of his knowledge of the proceedings and service of documents. Mr Evelyn and Mr Da Costa had also attended Court and were available to be cross-examined, but the Defendant confirmed during the hearing that he did not seek to challenge their evidence, so they were released.

Application for a re-hearing: Legal Principles

[75]The Re-Hearing Application was brought under CPR Part 23.11, which provides as follows:

“(1) Where the applicant or any respondent fails to attend the hearing of an application, the court may proceed in his absence. (2) Where – (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application.” (a) the applicant or any respondent fails to attend the hearing of an application; and (b) the court makes an order at the hearing, the court may, on application or of its own initiative, re-list the application.”

[76]In Riverpath Properties Ltd -v- Brammall (unreported ChD, 31 January 2000), Neuberger J explained the jurisdiction under CPR Part 23.11:

“… the concept of relisting the application effectively means that the court can rehear the application in full and make such different order as it thinks appropriate. It seems to me that the effect of rule 23.11(2) is to give the court a very flexible power as to what it does in relation to setting aside and ordering a rehearing in respect of an order that it made in the absence of a party. I say that it is flexible because rule 23.11(2) contains no fetter on the court's discretion. In my judgment, however, it would be a very rare case where the court exercised this jurisdiction to set aside an order that it had made, if it was satisfied that there was no real prospect of any new order being different from that which it originally made... It also seems to me that the court has a fairly wide discretion as to the terms upon which it may grant or refuse such an application.”

[77]Riverpath was considered by David Halpern QC (sitting as a Deputy High Court Judge) in Yeganeh -v- Freese

[2015] EWHC 2032 (Ch)

and the Judge extracted two key principles:(1) the power under CPR 23.11 is to be exercised sparingly having regard to the overriding objective; and

(2) the merits will be an important factor ([28]).

[78]When considering an application under CPR 23.11 by a party who was absent from a hearing to re-hear the original application, the Court should have regard, by analogy, to the factors that the Court considers when an application under CPR Part 39.3 is made by someone who failed attend the trial of a claim: Tubelike Limited -v- Visitjourneys.com Limited

[2016] EWHC 43 (Ch)

[21]-[22]; Phonographic Performance Limited -v- Balgun

[2018] EWHC 1327 (Ch)

[15].

[79]CPR Part 39.3 provides as follows:

“Failure to attend the trial (1) The court may proceed with a trial in the absence of a party but– (a) if no party attends the trial, it may strike out the whole of the proceedings; (b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and (c) if a defendant does not attend, it may strike out his defence or counterclaim (or both). (2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part. (3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside. (4) An application under paragraph (2) or paragraph (3) must be supported by evidence. (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.”

[80]It is clear, however, that the Court should be cautious before applying CPR 39.3(5) in any way mechanistically to a party’s absence at a hearing other than trial. The Court of Appeal in Nelson -v- Clearsprings (Management) Limited

[2007] 1 WLR 962

, held that the whole of CPR 39.3 was premised upon the judgment obtained by default being a regular judgment ([39] per Sir Anthony Clarke MR):

“We do not think that the draftsman of the CPR can have intended to introduce what the editors call the more stringent requirements of rule 39.3(5) into applications to set aside judgments irregularly obtained, in the sense of being obtained without service of the claim form in accordance with the rules. In our judgment, the whole of CPR r 39.3 contemplates a trial in the absence of a party who has been served under the rules or in respect of whom service has been dispensed with.”

[81]The Court of Appeal referred to the Court’s powers under CPR 3.1(7) and CPR 3.10 to set-aside irregular judgments where there had been, for example, a failure to serve the relevant party ([48]).

[82]Those authorities show the importance of establishing whether the party has been validly served as an important factor when the Court is considering whether to exercise any power to set aside an order, or under CPR 23.11, rehear an application.

[83]A deliberate choice, by a person who has notice of proceedings or a hearing, to ignore them, is a very powerful factor against setting aside an order or ordering a re-hearing.

[84]In Shocked -v- Goldschmidt

[1998] 1 All ER 372

the Court of Appeal dealt with a case where the Claimant had consciously chosen not to attend the trial. Judgment on the Defendant’s counterclaim was entered against her. The Court held that her application to set aside the judgment should be refused.

[85]Before turning to look at the conclusions of the Court on the issues of principle, it is perhaps important to note the facts relating to how the Claimant came to be absent from the trial. I can take them from the judgment of Leggatt LJ (at p.374e-375c):

“Mr Goldschmidt was appointed Ms Shocked's agent for one year (with an option for another four) under a management agreement of 8 July 1987. There followed in November 1987 a recording agreement between Ms Shocked and Polygram Records Inc, and in January 1988 a publishing agreement between her and Polygram Music Publishing Ltd. In September 1989 she appointed Peter Golden as her personal manager, and at about the same time she appointed Helen Cohen as her business manager. On 5 October 1989 she purported to terminate Mr Goldschmidt's management agreement, and on the following day he accepted the termination as a repudiation. The writ, giving Ms Shocked's address as 3/4 South Virgil, Los Angeles, was served at once. Her affidavit verifying a list of documents in July 1990 gave the same address. In November 1990 Mr Gordon, whose assistant was Mr Gerrard, became her personal manager. In December 1990 Denton Hall, who had been acting as Ms Shocked's solicitors, obtained a conditional order to come off the record, and she gave notice of acting in person, giving as her address that of Helen Cohen at 223 West Alameda Avenue, Burbank, California. Her American lawyer, Mr Taylor Light, had asked the defendants' solicitors to send correspondence to his firm or care of Helen Cohen. On 12 February 1991 an order for security for costs was made in favour of the first two defendants with a stay meanwhile. This had the inadvertent effect of staying the counterclaim as well as the claim. In June 1991 the plaintiffs' action was dismissed for failure to provide security for costs. On 27 August 1992 the stay was lifted. That order, served by sending it to 223 West Alameda Avenue, was returned to sender. During the previous 18 months other documents had been served in the same way without being returned. Ms Shocked says on affidavit that she could not afford to put up the security for costs. Mr Gordon advised her to pay and settle. So she left it to him and Mr Gerrard to negotiate a settlement. She understood that an advance of publishing royalties might be obtained to help with settlement. She says that by March 1992 Mr Gerrard had left Mr Gordon's firm, and unbeknown to her Mr Gordon was also in the process of retiring. She assumed the proceedings had been settled. She was recording and touring all over the world. She says that she was not told about the order for security for costs or the dismissal of her claim or the continuance of the counterclaim. In August 1992 while on tour in the United States she was asked by her business manager to put Messrs Clintons, the London solicitors, in funds. She had not heard of them, and understood that this was something to do with withdrawing the proceedings. She later understood that it resulted in an adverse order for costs. In mid-October 1992 Mr Gordon ceased to act as her personal manager. She says that she was not told of the impending trial of the counterclaim until in the middle of a difficult tour Mr Taylor Light telephoned on 21 October 1992 to say that the counterclaim was for hearing on 2 November 1992. She was on tour and without a personal manager, backing band or money. She says that on 28 October 1992 she telephoned Messrs Denton Hall and asked Mr Anderson to represent her at trial, but he said that it would be difficult owing to shortness of time.”

[86]The Claimant had made no application for an adjournment of the trial and her failure to attend (or be represented) was described as her having “foolishly put her head in the sand”hoping thatthe proceedings “would go away”.

[87]Leggatt LJ noted that the authorities on setting aside judgments fell into two main categories:(a) those in which judgment had been given in default of appearance, or pleadings or compliance with a court order; and

(b) those in which judgment had been given after trial, albeit one that took place in the absence of the party seeking now to set aside the resulting order. “Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed.” (at p.377j-378a)

[88]Even in the first category, a deliberate decision to ignore the proceedings was a very weighty factor when the court was considering an application to set aside (at p.378j-379d): “… [In] Vann -v- Awford (1986) 130 SJ 682, the judge declined to set aside a judgment given against the second defendant in default of appearance, and also a judgment given against him when damages were assessed in his absence. He had lied when he said on oath that he had no knowledge of the proceedings. On appeal Dillon LJ considered that, despite the prejudice to the plaintiffs, as there were ample arguable defences the award should be set aside and there should be a fresh hearing. He added: 'Even for lying and attempting to deceive the court, a judgment for £53,000 plus is an excessive penalty if there are arguable defences on the merits.' Nicholls LJ, agreeing, observed that the judge was plainly right to treat the appellant's misconduct as a very serious matter, but held that the judge fell into error in not also considering and giving proper weight to the respects in which, and the extent to which, the plaintiffs would suffer prejudice if the judgment was set aside. He concluded that, balancing these considerations and taking into account the appellant's misconduct in the face of the court, the balance came down firmly in favour of the appellant having the opportunity to present to the court his defence on the claims made against him. The judgment was accordingly set aside on terms. That case was followed two weeks later by The Saudi Eagle

[1986] 2 Lloyd's Rep 221

. After reviewing Evans -v- Bartlam and Vann -v- Awford, Sir Roger Ormrod came to the conclusion that the defendants in the case before the court had failed to show that their defence enjoyed a real prospect of success. He added (at 225): 'The conduct of the defendants … in deliberately deciding not to give notice of intention to defend because it suited the interests of the group to let the plaintiffs proceed against these defendants is a matter to be taken into account in assessing the justice of the case.' 'The conduct of the defendants … in deliberately deciding not to give notice of intention to defend because it suited the interests of the group to let the plaintiffs proceed against these defendants is a matter to be taken into account in assessing the justice of the case.'

[89]Leggatt LJ identified the principle to be extracted from the authorities in relation to applications to set-aside default judgments as follows (at p.379f):

“… the question of whether there is a defence on the merits is the dominant feature to be weighed against the applicant's explanation both for the default and for any delay, as well as against prejudice to the other party.”

[90]In relation to the second category - absence of a party from trial – Leggatt LJ again reviewed the authorities, including an unreported Court of Appeal decision in 1986, Craddock -v- Barber, in which the Defendant had indicated that he had no intention of attending the trial of the claim. An application to set aside judgment was refused. Browne-Wilkinson V-C held (p.380g-j):

“For myself, I think in a case such as this, where a party has been clearly notified of a date for trial and has deliberately chosen to absent himself, it is a most real consideration to be taken into account in assessing where the interests of justice lie. Certainly the interests of justice require that a man should at least have the opportunity of a trial; but if he chooses to ignore the opportunity given him I see no manifest injustice in not offering him a second opportunity. I am not in any way seeking to lay down any rule but I would say it was entirely open to the judge in this case to say that this gentleman had his opportunity, he had contumaciously decided not to take advantage of it, the defendant has an order in his favour and to reopen that would be detrimental to him, and balancing those factors reach the conclusion that the interests of justice did not require the order of [the judge] to be set aside.”

[91]Leggatt LJ identified the following principles, extracted from the authorities, in relation to applications to set aside judgments granted in default of attendance at trial as follows (at p.381e-j):(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short. And added (p.381j and 382c-d):

“Contrasting the cases in the two categories it seems to me that whereas in the first the court is primarily concerned to see whether there is a defence on the merits, in the second the predominant consideration is the reason why the party against whom judgment was given absented himself… … To equate judgments by default with judgments given after a trial is heretical. If it were correct, a party who chose not to be present at trial could afterwards change his mind, and provided he was prepared to pay the costs thrown away could always procure a rehearing of the matter, however much time of the court had been wasted by his decision, whatever the inconvenience to his opponent, and however little his own conduct merited indulgence. That is not the law. Because it is not, this court must exercise the discretion anew.”

[92]Shocked was a pre-CPR decision, but in my judgment the principles are still of general application. Indeed, a number of the factors identified have even greater resonance when seen through the prism of the overriding objective.

[93]One of the Applications that the Defendant seeks to have re-heard is the Committal Application. Proceedings brought against a person for alleged breach of an injunction granted in civil proceedings are still civil in nature, albeit the Court’s powers of punishment include imprisonment. Proof of the alleged breach is also required to the criminal standard. A criminal trial can proceed in the absence of a defendant if the court is satisfied that he has deliberately and voluntarily absented himself: R -v- Hayward

[2001] QB 862

, 872H. It is equally clear that the Court can proceed in the absence of a respondent to an application for committal for breach of an

[94]It is perhaps important to note that, where contempt (and indeed, criminal) proceedings do proceed in the absence of the defendant/respondent, there is no question of the applicant/prosecution winning by ‘default’. In both instances the relevant charge(s) must be proved, by evidence, to the criminal standard. To that extent when a respondent seeks to set aside a finding of contempt or asks for a re-hearing of the application, the position is more akin to the second category of case identified in Shocked. Balanced against that, however, it seems to me right to have clearly in mind the potential sanctions that can flow from a finding of contempt if the finding of contempt is not set aside or reconsidered. That would tend to suggest some adjustment is required, in contempt cases, of the factors identified in Shocked ([91]). Consistent with the criminal jurisdiction, I consider that factors (3) to (8) would not be likely to carry as much weight in applications to set aside/re-hear contempt proceedings. The focus is likely to be on (1) and (2). That is not to say that merits cannot be important in some cases. For example, if a respondent, who has been found to have breached an order, could produce very strong (perhaps irrefutable) evidence that s/he had not done the acts alleged, that would be a very weighty (possibly decisive) factor. Borrowing from Vann -v- Awford, a sanction for contempt is an excessive penalty for ‘thumbing-your-nose’ at the court. There are adequate available options in orders for costs that can be imposed on those whose culpability is limited to deliberately staying away from a hearing. “The court must always guard itself against the temptation of allowing its indignation to lead to a miscarriage of justice”: Douglas v Hello! Limited (No.3) [2003] EMLR 29 [99] quoting Millett J in Logicrose Ltd -v- Southend United Football Club Ltd (No.1) (1988) 132 S.J. 1591;The Times,5 March 1988.

Application for a re-hearing: Evidence

[95]The principal evidence that I have considered on this application comes from the following sources: For the Defendant i) the Defendant’s witness statements and Affidavits (which I have summarised above); ii) the Defendant’s oral evidence when cross-examined; iii) a further Affidavit sworn on 26 July 2018 (the Fifth, with exhibits) received from the Defendant after the conclusion of the hearing dealing in the main with various health matters that he raised in the courts of his evidence (there has been no objection from the Claimant to my considering this evidence); iv) the witness statements of(a) Mary Jackson (see [55](v)(b)]); and

(b) Marie Jackson (see [35]) For the Claimant v) the witness statements (and where applicable, Affidavit evidence) of Alex Newman; Emma Yates; Dennis Evelyn (see [25]); and Mark Da Costa (see [33] and [38]); and vi) Ms Yates’ oral evidence when she was cross-examined. There is also a very large number of documents – in total filling 4 ring-binders – to which reference has been made. I have identified the key documentary evidence in my summary of the history of the claim.

[96]Before turning to my conclusions on the evidence, I should set out my assessment of the witnesses who gave oral evidence; the Defendant and Ms Yates.

[97]As a result of their previous relationship and litigation, the Defendant has a clearly deep-seated feeling that he has been seriously wronged by the Claimant. I am left in no doubt about the how strongly he believes this. His animosity and anger towards the Claimant now embrace the Claimant’s solicitors. He has lost all objectivity and that has led him to make the most extraordinary allegations of conspiracy that are simply incredible. Largely as a combination of these matters, he made a very poor witness. Overall, I cannot place any reliance on his evidence, indeed, in the material respects I have identified below, the Defendant’s evidence was clearly untrue, and I am satisfied, known by him to be untrue. The contemporary documentary evidence contradicts to such an extent his core account of being totally unaware of these proceedings, that the Defendant was reduced to putting forward ever more incredible alternative explanations. In parts of his evidence, he was making up his account as he went along, grasping for a version of events that he could make square with the other evidence and saying whatever he judged was to his best advantage. He had to be reminded, repeatedly, not to make attacks against the Claimant and Mr Newman from the witness box.

[98]Ms Yates was a straightforward witness. Although the Defendant indicated that he wanted to cross-examine her, once he was reminded that I would not permit cross-examination to roam outside the relevant issues to be determined, he actually had very few questions. I accept her evidence. Indeed, she was not materially challenged on her evidence by the Defendant. None of the other witnesses relied upon by the Claimant was required to give evidence and their witness evidence therefore stands unchallenged.

[99]I am going to divide my analysis of the evidence broadly into chronological periods. 13 April 2017 to judgment in default granted by order of 9 November 2017

[100]Because it features in the evidence as demonstrating that the Defendant was fully aware of these proceedings, I deal first with the Website itself. Whoever operates the website has decided to post a large amount of material, highly critical of the Claimant, part of which sets out the franchise dispute between the Claimant and Defendant. The facility offered to send messages to the website was titled, ‘contact Bob’. Of course, it may be a coincidence that the name “Bob” appears there. That could be explicable on the basis that another “Bob” had apparent control of a website which was publishing detailed material of the dispute between the Claimant and Defendant. But this is a piece of circumstantial evidence that is, at least, consistent with the Claimant’s case.

[101]The request Mr Newman made to the Defendant, via his email address and via the ‘contact Bob’ facility on the website, to provide his postal address ([4]) was clearly received. Two days later, a response referring directly to it was posted on the website ([6]). In his oral evidence, he denied that he had posted the response on the Website. His explanation for the facts(a) that it is written in the first person;

(b) that it made reference to a statement attributed to HHJ Gosnell (the transcript of which the Defendant has made reference to during the hearing);

(c) that it referred to the author’s “experience over the last decade” of the Claimant in which a “£30k dispute was escalated to £600k”, which was clearly a reference to the franchise dispute between the Claimant and the Defendant; and

(d) that it referred to the “repossession of my house”, was that someone else had posted it. That seems highly improbable, but, on this evidence alone, I cannot rule out that the response was sent in answer to the request made by Mr Newman via the ‘contact Bob’ facility on the Website. If another person was operating the Website, then s/he would have received and been able to respond to the message. The fact that the person wrote in the first person and included specific reference to a statement attributed to HHJ Gosnell that seems to feature as a prominent part of the Defendant’s case (see [114]), is evidence that, for the moment, I shall treat as circumstantial, however strongly it tends to point to the Defendant.

[102]The LBA sent on 19 April 2017 is, however, a different matter. This was only sent to the Defendant’s email address, not via ‘contact Bob’ on the Website [7]. It was, again, answered via the Website and written in the first person [8]. There were three further responses to the LBA posted on the Website [10]-[11]. Some of them included ‘screen-shots’ of the LBA. All were written in the first person and one of the postings contained an admission that the author was the owner of the Website and s/he “stood by what I have published”. From this, the sure conclusion can be reached that the person responsible for these postings on the Website had a copy of the LBA. The Defendant’s case is that he never received the LBA. In his evidence, the Defendant denied that he had written the postings, he had “no knowledge” of the LBA, and that he “cannot be responsible for what people put on a website”. His explanation is that emails went into the ‘spam’ folder of his email inbox and would ultimately be automatically deleted.

[103]The evidence I have set out of the LBA appearing on, and being responded to, via the Website demonstrates two things: first, the LBA was received by email, and the person who received it, posted it on the Website. Confronted with the cogency of the evidence, the Defendant could offer no explanation for how another person could have obtained a copy of the LBA. He claimed that he “exchanged documents with many people”. That was in direct contradiction to his evidence that he had not received the document at all. Later in his evidence, he was driven to the extraordinary claim that the Claimant had set up the Website itself and was ‘framing’ him. Perhaps detecting some incredulity, he modified this, slightly, to offer an alternative suggestion that it was a ‘disgruntled’ employee of the Claimant. But that claim still did not explain how this malevolent employee had got hold of a copy of the LBA. To accommodate this inconvenient fact, the Defendant suggested that the Claimant’s solicitors were involved too, presumably having been prepared to supply a copy of the 50-page document to this employee.

[104]I reject all of that. The Defendant’s answers are a series of increasingly desperate lies. The answer is plain and obvious. On the basis of the evidence I have set out, I am sure that the Defendant received the LBA via his email. He replied to it via the Website and even posted screen-shots of it, presumably for the purposes of assuring visitors to the Website of its authenticity. He stated, in the first person, that he intended to respond to the claim via the Website. All of this was done by the Defendant. No other explanation is remotely credible.

[105]If it needed any strengthening, this conclusion is also supported by what happened when the Particulars of Claim were served. Deep in that statement of case was the reference to the £15,000 spent by the Claimant employing a PR consultant [13]. The Particulars of Claim, together with the Amended Claim Form, were sent to the Defendant’s email address and 61 Purwell Lane on 9 August 2017. That was the address from which he had sent the letter of 22 May 2017 to Mr Newman’s home address [9] and from which he later sent the letter dated 23 August 2017 [15]. I do not know whether the Defendant received the Particulars of Claim by email or via 61 Purwell Lane (or both), but it is clear that he did receive them. On or around 15 August 2017, he had posted a new page on the Website that referred to the information about the money spent on the PR consultant that could only have come from the Particulars of Claim. Indeed, retrieval of that information from the Particulars of Claim suggests that the document had been studied with some care. The statement on this page of the Website, “They stole my house and Bankrupted me”, merely reinforces this conclusion [14].

[106]On the basis of that evidence, I am sure that, by around 15 August 2017, the Defendant had received and read the Particulars of Claim. I am also satisfied from this that he(1) must have also received the other documents served with the Particulars of Claim: the Amended Claim Form, the Response Pack and the Order of Master McCloud dated 31 July 2017; and

(2) had sufficient control of the Website to post the information relating to the PR Consultants used by the Claimant. The Defendant’s claim that he had not received these documents and that he was not in control of the Website (at least to the extent posting the material identified) I am sure is untrue and known by him to be untrue.

[107]The Defendant was then asked questions about his letter of 23 August 2017, in which he informed the Claimant’s solicitors that he had instructed solicitors to investigate legal action against the Claimant [15]. In the witness box, the Defendant pre-emptively began a long explanation of his dealings with a person called John Goddard of the Banking Complaints Bureau. He said that he had been dealing with Mr Goddard “for years”, that they had a “rather unorthodox” relationship, and that Mr Goddard had badly let him down. The Defendant claimed that Mr Goddard had done things of which the Defendant was unaware. This led him to claim that he had not written the letter of 23 August 2017 and he thought Mr Goddard might have done. He confirmed that he had not instructed solicitors, as had been claimed in the first paragraph. He stated that he did not know the email address of the people who ran the Website as stated in the final paragraph.

[108]I am not sure why the Defendant advanced this implausible account to explain the letter of 23 August 2017. One explanation is that, having been presented with the damning evidence of the LBA and information from the Particulars of Claim appearing on the Website, he was anxious to start distancing himself from documents about which he was asked questions. Whatever the motivation, the document speaks for itself. The most important part of the letter, however, is the first sentence of the final paragraph:

“In the meantime, I advise you that the web site that you write to me separately about is not controlled or run by me…”

On the Defendant’s account he knew nothing about the LBA, any communication from Irwin Mitchell, or the service of the Amended Claim Form and Particulars of Claim. But, if that is right, to what was he referring when he mentioned Irwin Mitchell writing to him about the Website? Even if it were assumed, on the Defendant’s evidence, that Mr Goddard had sent the letter entirely off his own bat (and without reference to the Defendant), from where would Mr Goddard have got the information about Irwin Mitchell writing about the Website if it was not from the Defendant?

[109]I am satisfied that the letter of 23 August 2017 was sent by the Defendant. The claim that it was sent independently by Mr Goddard is not credible. No evidence has been produced to substantiate this claim and, indeed, it was a statement made for the first time in the witness box. It also contradicts a statement made in a ‘Scott Schedule’ the Defendant provided setting out his evidence in response to the Fourth Affidavit of Ms Yates in which the Defendant appears clearly to accept that he sent the letter of 23 August 2017 and says nothing about Mr Goddard. This is an instance of the Defendant making up his evidence as he went along. I am satisfied that, by the end of August 2017, the Defendant(1) was staying at 61 Purwell Lane, or at least it was an address at which he was confident that he could receive post; and

(2) had received communications from Irwin Mitchell about the Website, demonstrating that he had, since 13 April 2017, received emails sent to him and/or the letters sent in the post or left at 61 Purwell Lane.

[110]As a result of the above conclusions, I also find that, by the end of August 2017, the Defendant had all the necessary information about, knowledge of and documents relating to the claim brought against him by the Claimant. His decision not to file an Acknowledgement of Service was a deliberate one, not an oversight or a mistake. So, when judgment in default was granted for the Claimant was granted at the hearing on 7 November 2017, it was a regular judgment. The Defendant had been served but he chose not to respond to the claim or turn up at the hearing on 7 November 2017. Those choices were all made deliberately.

[111]I should deal here with the health issues that were raised by the Defendant in his evidence at the hearing. After the lunch break, the Defendant continued giving his evidence and he asked whether he could make something clear. He then told me that he had been very ill in May 2017, he had undergone a couple of operations, had been admitted to hospital 2-3 times and had developed sepsis. Ms Addy asked him for details of when, and for how long, he had been in hospital. The Defendant stated that he could not remember, he thought while he was recovering he had been in hospital maybe for a week at a time. When he was convalescing between hospital stays he said that he was staying with his wife at 64 Abbotts Road. He could not remember how long he had stayed there but it was “quite a while”. Ms Addy put it to him that the Defendant had not included this important information in any of his written evidence. The Defendant was unable to give a satisfactory answer for why he had not. I would note, also, that the suggestion that he had stayed with his wife for “quite a while” is at odds with Mrs Jackson’s witness statement in which she said the Defendant stayed with her “for the odd night or two” [35]. One imagines that accommodating the Defendant whilst he recovered from intermittent stays in hospital and being treated for sepsis, is not something that Mrs Jackson is likely to have forgotten when she gave an account of the periods when the Defendant was staying at her home.

[112]In his Fifth Affidavit, the Defendant states that he was admitted to hospital for the following periods (none of which is evidenced by any documentation): i) 10 – 21 February 2017; ii) 23 February 2017 – 1 March 2017; iii) 23 – 29 March 2017; iv) 1 – 8 April 2017; v) 11 – 14 April 2017; and vi) 12 – 14 May 2017. He states that he did not produce this evidence earlier “as I did not consider that it was relevant and/or it slipped my mind and I did not fully understand what was required of me by Judge Warby’s order of 4th May 2018”.

[113]I do not accept this. Leaving aside the contradiction introduced by the “and/or” in that sentence, the Defendant cannot have been in any doubt about what he was required to do. Warby J had told him, in terms, that he should provide a “detailed account of where he lived [and] when” [54]. The point was reiterated in my order of 4 July 2018 [67(ii)]. What is more relevant, however, is that only the last spell in hospital post-dated the first contact from the Claimant regarding the claim, on 15 April 2017.

[114]Attached to the Fifth Affidavit (together with a further copy of the transcript of HHJ Gosnell’s remarks [6]) are various letters relating to both out-patient an in-patient treatment sent to the Defendant’s GP in the period from 10 March 2017 to 23 November 2017. Beyond what the Defendant stated in Court, I will not set out detailed medical information in this judgment, but I have read the documents and, broadly, they confirm that the Defendant was treated for early sepsis at the end of March 2017, with a confirmed diagnosis following admission in early April. A letter dated 8 May 2017 stated that the Defendant “has been quite unwell over the last few weeks with left flank pain and recurrent sepsis.” The in-patient treatment in May was to remove a stent. The Defendant had further tests and scans later in 2017.

[115]On the basis of this evidence, I am satisfied that the Defendant’s admissions to hospital and his medical conditions during this period have no bearing on the findings I have made as to his knowledge of the LBA and the proceedings and his postings on the Website. Before she received the Fifth Affidavit, Ms Addy submitted that the information that the Defendant suddenly disclosed about his hospitalisation in May 2017 should not be accepted. It was rather surprising that the Defendant had not mentioned this information in his written evidence. The documentation he has now provided shows that his oral evidence was essentially truthful albeit somewhat adrift in terms of dates. I shall treat that as a simple mix-up. But, as I say, the evidence has no bearing on the issues I have to decide because(a) the events took place almost entirely before the events relating to this claim began;

(b) whatever his state of health, it is clear from the findings above that the Defendant had been receiving documents relating to the claim.

Judgment in Default to the Committal Application of 9 March 2018

[116]By the time that judgment in default was granted, the Defendant had clearly made a conscious assessment that his interests were best served by ignoring the proceedings. As I will explain below, he then began a concerted effort to avoid service of documents relating to the claim. In colloquial language, he was determined to, and did, give the Claimant the complete ‘run-around’.

[117]I reach the conclusion below [120]-[122] that the Defendant was receiving emails throughout this claim. The claim that they were going into a “spam” folder is dishonest invention advanced as the reason why the Defendant did not receive any of the emails that were sent to him by the Claimant’s solicitors.

[118]In the period following Judgment in Default being granted, the Defendant stopped posting material relating to the claim on the Website. That may be a decision born of a recognition that by so doing, he was demonstrating that he had received the material. But there continued to be activity on the Website that shows that he continued to receive the emails sent to him by the Claimant’s solicitors, that he was reading them and, to an extent, acting upon them. i) The injunction order (and the judgment of 9 November 2017) were sent to the Defendant by email and post to 61 Purwell Lane on 10 November 2017 [24]. On 15 November 2017, Mr Evelyn left hardcopies of the same documents with Ms Jackson at 61 Purwell Lane [25]. Ms Jackson telephoned Irwin Mitchell and told them that she had thrown the documents away. In her witness statement she said that all correspondence addressed to her father had been “deposited at the roadside… or otherwise disposed of” [60(ii)]. ii) Nevertheless, at some point in the week following the 10 November 2017 the Website was configured to require a password for access [27]. In my judgment, that is not a coincidence. It suggests that the Defendant was starting to appreciate the risks to him (made clear in the communications he had received and the penal notice on the injunction) from continuing to publish the material on the Website in breach of the injunction. This conclusion is strengthened by the evidence that, between 17 November and 7 December 2017 the Defendant appeared to be acting on communications sent by the Claimant’s solicitors by (it seemed at the time) removing the parts of the Website that had been identified as being in breach of the injunction (see [28]-[30]). It is not credible that the password protection and the apparent removal of precisely the parts of the Website that were identified by the Claimant’s solicitors in emails to the Defendant are coincidences.

[119]To an extent, the evidence of the process servers does not have any real bearing on my conclusions as to the Defendant’s knowledge of the proceedings. I am quite satisfied that he has been receiving emails throughout. But their evidence is entirely consistent with, and supports, the conclusion that the Defendant was evading service. It appears that, by doing so, he was attempting to preserve precisely the argument he has now advanced: that he knew nothing about the proceedings. It is not credible that neither Ms nor Mrs Jackson would not have told the Defendant that process servers were trying to serve documents on him. They are both silent about that point in their witness statements. It does not, in fact, matter because I am satisfied that he knew (perhaps they did too) all about the proceedings and did not need to be told by them. Given the history of the litigation between them, I have no doubt that, if the Defendant had learned from either of them that the Claimant was seeking to serve him with documents, he would have been anxious to know what they were. For proof of that, one needs only to note that his reaction, when he was first contacted about the claim, was immediately to post full details – and later the entire LBA – on the Website. The Defendant’s case, it is to be remembered, is that, at the time process servers were trying to serve him, he knew nothing at all about the proceedings.

Service of the Order of 2 May 2018 to the hearing on 4 May 2018

[120]It is convenient here, at this stage, to state my conclusions on the evidence about the Defendant’s receipt of emails. The evidence I have set out above about demonstrates that the Claimant received the LBA by email. It was not sent by any other method. And, contrary to the Defendant’s claim that emails from Irwin Mitchell ended up in his “spam” folder, this one (at least) did not.

[121]Stepping back, the unreality of the Defendant’s case is clear. He had one email address. He had used it throughout the earlier litigation with the Claimant. There were no problems with his receiving emails during this period. On the Defendant’s case, suddenly, the emails relating to this claim started to go into his “spam” folder (thereafter to be deleted automatically). This is not true, at least in relation to the LBA, but it is the most remarkable stroke of luck that, on the Defendant’s case, the email he happens to find in his “spam” folder is one of the emails of 1/2 May 2018 [45]-[46]: the emails telling him that Court had found him in contempt and, later that week, would decide upon appropriate sanction. Since 1 May 2018, the Defendant has had, he told me, “no difficulty” receiving emails from Irwin Mitchell, despite accepting in his evidence that he has made no adjustment to the settings of the account or the configuration of the “spam” filter.

[122]The truth, however, is that it was not a stroke of luck that the Defendant found an email about the proceedings in the “spam” filter. The Defendant had known all along what was going on in the proceedings. He received all emails that were sent to him. What changed on 1 May 2018 was that the ‘game’ of ignoring the proceedings suddenly took a rather serious turn; the Defendant recognised he was facing potential imprisonment. The disengagement stopped, and the dissembling began.

[123]It is impossible to be clear about which email on 1-2 May the Defendant finally found in the “spam” folder because he has chosen not to produce a single email in his evidence. Indeed, his evidence about how he learned about the proceedings, what emails he received and when, is very unsatisfactory and in places contradictory. It cannot be relied upon. i) In the 3 May Statement, the Defendant said: “It is only this week that I have found communications [plural] from Emma Yates of Irwin Mitchell… in my SPAM box… Since discovering Miss Yates emails [plural]…” [49]. ii) When cross-examined about this, the Defendant stated that he found only one email. He said he could not remember whether he had found any other emails from the Claimant’s solicitors in the “spam” folder. Then, attempting to distance himself from the document he said that he had not typed his witness statement, just “spoke it”, and that he had not scrutinised it. He concluded by saying that he could not remember how many emails he had found from the Claimant’s solicitors. iii) At the hearing before Warby J on 4 May 2018, he told the judge [53]: a) that he had heard “rumours” that the Claimant was applying for judgment against him and he thought he had seen an article on the Website about a “defamation process”, “back last year”; and b) that he had first heard about the threat that he might be sent to prison for contempt, “a couple of days ago” when “somebody within the Pirtek Action Group informed [him] that that was the case” and he “subsequently pursued the emails [plural] that were relating to Irwin Mitchell”. iv) In his 23 May 2018 statement [57], the Defendant stated that he “found an email [singular] from the Claimant’s solicitors in [his] spam/junk” folder. v) In his Third Affidavit, the Defendant stated that he had received an email (singular) from Emma Yates on 2 May 2018 [69].

[124]The Defendant’s immediate response to what, on his case, the revelation of the existence of the proceedings also merits scrutiny. It is not the response of someone who had only just found out about the existence of the proceedings. i) Following his receipt of the email, he did not contact Irwin Mitchell at all, whether to seek further information about the proceedings or to tell them that he was planning to turn up at the hearing on 4 May 2018. He only provided a copy of his 3 May Statement to the Claimant at the hearing. ii) At the hearing on 4 May 2018, the Defendant was given a hearing bundle. It might be thought that a person who had just found out that a Court case against him had been proceeding through the Court for nearly 9 months might be very concerned to learn about what had happened and what the proceeding were about. Ms Addy cross-examined the Defendant on something he said in a witness statement in support of the First Application Notice: that he had not received documents and so was “unaware of the contents and or allegations to which I am ordered to respond”. She put it to him that he had been given copies of the hearing bundle. The Defendant’s initial response was that he was “sickened of dealing with these people”. Pressed on whether he had read the hearing bundle, he said “no, I’ve not really looked through it… it is too diabolical for words”. That would be an extraordinary answer from someone who genuinely knew nothing about the proceedings. For a person who had been playing a deliberate game of trying to keep out of the way the claim, the answer is entirely consistent. The truth is that the Defendant did not need to look through a court bundle to familiarise himself with proceedings; he knew all about them. iii) The barrage of Application Notices that followed – many taking points entirely without merit – was a tactic designed to make it appear that the Defendant had been ‘shocked’ to discover the existence of the proceedings and that in some way was being ‘wronged’ (again) by the Claimant. If the Defendant, genuinely, thought that he lacked documents from or information about the proceedings, the easiest of options was simply to ask the Claimant’s solicitors. He made no request to them.

[125]Finally, there is the inadequacy of his evidence, both written and oral. The Defendant has made no genuine attempt to comply with the Court’s direction that his evidence needed to concentrate on matters relating to why he had not received any of the documents relating to the case. On the contrary, his evidence has been a study in obfuscation, with the provision of little or no evidence that bears on these issues. Given my findings about his receipt of emails it does not have the relevance that it might have done, but even now, it is still entirely unclear at which addresses the Defendant says he was living from May 2017 and for what periods. That suits the Defendant, of course, because it enables him, in answer to any question about whether he received a particular document, to deny that he was living at the relevant address at the time. The whole picture is a deliberate miasma.

Conclusion

[126]It was for the Defendant to satisfy me, on the balance of probabilities, that the Court should re-hear the Default Judgment and Committal Applications. Applying the principles I have set out above [75]-[94], in relation to the former, the dominant feature is whether the Defendant has a defence on the merits to the claim, weighed against his explanation for how judgment in default came to be entered against him [89]. In relation to the latter, the focus is upon whether the Defendant chose deliberately not to attend the hearing of the application, but the Court must not ignore the issue of whether he appears to have a defence [94].

[127]The defence advanced by the Defendant to the original claim is simple: he is not the person responsible for the postings complained of on the Website. No other substantive defence is advanced. That is also his defence to the alleged breaches of the order, so the issue is the same (albeit they relate to different periods).

[128]The evidential burden on this application is on the Defendant. He has not satisfied me on the balance of probabilities: i) that he has a good defence on the merits to the Claimant’s claim; ii) that he has a good explanation for how judgment in default came to be entered against him; iii) that he has any defence to the to the Committal Application; or iv) that he has a good explanation for why he did not attend the hearing of the Committal Application. In relation to findings (i) and (iii), in other words, even if the Court were to re-hear the relevant Application, the result would be no different.

[129]On the contrary, for the reasons I have set out in this judgment, I am sure (to the criminal standard): i) that the Defendant has known about these proceedings from the outset and has made a deliberate decision not to engage with them; ii) the Defendant made a deliberate decision not to attend the hearings on 7 November 2017 and 30 April 2018; that decision was not taken for the sort of misguided reasons in Shocked (see [85]) but in an attempt to frustrate the Court’s process and Claimant’s efforts to hold him to account; and iii) that he was the person responsible for publishing the material on the Website that Warby J found was in breach of the order of 9 November 2017.

[130]The Re-Hearing and the Fourth Applications will be dismissed.

Other Outstanding Applications

[131]I have not heard submissions from the Defendant about what should happen to the Second, Third, Sixth, Seventh, Eighth and Ninth Applications but, subject to any points he wishes to make, my current view is that they should be dealt with as follows: i) the Second Application Notice should be dismissed: the Defendant’s failure to set aside the judgment in default order of 9 November 2017 means that the Court has determined that he was the publisher, author and/or editor of the Website. Consequently s.10 Defamation 2013 has no relevance to this claim. ii) the Third Application Notice should be dismissed: there is no point in setting aside an historic order allowing service by alternative means. iii) the Sixth and Seventh Application Notices should be dismissed as totally without merit: the Sixth Application Notice served no real purpose that was not already covered by the existing Re-Hearing Application, and the Seventh Application Notice is vexatious in refusing to accept that the Court does not “strike out” correspondence; iv) the Eighth Application Notice essentially sought the same relief as had been sought in the Second Application Notice and should be dismissed for the same reason. Issuing Application Notices seeking the same relief is vexatious and this application should be dismissed as totally without merit; v) the Ninth Application Notice was misconceived – there had been no trial – but insofar as it sought to set aside orders made against him in the proceedings, this sought relief that was already going to be considered by the Court when determining the Re-Hearing and Fourth Applications. This application was totally without merit.

[132]If I do decide to dismiss any of the above Applications and find any of them to have been totally without merit, then pursuant to CPR 23.12(b) I am required to consider whether it is appropriate to make a civil restraint order. I will hear submissions on this issue in light of my final decision as to the fate of the Application Notices identified in the paragraph above.

Sanction for Contempt

[133]The final matter I shall have to deal with is the sanction to be imposed on the Defendant for his breaches of the Order of 9 November 2017. I will hear both parties on that issue.

order

see CPR 81.28(6) and ICBC Standard Bank plc -v- Erdenet Mining Corporation LLC

[2017] EWHC 3135 (QB)

[53].