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November 25, 2019
The claimant, Jonathan Fox, a musician, singer and songwriter, issued proceedings against Hannah Wiggins and five other defendants for defamation and harassment, following online accusations posted by them of sexual, physical and emotional abuse by Mr Fox. Three of the women, including the sixth defendant, were his ex-partners.
The sixth defendant, Katherine Lawrence, failed to file a defence within the time permitted and Mr Fox obtained judgment in default against her. The other defendants filed defences asserting that the allegations were true and had been published in the public interest. Ms Lawrence applied to the court for a declaration that she lacked capacity and, in the alternative, to have the judgment in default set aside.
Ms Lawrence failed to establish that she lacked capacity. As for the set aside application, Mr Justice Knowles noted that the discretionary power to set aside is unconditional and its purpose is to avoid injustice. The major consideration is whether the defendant has shown a real prospect of successfully defending the claim or some other good reason why they should be allowed to defend the claim. The court’s discretionary power should be exercised to further the overriding objective, not to punish a party for incompetence. Nevertheless, the power to set aside is not to be exercised lightly, since its effect is to deprive the claimant of a regular judgment that s/he has validly obtained.
Knowles J found that Ms Lawrence had not acted promptly in applying to have the judgment set aside as required by CPR r 13.3(2). Further, on the material before him, he could not conclude that Ms Lawrence had a real prospect of successfully defending the claim. She had not adduced any evidence that the allegations were true, nor had she provided a draft defence such as to give Mr Fox the opportunity of knowing what her defence might be, although she had indicated it would be along the same lines as the defences of the other defendants.
However, Knowles J considered that Ms Lawrence had established, pursuant to CPR r 13.3(b), that she had some other good reason why the judgment in default should be set aside.
Knowles J noted that in Berezovsky v Russian Television and Radio  EWHC 1733, it was held that in a defamation claim involving serious allegations it is in the interests of both sides that a proposed plea of justification should be properly addressed. That is because the primary object of most libel actions is to achieve vindication of reputation, and if a claimant obtains relief purely on judgment in default, it would be easy for those ill disposed towards him/her to undermine the effectiveness of that vindication.
Knowles J said that he could “ascertain” that Ms Lawrence’s defence would include a plea of truth under s 2 of the Defamation Act 2013, meaning that the principle in Berezovsky was engaged. In Knowles J’s view, allegations of such seriousness as were involved in this case cannot be allowed to go by default. Although Ms Lawrence did not lack capacity, at the relevant time she did not have legal representation and she certainly suffered from a number of serious medical issues. Taken together, Knowles J was satisfied that the nature of the claim and the allegations involved, and the nature of the suggested defence, were such as to satisfy the test in CPR r 13.3(b).
In reaching this conclusion Knowles J attached “great weight” to the “very important point” that Mr Fox accused Ms Lawrence of (in effect) being part of a conspiracy with the other defendants to have “engaged in a deliberate and coordinated course of conduct targeting [Mr Fox]”, and to have “engaged in a persistent campaign of harassment against him …”.
Knowles J said that it would be “unsatisfactory” if the other defendants were to successfully defend the claim, whilst the judgment in default against Ms Lawrence remained.
Knowles J referred to the three-stage test in Denton v TH White  EWCA Civ 906: (i) the identification and assessment of the seriousness or significance of the failure to comply; (ii) the reasons why the failure or default had occurred; and (iii) all the circumstances of the case.
Knowles J found that the breaches here were both serious and significant, as Ms Lawrence “well understood, or should have done”, what her obligations were about filing a defence. Further, this was not a case where it was justified to give leeway to a litigant in person “at the margins”, nor was it a case where it was justified to grant a special indulgence to a litigant in person because a rule is hard to find or difficult to understand or ambiguous, as set out in EDF Energy Customers Ltd v Re-Energised Ltd  EWHC 652 (Ch).
However, considering all the circumstances of the case, Knowles J said that the “other good reason” factor in CPR r 13.3(b) required him to grant relief. Given his findings regarding Mr Fox’s claim of conspiracy, the seriousness of the case, and the findings regarding vindication, Knowles J held that the judgment in default should be set aside and that Ms Lawrence should be permitted to file a defence. (Jonathan Fox v Hannah Wiggins  EWCH 2713 (QB) (16 October 2019) — to read the judgment in full, click here).