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Judge Finds Good Reason to Address Pre-Action Failings
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By Martin Wood *

 

The claim related to an article published in Norwegian in 2006 and was served ‘out of the blue’ on a Norwegian defendant in Norway on August 25 last year. The defendant returned the acknowledgment of service by registered post on 7 September. She did not keep a copy but provided the court with evidence of when the acknowledgment was posted and submitted that it was filed within the prescribed time limit.

 

Her acknowledgment indicated, unusually, that she would both defend the claim – and contest jurisdiction. However, the acknowledgment was deemed to be defective as it failed to satisfy the (then) requirements of the Civil Procedure Rules (CPR). An acknowledgment must include the defendant’s address for service under CPR 10.5. In accordance with CPR 6.23 at the time, that address had to be within the United Kingdom (UK). The defendant did not have a UK address. It is unclear whether an address in Norway was given instead.

 

The defendant’s Norwegian lawyer wrote to the High Court soon after the acknowledgment to set out the grounds for defending the claim and contesting jurisdiction. The High Court sent a written request for a UK address. The lawyer responded saying there was no UK address and continued to contest jurisdiction.

 

Judgment in default of acknowledgment of service was obtained from Master Leslie in November 2010. An application to set it aside was made in February on the basis that the default was understandable and excusable in the circumstances and there was a real prospect of defending the claim.

 

In her judgment, Sharp J [El Diwany v Hansen & Amor [2011] EWHC 2077 (29 July 2011) at para 33] said she did not need to consider whether the Court must set aside the default judgment. This obligation applies, under CPR 13.2, when a judgment has been wrongly entered. That would be the case when, for example, a defendant had filed an acknowledgement of service in accordance with the rules.

 

Sharp J was satisfied this was a case where the court’s discretionary powers should be applied. Under CPR 13.3(1), the court may use its discretion if (a) the defendant has a real prospect of success of defending the claim or (b) it appears to the court there is some other good reason why the judgment should be set aside or varied.

 

Both provisos were found to be satisfied, the ‘good reason’ being that the claimant made ‘no attempt’ to comply with the Pre-action Protocol for defamation claims set out in the CPR. Account was also taken that that defendant “did not ignore the proceedings but took immediate steps to try to defend the proceedings, both by returning the Acknowledgement of Service, as I accept on the evidence she did, and through her Norwegian lawyers shortly thereafter. 

 

“If there was a default therefore, in my view it was an excusable one,” the judge concluded.

 

The pre-action protocol for defamation sets out the steps to be taken to provide notification of a claim. The letter of claim, to be sent at the earliest reasonable opportunity, should identify the words under complaint, where they were published (or broadcast), the date of such publication (if known), and, where possible, enclose a copy of the publication. The letter needs to explain why the words under complaint are inaccurate or unsupportable as comment. It should set out the remedies being sought and, where relevant, any matters which identify the claimant or interpret the words under complaint or relate to a special damages claim.

 

Sharp J’s judgment makes clear the potential adverse consequences of issuing proceedings without making any effort to comply with the pre-action protocol. Impatient claimants beware. However, most defendants based on the continent without a UK address are now unlikely to find themselves in the position of the Norwegian defendant. CPR 6.23 was amended in April to enable a defendant to provide an address for service within the European Economic Area.

 

* RPC (Reynolds Porter Chamberlain LLP)

Monday, December 05, 2011
Litigation (Civil, Business and Commercial)

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