Full case report

QRS v Beach (No. 3)

Reference [2014] EWHC 4189 (QB)
Court High Court (Queen's Bench Division)

Judge Warby J

Date of Judgment 11 Dec 2014


Summary

Harassment – injunction – default judgment – setting aside default judgment


Facts

C, a solicitor and partner in a firm, applied on his own behalf and on behalf of others who had a similar interest to his own, for an injunction in representative proceedings for harassment. D1 was a disgruntled former client and D2 was the operator of the website solicitorsfromhell.co.uk (“sfh.co.uk”), against whom judgment and had been entered and final orders made in Law Society v Kordowski [2011] EWHC 3185 (QB).

XYZ.net was the successor website to sfh.co.uk and proclaimed itself as such. There appeared on it and on other websites serious allegations of misconduct about C and others, in particular regarding their work on behalf of D2. The other websites were registered by D2 (“the Beach websites”). On 25 April 2012 the firm wrote to D2 complaining of wrongful use of its name in the domain of the Beach websites. D2 responded by email enclosing a letter from D1 to C’s firm rejecting the complaint, inviting the firm to sue for defamation and appointing D2 to act as his agent. D2 thereafter engaged in correspondence on behalf of D1.

On 28 March 2013 C’s firm sent D1 a pre-action letter complaining of the content of the Beach websites, complaining that the content was being published with D2’s assistance in breach of the Law Society injunction and in breach of copyright. Neither of the Ds replied.

On 30 July 2014 C’s solicitors sent by post and email to D1 and D2 detailed pre-action letters complaining that by publishing on XYZ.co.uk and the Beach websites, each had pursued a course of conduct amounting to harassment against C and others contrary to s.1(1) of the PHA 1997. The letters required removal of the content relating to C and others, delivery up of off-line data, undertakings not to harass, to cease publication and be bound by an injunction. A deadline of 5 August 2014 was set, but neither of the Ds replied.

C issued proceedings on 6 August 2014. D1 was sued in his personal capacity. D2 was sued in his personal capacity and in a representative capacity on behalf of all others who may be involved in the operation and publication of XYZ.net. The principal remedy sought was an injunction to restrain harassment of C and the protected parties. C issued an application notice seeking interim injunctions against both Ds at the same time.

The claim documentation and evidence was served at D1’s address on 6 August 2014, by handing it to a lady who answered the door. It was delivered at an address believed to be D2’s address on the same day. It was also served by email.

C’s injunction application came before Slade J on 13 August 2014 (QRS v Beach [2014] EWHC 3057 (QB)). D2 had not been properly served as the address to which documents were delivered was a former residential address. D1 had been duly served. Permission was given to amend the claim form and Particulars, and injunctions were granted against both Ds.

On 15 August 2014 D2 was served personally with claim documentation and copies of orders made by Slade J. D1 was served personally on 16 August. Both Ds were provided with copies of the documents by email on 18 August. D1 made no communication with C’s solicitors by email, but further websites were created.  On one of these a posting appeared which referred to the letter of claim dated 30 July 2014 and containing defiant statements about the claim together with pdfs of some of the material prepared for the 13 August hearing. D2 responded to service of proceedings with letter demanding that Slade J’s order be discharged or varied, and that the claim be set aside.

Neither D filed an acknowledgement of service. C decided to seek judgment in default and issued an application notice doing so, which included an application for a final injunction. Evidence was relied on, and served on both Ds together with the application notice by post and email. D1 made no formal response to being served but further websites were set up. D2 responded by email. On 15 September C’s solicitors wrote to and emailed D2 asking him if he intended to appear or be represented. He did not reply.

On 16 September 2014, before Stuart-Smith J, C applied for and obtained judgment in default and a permanent injunction against both Ds: QRS v Beach (No. 2) [2014] EWHC 3319 (QB). On 17 September the final order and re-amended Particulars of Claim for which Stuart-Smith J had given permission were personally served on D2.

On 9 October 2014 D2 issued an application notice seeking to set aside the judgment and final injunction against him, attaching a copy of his letter of 18 August 2014.

C submitted that, in addition to meeting the conditions specified in CPR 13.3, which sets out the principles to be applied on an application to set aside a default judgment under Part 12, D2 had to persuade the court to revoke the final injunction granted by Stuart-Smith J.


Issue

(1) Did D2 have to satisfy only the requirements of CPR 13.3 or was something more required?

(2) Should default judgment be set aside?


Held

(1) The submission that it was necessary for a party seeking to set aside a default judgment successfully to invoke CPR 3.1(7) if there was not merely a default judgment but also an order such as a final injunction was novel and was not accepted. There was no good reason for regarding the provisions of CPR 12 and 13 as anything other than a self-contained regime governing the procedure for the grant, variation or setting aside of judgment and all such orders consequent upon that judgment as the court had considered the claimant to be entitled to.

There was no distinction to be drawn between default judgments and orders. In the context of CPR 12 and 13 the term “judgment” should be read as including any order made by the court when it enters default judgment.

There was no need to look beyond CPR 13 for a power to set aside any orders made by the court under CPR 12 upon granting default judgment and it was not appropriate to import into the decision-making exercise under CPR 13 the principles developed in the context of r.3.1(7) for the revocation or variation of a previous order.

(2) There was a conflict of evidence as to whether XYZ.net operated as a mirror site for sfh.co.uk during the period when D2 was admittedly responsible for operating the latter site which could not be resolved on the application. C’s claim to have had nothing to do with XYZ.net since its transfer to a Mr Angel seemed highly improbable: his address was in Panama and there was no explanation of who he was.

There were striking similarities between XYZ.net and sfh.co.uk and it was an obvious possibility that “Mr Angel” was a pseudonym or front for D2 and his associates. Neither of the Ds denied the allegations of D2’s responsibility in the letter of claim. However, the Judge bore in mind that the allegation of D2’s responsibility involved the assertion that he had been acting in breach of the injunctions granted against him in the Law Society case. This was a serious allegation and, despite D2 having been found guilty of wrongdoing in the past, this had not extended to contempt by breach of an injunction. Although D2’s case was highly improbable, it was not fanciful to envisage its success. D2 had stated his position in a witness statement and the evidence against him was inferential. The Judge had not identified material which persuaded him that evidence of D2’s involvement with XYZ.net was so powerful that what he said in his witness statement should be disbelieved without the need for cross-examination.

The Judge reached a similar conclusion in respect of D2’s involvement in creating the Beach websites and publishing their content. The case against him was not so overwhelming as to compel rejection of what he said in his witness statement as unreal; while improbable, D2’s case as to lack of involvement was not apt for summary dismissal as having no real prospect of success.

As to the question of D2’s joint tortfeasorship in conducting correspondence on behalf of D1 and an alleged common design to perform acts that were harassing, this was not a case pleaded in the particulars of claim. Against the background of D2’s case that his role was similar to that of a solicitor and evidence that he ceased acting as D1’s agent in about August 2013, the issue of his liability as a joint tortfeasor was not suitable for summary resolution.

In the exercise of his discretion to set aside the default judgment and final injunction against D2, the Judge took six matters into account: firstly, the large costs liability potentially imposed by judgment; second, the fact that C’s default judgment application would have proceeded against D1 in any event; third, the setting aside of judgment against D2 would still leave C with the comfort of an injunction against D1; fourth the Law Society injunctions remained in force against D2; fifth, the delay in applying to set aside had not disrupted the litigation; and, sixth, the issues raised as to D2’s liability for the course of conduct concerned responsibility for publication and these were relatively confined.


Comment

The judgment contains a useful discussion of the interrelationship of default judgments and final orders. It emphasises the extent to which, in relation to CPR 12 and 13, the term “judgment” includes any order made by the court when entering default judgment, including, as here, a final injunction made along with such a judgment. CPR 13 provides a tailor made, self-contained regime for setting aside or varying default judgment into which other principles are not to be imported.


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Instructing Solicitors

Brett Wilson LLP for C