Reference:  EWHC 647 (QB)
Court: High Court, QBD
Judge: Eady J
Date of judgment: 11 Mar 2014
Summary: Defamation - Setting aside - Claim form not served - Proceedings in limbo - Costs - Indemnity basis
Download: Download this judgment
Victoria Simon-Shore (Defendant)
Instructing Solicitors: Barlow Robbins for the Second Defendant, Harveys LLP for the Third Defendant
C, the member of a local parish and former solicitor, sued in libel over a post on a website published in July 2011. D3 was never served with the proceedings and only learned indirectly that there were proceedings outstanding against him when the Court informed him that the case had been transferred from the Chancery Division to the Queen’s Bench Division. C had also said in a Parish Council meeting that there were “civil and criminal proceedings” outstanding against D3 (the allegation about criminal proceedings was also untrue). D3 applied under CPR r.7.7 to require C to either serve the claim form or discontinue. C’s solicitors refused to make clear in their response that proceedings would be discontinued.
D3 therefore asked that proceedings against him should be formally set aside by the court and costs awarded.
Should the proceedings against D3 be formally set aside?
Should the court make an order for indemnity costs?
Setting aside the proceedings against D3 and awarding indemnity costs:
(1) Although D3 was never served with the claim form, there is a lacuna in the CPR which was considered by the Court of Appeal in Aktas v Adepta. The effect of issuing proceedings against a party who is not served within the prescribed four-month period is not that the claim automatically lapses, but rather that it remains “in limbo” and requires to be given a formal quietus – either by serving a notice of discontinuance or, if the relevant claimant fails to take this step, by an order of the court to “set aside”. It had thus been entirely reasonable for D3’s solicitors to call for clarity and to require the service of a notice of discontinuance.
(2) Costs should be ordered on the indemnity basis. D3 had to incur the expense of instructing solicitors to protect his interests when this should never have been necessary. There is no reason why he should be out of pocket. Moreover, C’s solicitors should not have allowed D3 to linger on in this state of uncertainty. Such conduct of the C and his solicitors “takes the case out of the norm”:
A warning to claimants that proceedings that are not served on a defendant remain “in limbo” until such time as a notice of discontinuance is filed, or the court formally sets the proceedings aside. Claimants should be careful not to lead the defendant to incur costs in the meantime and legal representatives should ensure that there is absolute clarity on the issue.