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Seeking default judgment on defamation claims

It is not uncommon for defendants to fail to respond to a claim against them.  Indeed, around 90% of the 1.5 million claims issued in England and Wales each year are undefended.    When that happens, the usual course for a claimant is to request or apply for default judgment, which in most cases is entered without much of a to do.

Where a claim is made for a specified amount of money over a debt or breach of contract and little or no judicial discretion is required, the default judgment process is very simple – a claimant will have made out the damages claim for a specific sum of money on the Claim Form or in the Particulars of Claim, and judgment will almost always be entered in that sum.  The claimant simply needs to complete the ‘request for judgment’ section of the notice of issue (which in some cases can be done online).  The process is more complicated in claims for general damages, which are typically damages for injuries (including to feelings), and/or pain, suffering, loss of amenity or loss of reputation, and are typically awarded in a sum the Court thinks is appropriate for the level of injury sustained.

In Edward v Okeke & Others [2023] EWHC 2932 (KB), Mr Justice Johnson considered the complications which can arise when seeking default judgment in claims for general damages if the correct procedure is not followed.

The underlying proceedings

Mr Edward issued four claims in very close proximity to one another between 29 June and 25 July 2022.  They were:–

  1. Against Mr Okeke (the First Respondent) for (i) professional negligence and (ii) breach of contract, said to have caused special damages in fixed sums (including the repayment of legal fees and travel expenses) and general damages for psychiatric injury.
  2. Against Mr Olisa (the Second Respondent) for (i) libel and slander further to an allegation that the Claimant had kidnapped and tried to blackmail and extort Mr Olisa, (ii) breach of confidence, and (iii) misuse of private information.
  3. Against Mr Mbanalu (the Third Respondent) and Mr Akosa (the Fourth Respondent) for libel over an allegedly false report of the Claimant’s criminality to the police in Nigeria.
  4. Against Mr Emodi (the Fifth Respondent) for unspecified unjustified threats and protection from harassment.

Each claim’s claim form put the sum claimed at £100,000, but three claims also included Schedules of Loss which set out different elements of damage and loss which did not total £100,000.

Mr Edward was given permission to serve the claims on the Respondents in Nigeria, notwithstanding Master Dagnall’s “considerable concerns … as to whether this country was the appropriate place for the litigation to take place”.  Following service, and with no acknowledgments of service or defences being filed, Mr Edward requested default judgment in the sum of £100,000 for each case.  The requests were first put before a court officer, who referred them on to Master Dagnall.  Master Dagnall directed that a hearing take place on notice to the Respondents, at which he would decide whether to enter judgment.  Mr Edwards was informed of this and objected to this course of action, arguing that he was entitled to judgment without a hearing.  In response to this, Master Dagnall directed an earlier hearing should take place without notice to the Respondents to allow Mr Edwards the opportunity to persuade him [Master Dagnall] to set aside or vary his order for a hearing on notice.

Mr Edwards was partially successful.  Master Dagnall did indeed vary his previous order, deciding that the rules of a ‘request’ for default judgment meant that he did not have jurisdiction to order a hearing on notice to the defendants: as such, he entered judgment for Mr Edwards.  He did so, however, in a sum ‘to be assessed’ in each case – not for the sum claimed by Mr Edwards.  Master Dagnall directed that the sum would be assessed at a remedies hearing.  Master Dagnall had decided that the sums were not ‘specified’, and so a remedies hearing was required.  This had the effect of causing a hearing on notice to the defendants in any event, but after judgment had been formally entered (so the defendants would not be able to argue against the entering of judgment).

Mr Edwards appealed against that decision – with the permission of Master Dagnall – arguing that he was entitled to judgment in a specified sum.  It is that appeal on which Johnson J has given judgment.

The appeal

Johnson J went a long way back when tracing the roots of default judgment and how specified sums as against unspecified sums are to be treated.  This analysis went back to the Judicature Act 1873, which made provision for two types of default judgment.  The first for a debt or liquidated sum, for which it had a specific framework, and the second for other types of claims (i.e. unliquidated claims), for which it introduced a rule that, “such judgment shall be given as upon the statement of claim the court shall consider the plaintiff to be entitled to."

Johnson J went on to equate (as Master Dagnall had at first instance) ‘liquidated sums’ with ‘specified amounts’ and ‘unliquidated sums’ with ‘unspecified amounts’, which he identified as the key issue to be determined.  Mr Edwards appeared as a litigant in person and had not actually addressed this in his appeal – his grounds of appeal having flirted with the issue but not addressed it head on.

Johnson J identified various reasons why the sums pleaded by Mr Edward were unspecified amounts.  They included that:-

  1. The claim against Mr Okeke was a claim for personal injury, which is a type of claim which is not (at least not ordinarily) a claim for a specified amount of money. It was incumbent on Mr Edwards to make it clear that his claim was for a specified sum, which his Claim Form and the Details of Claim section did not do.
  2. The other three claims included schedules of loss attributing various values to different heads of loss, but that did not suggest that damages were sought in a specified amount either – it was consistent with a claimant setting out his claimed losses and seeking the Court to adjudicate on it.
  3. The sums in the schedules of loss were inconsistent in total amount with the values attributed to the claims on the claim form – for example, the third claim’s “total loss” was shown in the schedule as £150,000, despite the value on the Claim Form being £100,000.

This was as far as Johnson J had to go to dismiss the appeals.  However, some interesting questions of law and procedure were addressed in the Grounds of Appeal, which Johnson J considered briefly.

Can a claimant claim a specified amount of money in respect of general damages?

This question has now received two different answers at first instance.  In the underlying claim, Master Dagnall had concluded that the old rules (referring to liquidated and unliquidated damages) were maintained in more modern language by the Civil Procedure Rules in reference to specified and unspecified sums, and as such, default judgment ought to be for a sum to be assessed.  In contrast, Master Matthews had decided in Merito Financial Services Limited v David Yelloly [2016] EWHC 2067 (Ch), that if the Civil Procedure Rules Committee had intended to maintain the distinction between liquidated and unliquidated damages, it would have said so.  Paragraph 36 of his judgment suggested that specified sums for pain, suffering, and loss of amenity could be claimed as “a specified amount of money”, albeit that it would be unusual for a claimant in a personal injury case to be able to plead such a position at the outset.

Johnson J identified that “two judges who are each highly experienced in civil procedure have reached opposite conclusions”, but that notwithstanding, “any theoretical uncertainty as to the precise contours of specified and unspecified claims does not appear to have caused practical difficulty”.  Without the benefit of an adversarial argument (in particular from represented parties), and without the need to determine the question to deal with the appeal, Johnson J decided that the “better course is not to determine the point on this appeal”.

Was Master Dagnall prohibited from listing a hearing on notice to the defendants?

Johnson J clearly sympathises with Master Dagnall’s difficult position on this question.  He explains in his judgment that it is not necessary on the appeal to determine whether Master Dagnall was right to conclude that he could not list a hearing, because even if he was wrong, he was clearly right to conclude that Mr Edwards had not made a claim for a specified sum, and so a remedies hearing was necessary.

Unlike the previous question, however, Johnson J decided to answer it even though it was not necessary for the purposes of the appeal.  He explained that judges have a positive obligation to give effect to the Overriding Objective (that is dealing with cases justly and at proportionate cost), and that except where the CPR provides otherwise, judges are entitled to hold hearings.  Johnson J went on to explain that even though the default judgment provisions do not anticipate a hearing in claims for a specified sum, the rules to do not exclude the possibility of a hearing – as such, they do not “provide otherwise”, and Master Dagnall’s original order (that an on-notice hearing was required) was perfectly valid and proper and he was entitled to make it.

So how should one seek default judgment in defamation claims?

In theory, there are broadly-speaking four methods:-

  1. By applying for default judgment and asking for the application to be considered at a disposal hearing together with an assessment of damages and any application for an injunction.
  2. By requesting that the Court enter judgment on paper and then list the matter for a disposal hearing to consider the question of damages/injunctive relief.  Directions can be proposed regarding the service of evidence (limited to matters concerning quantum).
  3. By applying for default judgment and asking the court to summarily dispose of the matter pursuant to section 8 of the Defamation Act 1996 without a hearing.  
  4. Where the pleaded claim is limited to a specified amount of damages, to ask for judgment to be entered on paper in that sum.

We would normally recommend option (2), although the Court may refuse to enter default judgment on paper if it is not satisfied that the pleaded meaning is credible.  The extent to which the court is able to decline to enter default judgment on a pleaded case is an interesting question which is beyond the scope of this article.

Option (3) can save costs, which could be a key consideration if recovery is unlikely.  However, it should be noted that if an injunction is sought, (assuming the defendant does not consent), a hearing will always be required.  Additionally, as with any application for summary disposal under section 8, damages would be limited to £10,000.  This rather unconventional method was adopted and permitted in Charakida v Jackson [2019] EWHC 858 (QB). We are unaware of any claims having been disposed of in the same way since and it is unclear whether media law judges would routinely allow such matters to be dealt with on paper.  A disadvantage of this option is that without a public hearing it may be difficult to achieve the same level of vindication - albeit there is nothing to stop a claimant from publicising the outcome (and wider publicity may be less of an issue, or even undesirable, in small-scale publication cases).

Option (4), effectively the route Mr Edwards sought to take, is potentially permissible, but highly risky.  A claimant would be relying on the door left ajar in Merito, which Johnson J declined to either open or close in Edwards.  Our instinct is that media law judges might be reluctant to allow judgments to be entered for specified (and potentially arbitrary) amounts for reputational injury/injury to feelings determined by claimants.  However, if such an approach was permissible there would be considerable cost savings for a claimant as there would be no hearing, and no need for evidence or even an application notice.


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Articles are intended as an introduction to the topic and do not constitute legal advice.