Should litigants in person get less leeway in libel cases?

The question of how much leeway a litigant-in-person should get when it comes to compliance with the Civil Procedure Rules ('CPR') and court orders is a long-argued and fraught one.  The concept of litigants-in-person being treated in the same way as those professionally represented has been eroded over time with concessions here and indulgences there.

Despite the Supreme Court having apparently answered the question in Barton v Wright Hassall LLP [2018] UKSC 12 (where it was held a litigant-in-person should not be treated differently to a legally-represented party), practitioners will tell you that the reality is often very different.  Litigation lawyers are frequently in the unenviable position of advising clients of the strict importance of deadlines, while telling them that they should agree to repeated extensions sought by an opponent litigant-in-person.  If you refuse an extension you risk your client incurring the cost of a hearing where the opponent is given another chance (your client is even potentially at risk of an adverse costs order).  Alternatively, you have to be braced for the possibility of seeking a series of orders that require your opponent to do what they are already required to do.

In Parks v Hall & Anr [2021] EWHC 2824 (QB) Sir Andrew Nicol recently addressed the question of quite how much indulgence litigants-in-person should be afforded in libel claim before a case is struck out.

Sir Andrew summarised the procedural history of this messy libel claim, before striking out both Defendants’ purported defences.   This showed the extent to which the defendants had already been indulged.

1. The Claim was issued on 30 September 2020. Initial defences were filed on 12 and 25 November 2020 by the Defendants (independently of one another).  These were considered by Master Dagnall to be deficient, and he gave them until 15 January 2021 to file and serve statements or schedules addressing the causes of action and the publications complained of.
2. Neither Defendant complied, and in February 2021 the Claimant applied for strike out of the purported defences. In March Master Dagnall set a new deadline for the Defendants, which was again ignored.
3. In June 2021 Master Dagnall considered the strike out application made in February 2021, but adjourned it to be heard by a High Court Judge of the Media & Communications List, to determine whether the publications bore the meanings contended by the Claimant, and whether they were defamatory at common law. He also set a new deadline of 23 July 2021 for the Defendants to file their ‘statements or schedules’ in an Unless Order (with an automatic strike out provision).
4. On 22 July 2021 the Second Defendant filed and served a single document, and on 23 July itself filed four further documents. The First Defendant filed nothing at all, but made requests or informal applications for extensions of time on 22 July, 23 August, 28 August, and 3 September (in each case seeking an extension until the next date, and ultimately seeking an extension to 8 September).
5. On 1 October 2021 (just over a year after the claim was issued), the Claimant applied for strike out once again. On 4 October 2021 the First Defendant cross-applied for relief from sanctions.

The Judge commented that Master Dagnall had “gone to considerable trouble to explain precisely what [the Defendants’] defences needed to include” and he is to be “commended for the pains he took” in that regard.  The Judge went on to decide that the Defendants had not in fact complied with the Master’s order, that the First Defendant’s requests or informal applications should be refused in any event (so the question of whether they were properly made was irrelevant), and that the First Defendant’s application for relief from sanctions should be refused.

The relief from sanctions decision

In refusing relief from sanctions, the Judge applied the three-stage test in Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906.

The Judge held that the breach was serious and significant – the breach was not of a generic rule or practice direction, but of an Unless order following two other orders to give the Defendants the opportunity to put their defences in order.  Significantly for media law practitioners, the Judge also relied on the premise that libel actions require particularly expeditious conduct.

The First Defendant submitted a witness statement that relied, amongst other things, on the complexity of defamation litigation to explain his default and repeated requests for extensions.  The Judge gave that argument short shrift – accepting as he did that defamation litigation is complicated, but pointing out that Master Dagnall had given the Defendants every opportunity, including going so far as explaining precisely what they needed to do and what their schedules should address.

Setting a precedent

In practical terms, this judgment is authority for the proposition that the “serious and significant” test in Denton may bite harder on defamation claims because time is of the essence when one is seeking to vindicate their reputation.  Another useful outcome is that the complexity of defamation claims generally should not be held up as a catch-all reason for repeated extensions of time, something all too often by defendants unwilling to nail their colours to the mast.

Practitioners will be able to point opponent litigant-in-person opponents to the judgment to warn them of the risk of strikeout.  They should be under no illusion that their failure (or inability) to obtain legal representation allows them to ride roughshod over the rules.