Wednesday, 24 August 2016

NEVER GIVE UP

A High Court decision in a libel case the other week demonstrates that while there is life, there is hope. It was alleged that the defendant had written and sent two letters which were defamatory of the claimant. He denied he was the author or sender. But the defendant failed to deal with correspondence from the claimant's solicitors (called Wright Hassall who the defendant came to unjustifiably accuse of unprovoked harassment!) and then to take essential steps in the proceedings which followed. His serious and significant default led to the claimant obtaining a judgment against him which, if it stood, would quite possibly have led to a five figure award of damages with a liability for the claimant's legal costs on top.

The defendant asked the court to set the judgment aside so that he could defend the case. To succeed, he had to show he had a real prospect of winning the case if the judgment went. However, failing to act promptly in making an application for a judgment to be set aside - three and a half months here - will more often than not be fatal to the application being granted even though the defendant might have won the case if the judgment was set aside. 

The High Court judge decided that the defendant did have a real prospect of successfully defending. But what about his delay? The judge bore in mind that the defendant had hoped the case would simply go away; he had no spare funds to spend on lawyers and litigation; and he is the sole carer of his invalid wife. There were also some unsatisfactory aspects to the handwriting expert report on which the claimant was relying and there was a special point relevant to defamation cases in which the primary object was to achieve vindication of the claimant's reputation. It is that if the claimant has secured a judgment through the defendant's default as here, those ill disposed towards the claimant may find it easier to dismiss the outcome and not accept it as a vindication.

So, by the narrowest of margins, the judge did set the judgment aside allowing the defendant to defend but the defendant must pay the claimant's legal costs which have been thrown away by his inertia.