Those were the words of Mrs Justice Collins Rice in the libel case of Shah and Another v Ahmed and Others [2022] EWHC 1816 (QB), as she struck out the defence of the Defendants and gave the Claimants judgment on liability.
Shah and Another v Ahmed and Others [2022] EWHC 1816 (QB)
Case background
The Claimants were/are journalists and were the subject of two press releases, one in English and one in Urdu, to a Whatsapp group on 6 January 2019, which included an accusation that the Claimants’ conduct at a press conference the preceding day was ‘disorderly, abusive and violent’. The First Defendant accepted publishing the press releases but claims that he did so on behalf of the Second Defendant, the First Defendant’s legal practice. The Third Defendant was a client of the Second Defendant, who arranged and managed the press conference.
The matter was listed for trial on 4 July 2022 but before the trial could begin, the judge was asked to deal with two applications:
1. An application by the Claimants for strike out of the Defendants’ defence and for judgment to be entered in favour of the Claimants; and
2. An application by the Defendants for an adjournment of the trial.
It is fair to say that the Defendants had not engaged properly, or in part of the case, at all with the litigation process. Below is a summary of the Defendants’ failings. The Defendants:
- failed to respond to pre-action correspondence;
- filed a defence requiring the Claimants to prove their case but also pleading the statutory defences (in a defective way) of the truth, honest opinion and matters of public interest;
- failed to comply with an unless order requiring them to amend their defence to plead the statutory defences in a non-defective way and accordingly that aspect of their defence was struck out;
- failed to apply for relief from sanctions in respect of the strike out of the statutory defences, notwithstanding being given 2 opportunities to do so;
- failed to pay two previous costs orders made against them in respect of the Claimants’ applications seeking to progress matters, including seeking strike out of the statutory defences; and
- failed to attend/take part in a number of hearings listed by the Court.
Shortly before the trial, the Defendants applied for the trial to be adjourned, citing ‘health issues and case prejudice’ as the reason. The application (which failed to comply with a number of procedural requirements, such as statements of truth in witness statements) claimed that the First Defendant had lost capacity, that he was intending to represent the Second Defendant and that the Third Defendant was not represented by either the First/Second Defendants or their instructed law firm. Accompanying the Defendants application was an unsigned letter from a liaison doctor at Royal Blackburn Hospital, which read:
‘Mr Ajaz Ahmed (Dob 08/05/1971) presented at ED on 22/06/22 following an overdose of 14 x 200mg ibuprofen with intent to end his life. Social stressors highlighted – bereavements of brother (2020) and mum (2021), father diagnosed with Bowel cancer, and Ajaz inability to continue his practice as a solicitor due to his current mental health difficulties. Symptoms disclosed – low mood, suicidal thoughts, onset of visual and auditory hallucinations, change in behaviours including self-neglect, and ‘going missing’ for 10 days. I have reviewed him in AE on 27/06/22 and discharged him home with Home treatment support. He presented again to AE on 30/06/22 after taking another Overdose and I have reviewed him on 01/07/22 and advised him to attend Pendle house for review with HTT consultant at 11.30am.
If you have any concerns please do not hesitate to get back to me.’
The judge, having some sympathy for the Defendants given the content of the letter from the hospital, had to decide how to deal with the Defendants’ application. Mrs Justice Collins Rice confirmed:
“…The overall picture emerging, as best it can be discerned on the limited basis available, is that the First Defendant suffers from poor mental health on what appears to be an incipient or chronic basis, connected with life events over the past two years, and which had lately manifested itself in suicidal behaviours over the weeks leading up to the hearing. Beyond that, I did not consider that I had been provided with (a) sufficient explanation for the Defendants’ application having been made at the very last minute, when the First Defendant had apparently presented with acute symptoms some ten days before the application was made on the eve of trial, (b) clear and comprehensible medical evidence as to the impact of the First Defendant’s illness in relation to the litigation or (c) any information about the likely course of the First Defendant’s illness capable of providing a basis for vacating and relisting the hearing.
- I also bore in mind the extensive history of poor engagement by the Defendants with these proceedings, including the fact that the application for adjournment appears to have been their first engagement of any sort since the 1stNovember 2021 hearing eight months ago. I bore in mind the prospects of real unfairness to the Claimants if the hearing were to be vacated in its entirety in these circumstances. The relief the Claimants seek in defamation proceedings is vindication, and vindication delayed is vindication denied…”
The judge, in dismissing the Defendants’ application, also cited a concern that there was no indication as to when a trial could be relisted and confirmed that, given that the Claimants’ application was proceeding without the Defendants present, they could apply subsequently in accordance with CPR Part 39.3 to set aside her decision.
The judge then turned to the Claimants’ application, which was to strike out the remainder of the defence on the basis of a failure by the Defendants to comply with previous Court orders. The judge directed herself that she should consider the following points when determining the application:
‘i. identify and assess the seriousness and significance of the failure to comply;
- consider the reasons for default;
iii. evaluate all the circumstances of the case so as to deal with the application justly.’
In striking out the Defendants’ defence and giving judgment on liability to the Claimants, the judge found that:
- There had been ‘multiple and serious failures’ by the Defendants to comply with a Court order;
- There was no reason for the default tendered by the Defendants;
- That the issue of the natural and ordinary meaning of the words complained of was not an issue subject to evidential proof, that the Defendants had failed to tender an alternate meaning to that advanced by the Claimants and that the Claimants proposed meaning was ‘neither ‘wildly extravagant and impossible’, nor ‘clearly not defamatory in their tendency’ given the accusations of violence’; and
- That it could plainly be inferred that the Claimants had suffered serious harm and that such an inference would not be the subject of strict evidential proof either.
Comment
Whilst the Courts in defamation cases do give Defendants every opportunity to defend themselves given the serious nature of the conduct complained of, this case demonstrates that such latitude does have limits and in the most extreme cases, judges are willing to strike out a party’s statement of the case. It will be interesting to see if an application to set aside the judgment on the basis of further medical evidence is made in accordance with CPR Part 39.3.
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