Edwards v Golding & Ors

This is a libel action commenced in 2002, some four years ago. According to the Particulars of Claim, the Claimant was a candidate at the election of a Borough Councillor for the Tipton Green Ward of the Metropolitan Borough of Sandwell, which was held on 2^nd May 2002. The Claimant was the Freedom Party candidate. The Claim Form as originally issued named two Defendants. The First Defendant was described as the editor of “the Voice of Freedom”, a newspaper supporting the British National Party. It is alleged in the original Particulars of Claim that the Second Defendant, Simon Darby, caused the words complained of to be distributed in the Tipton Green Ward at various dates up to and including 2^nd May. The proceedings were never served on the First Defendant. On 12^th July 2005, by Order of Gray J, a notice of discontinuance was deemed to have been served on the Second Defendant by the Claimant and the case against the Second Defendant discontinued on 12^th July 2005.

However, as foreshadowed at the hearing before Gray J, a week later, on 19^th July 2005, the Claimant issued an Application Notice by which he applied for an order that Mr Nicholas Griffin be joined as Third Defendant and “(so far as necessary) any relevant limitation period be disallowed pursuant to Section 32A Limitation Act 1980 because he is the author of the words pleaded at paragraph 4 of the Particulars of Claim herein, a fact that the Claimant only learnt on 5^th or6^th July 2005”. The Third Defendant states that he was elected the leader of the British National Party (“BNP”) in 1999.

The words complained of include and appear under the heading “Watch Out-Tory Vote Splitters About!” and are as follows:

“A tiny group of ultra-Conservatives are hoping to split the BNP vote in several key wards in the West Midlands in this May’s council elections. A known player in this attempt to thwart a BNP pro-white electoral breakthrough is Steve Edwards.

Mr Edwards was briefly BNP Regional organiser in the area, before leaving in a huff after being disciplined for causing internal disruption in a failed attempt by a shadowy Tory group to take over the party.

Mr Edwards has gone even further in his renunciation of his working class roots by describing his so-called “Freedom Party” (aptly nicknamed the Three - of - Em Party) as “middle class and respectable”.

He is believed to be planning to stand in Tipton Green, despite the fact that he is not legally entitled to do so, having turned his back on Tipton years ago to move to a £170,000 yuppie house in the posh village of Wombourne, in the leafy Staffordshire countryside”.

The meanings complained of are alleged to be that the Claimant intended to stand for election as a borough councillor even though he was not legally entitled to do so and no longer had any interest in the welfare of the ward in question and its electors.

On 1^st September 2005 Master Eyre heard Mr Davies of counsel (who appeared for the Claimant before the Master and before me), and Mr Adams, a representative of the then proposed Third Defendant. He ordered that the Third Defendant be joined as a Defendant. The Claim Form was amended on the same date and an amended Particulars of Claim is dated 5^th September. On 6^th October 2005 the Third Defendant filed an Acknowledgment of Service indicating his intention to defend all of this claim. However, no Defence having been filed, on 29^th November 2005 Judgment was entered for the Claimant in default and it was ordered that the Third Defendant pay the Claimant an amount which the court would decide. On 24^th March 2006 Master Turner ordered the assessment of damages to be listed for a hearing before a judge and jury on a date which ultimately became Monday 3^rd July 2006.

On the preceding Friday, 30^th June 2006, I heard argument on an Application Notice issued on 22^nd June 2006 on behalf of the Third Defendant. By that Notice, Messrs David Price Solicitors and Advocates (who had come on the record that day) gave notice that they intended to apply for orders that the judgment against the Third Defendant be set aside and the order of Master Eyre joining the Third Defendant as a party to the claim be also set aside. The grounds given in the Application Notice are that the limitation period for the publication complained of had expired in or around March 2003, that (as is common ground) the conditions in CPR 19.5 permitting addition of a party after the expiry of a limitation period did not apply, and so, it is stated, the alleged ignorance on the part of the Claimant as to the Third Defendant’s role in the publication complained of could not as a matter of law affect the date on which the limitation period expired. In addition it is stated that the Third Defendant has a real prospect of defending the claim on grounds other than limitation.

As to the latter point there is a draft Defence. In that draft publication is admitted, there is a denial that the words complained of are defamatory, a denial that the Claimant did not know that the Third Defendant was the author, and pleas of justification, honest comment, qualified privilege and limitation, namely that the claim had been time barred since May 2003. There is also a plea of abuse of process.

It appears that in July 2005 the Claimant may have intended to apply at the same time both for permission to discontinue the claim against the Second Defendant and to join the Third Defendant. His second witness statement dated 11^th July 2005 is said to be in support of both applications. In fact, as already stated the discontinuance occurred on 12^th July and the joinder was not until 1^st September.

In his Second Witness Statement, the Claimant states:

2)

Until 6th July 2005, when I saw Mr Griffin’s statement, I did not know that he was the author of the anonymous article pleaded at paragraph 4 of the Particulars of Claim herein. I had suspected that the First Defendant was the anonymous author.

3)

I accordingly ask the court to give me permission to join Mr Griffin as a Defendant, to amend the claim form and the Particulars of Claim… and (if necessary) to exercise its discretion under Section 32A of the Limitation Act 1980 to disallow the limitation period, given the anonymous nature of the publication. I accept that this publication cannot be dealt with on 12th July 2005 since Mr Griffin is entitled to proper notice of it. …”

In his witness statement dated 4^th July 2005 the Third Defendant (as he later became) was setting out information relating to the claim against the Second Defendant. He stated that the First Defendant’s responsibilities included editing the Voice of Freedom newspaper, but said that in fact he himself did the majority of writing and sub-editorial work. He said the Second Defendant did not write articles and had no involvement in or control over the publication.

The Third Defendant did not prepare a witness statement for the hearing on 1^st September 2005. However, he did prepare a letter to solicitors for the Claimant dated 30^th August which, I understand, was before the Master. In it he complained that it was only on Monday 29^th August that he had received the Claimant’s application to join him as a defendant. In the letter he wrote:

“The purpose of this letter is to notify your client:

a)

That I strongly oppose the application (although I believe this will already have been anticipated by your client and you and your counsel). This is because I believe your client knew full well from the outset that I was the author of the alleged defamatory article or at least could very easily have found this out or had this confirmed at the time. Accordingly your client’s claim against me is statute barred, the one year time limit having expired in 2003.

b)

I therefore require the issue of whether I am joined to be dealt with at a separate hearing for which I have been given adequate opportunity to prepare and be represented.”

The letter went on to complain of the fact that Mr Davies was representing the Claimant and that the application was abuse of the court procedure. He asked for an adjournment, which the Claimant refused to agree to.

The submissions to the Master on behalf of the Claimant are set out in a document headed Claimant’s Outline Submission dated 23^rd August and signed by Mr Davies. In that document it is stated that, insofar as was then known to the Claimant, the Third Defendant was unrepresented and accordingly the document was to set out the applicable and substantive procedural law in detail, so that Mr Griffin is not taken by surprise at the hearing.

The document then refers to CPR Part 19 in particular 19.2(2)(a)(b) and 19.2(1), which, it is stated, Mr Griffin might wish to rely upon. There is then a concession that if the stringent test of necessity under CPR 19.5(3) applies then the Third Defendant could not be joined as a defendant under 19.5 for that reason. CPR 19.5 includes the following:

“19.5

(1) This rule applies to a change of parties after the end of a period of limitation under –

(a)

the Limitation Act 1980(1); ...

(2)

The court may add or substitute a party only if –

(a)

the relevant limitation period was current when the proceedings were started; and

(b)

the addition or substitution is necessary. ...

(4)

In addition, in a claim for personal injuries the court may add or substitute a party where it directs that –

(a)

(i) section 11 (special time limit for claims for personal injuries); or

(ii)

section 12 (special time limit for claims under fatal accidents legislation), of the Limitation Act 1980 shall not apply to the claim by or against the new party; or

(b)

the issue of whether those sections apply shall be determined at trial.

(Rule 17.4 deals with other changes after the end of a relevant limitation period)”

The document then continued as follows, to address the question whether the application was being made after the end of the limitation period:

“10.

Section 4A of the Limitation Act 1980 provides that no action for (inter alia) libel shall be brought after the expiration of one year from the date on which the cause of action accrued.

11.

C does not know the precise date on which the words complained of were published, but it is clear that publication was in the month of March 2002.

12.

The first question for consideration is whether the cause of action against Mr Griffin accrued at that time, bearing in mind that the publication was anonymous, and wrongly believed by C to have been the work of [the First Defendant]…

13.

A cause of action accrues when a Claimant knows the facts that he “has to prove to establish a prima facie case” (per Neill LJ in C v. Mirror Group Newspapers [1997] 1WLR131 at 138H.

14.

It is submitted that one of these facts is the identity of the party to be sued; CPR 7 PD 4.1(3): “the claim form and every other statement of case must be headed with the title of the proceedings, the title should state: ….. (3) the full name of each party”.

There is then a submission that if this is wrong, then the Claimant will rely on Section 32(1)(b) of the Limitation Act 1980, namely deliberated concealment by the defendant of a fact relevant to a Claimant’s right of action. However, the witness statement of the Claimant does not support this allegation. The only fact relied on in the document is the fact that the words complained of were published anonymously. Third and last there is a submission that, if neither of the two foregoing submissions are accepted, then the Claimant will seek a direction under Section 32A of the Limitation Act 1980 (Discretionary exclusion of time limit for actions in defamation) that Section 4A of that Act should not apply to the Claimant’s cause of action against Mr Griffin.

There is no note of the Master’s judgment. However, during the hearing Mr Davies told the court that the Master had given his reasons as follows. The Master had said that there was a triable issue that the Claimant had not known until very shortly before the hearing, on 12^th July 2005 that the Third Defendant was the author. He would permit the joinder of the Third Defendant and leave the Third Defendant to plead a limitation defence, if so advised, and the case could go to trial. The Master accepted the submission that knowledge of the identity of the publisher was part of the cause of action. The Master said he would join the Third Defendant without prejudice to any defence of limitation.

Before me Mr Davies accepted that the Order of the Master does not contain any proviso that the joinder shall be without prejudice to any defence of limitation. In fact there is no means by which there could have been such a proviso. Such an order is possible in relation to personal injury claims (see CPR 19.5(4), set out above) but there is no provision in the law for such a proviso in relation to defamation proceedings. The effect of the joinder of the Third Defendant was in fact to defeat the purpose that the Master expressly stated he had in mind. The reason why there are the provisions restricting joinder after the expiry of a limitation period as set out in CPR 19.5 is that if a party is joined, then he is treated as having been a party from the beginning of the original action: Limitation Act 1980 s.35(1)(b). He therefore loses his limitation defence, such as it may be. Accordingly, where it is arguable that a proposed new defendant may have a limitation defence the proper practice is that a new action should be brought. See the White Book, 2006 edition note 17.4.2 and Sarayiah v Suren [2004] EWHC 1981 (QB) para 70. The application for the order under s32A of the Limitation Act must precede the bringing of the fresh proceedings.

It appears clear that the Master did not adjudicate upon either of the alternative submissions made on behalf of the Claimant, namely concealed fraud or Section 32A.

As already noted, the application on behalf of the Third Defendant is that the judgment in default should be set aside and that the order joining him as Third Defendant should then also be set aside. In addition in the course of argument, Mr Price asked me to treat the matter as if there was an application for permission to appeal against the order of Master Eyre joining the Third Defendant as a party to the claim. No appellant’s notice has been served nor grounds set out in writing. I have not found it necessary to consider this alternative submission.

The jurisdiction to set aside a judgment in default is derived from CPR 13.3. This states:

“13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a)

the defendant has a real prospect of successfully defending the claim; or

(b)

it appears to the court that there is some other good reason why –

(i)

the judgment should be set aside or varied; or

(ii)

the defendant should be allowed to defend the claim.

(2)

In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.”

The jurisdiction which Mr Price submits permits the setting aside of the order of Master Eyre joining the Third Defendant is to be derived from one or both of CPR 3.1(7) and 19.2 (3). These provide as follows:

“3.1(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.

19.2

(3) The court may order any person to cease to be a party if it is not desirable for that person to be a party to the proceedings”.

This is not a case to which CPR 23.10 applies (application to set aside or vary order made without notice), because the Third Defendant did attend the hearing before the Master on 1^st September 2005 accompanied by Mr Adams.

CPR 13.3 requires the court to direct attention to two main considerations relevant to this case when being asked to set aside a judgment in default. The first consideration is in effect the merits of the defence, whether there is a real prospect of the defendant successfully defending the claim, or whether there is some good reason why the judgment should be set aside or the defendant allowed to defend the claim. So far as these proceedings are concerned, the focus of attention on this point is, first, whether the Third Defendant should have been joined at all in the light of the expiry of the limitation period (as the Third Defendant alleges that it had expired), and the merits of the defences pleaded in the draft Defence. The second consideration is delay. Mr Davies for the Claimant points to the very late stage at which this application is made, having regard to the joinder order being on 1^st September 2005, some ten months ago, and the judgment in default having been some seven or eight months before the application.

The basis for the joinder of the Third Defendant, as argued by Mr Davies in writing before Master Eyre last September, and again before myself, is that the limitation period had not expired because a cause of action in defamation does not accrue before a Claimant knows the identity of the party responsible for the publication complained of.

The Mirror Group Newspapers case does not in fact say anything about the cause of action accruing only when a claimant knows all the facts he has to prove to establish a prima facie case. In that case a plaintiff was complaining about defamatory words which her ex-husband had spoken about her. The case concerned the application of Section 32A of the Limitation Act 1980 as amended by the Administration of Justice Act 1985 (it has since been re-amended by the Defamation Act 1996). The fact that the plaintiff in that case claimed that she did not know was not the identity of the person who spoke the words complained of, but the fact that he had spoken them outside court. The words of Neill LJ in that case were concerned with the words “the facts relevant to that cause of action” (as used in s32A), not with when the cause of action arose.

As Mr Price submits, the general rule in relation to defamation is set out in Gatley on Libel and Slander 10^th Edition para 18.18. The period of limitation runs from the date of the accrual of the cause of action. In the case of libel that point is the date of publication, because that is the first moment at which the Claimant can bring proceedings. The editors also point out that in all cases the running of the period might be postponed because of concealment by the defendant (that being a reference to the Limitation Act 1980 Section 32 (1)(b): postponement where “any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant”).

Mr Davies has not cited any authority for the proposition that the Claimant’s knowledge of the identity of the publisher of the words complained of is a constituent of the cause of action. The submission is contrary to principle. Where the Claimant lacks knowledge of that person’s identity, the Claimant may be able to rely upon Section 32(1)(b). Alternatively, he may ask the court to direct that Section 4A of the 1980 Act shall not apply to the action, pursuant to Section 32A (as amended by the Defamation Act 1996) on the grounds that the identity of the publisher is a fact relevant to the cause of action and that fact did not become known to the Claimant until after the end of the period mentioned in Section 4A (Section 32A (2)). As already noted, neither of these sections of the 1980 Act were given as reasons for the order by Master Eyre. Neither of them has been relied upon before me.

Mr Davies accepted in his skeleton argument before the Master, and has accepted before me, that if he had to rely on CPR 19.5(1), then his application under that paragraph to join the Third Defendant could not succeed, because by 19.5(2)(b) and (3), the addition of a new party has to be necessary within the meaning of that rule, and the Claimant could not satisfy that stringent test.

In addition Mr Price submits that the Third Defendant could not in any event be joined by way of an application to amend the Claim Form, because, by 1^st September 2005, there were no pending proceedings. As already noted, the proceedings against the Second Defendant were the only active proceedings and they had been discontinued pursuant to the order of Gray J on 12^th July 2005. The general rule is that a claim form must be served within four months after the date of issue (CPR.7.5). Mr Davies does not submit that there was on 1^st September 2005 any basis for an application to extend time to serve the First Defendant, which would have had to comply with CPR 7.6.

Accordingly it appears to me that for both these reasons relied on by Mr Price the joinder of the Third Defendant was without jurisdiction. Accordingly it should have been, and should now be, set aside if the procedure to do so is still available.

Mr Price relies on CPR 3.1(7) and 19(3) as stated above. In considering these submissions I shall for the moment assume that the judgment in default can be set aside.

Mr Davies submits that the only procedure for setting aside the joinder (it having been made in the presence of the Third Defendant), was by appeal. The time for appealing, he submits is long since passed even if there were an appellant’s notice and grounds for appeal. As to CPR 3.1(7), Mr Davies refers in particular to the judgment of the Court of Appeal delivered by Dyson LJ in Collier v. Williams & Ors [2006]EWCA Civ 20 paras 39 to 40. These are as follows:

“39 … CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch).  He said at paragraph 7:-

“The Deputy Judge exercised a discretion under CPR 13.3.  It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order.  If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal.  I have been given no real reasons why this was not done.  That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time.  It seems to me that the only power available to me on this application is that contained in CPR 3.1(7), which enables the Court to vary or revoke an order.  This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction.  Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR 3.1 (7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him.  The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction.  If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal.  Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ.  It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."

40.

We endorse that approach.  We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7). ”

In addition Mr Price relies on the same judgment at paragraph 119 to 120 which read as follows:

“119.

The possibility of recourse to CPR 3.1(7) remains to be considered.  As we have said earlier, this rule gives a very general power to vary or revoke an order.  It appears to be unfettered.  But it is a wrong exercise of this power to vary or revoke an order where there has been no material change of circumstances since the earlier order was made and/or no material is brought to the attention of the second court which was not brought to the attention of the first.  A party who unsuccessfully deploys all his material before a court should not be allowed to have a second bite of the cherry merely because he failed to succeed on the first occasion.  We refer to paras 39 and 40 above and our approval of the observations of Patten J in Lloyd's Investment (Scandinavia) Limited's case.  Mr Sharp submits that the mere fact that an application is refused without a hearing is a sufficient reason for requiring CPR 3.1(7) to be construed as enabling a court to vary or revoke an order even where no new material is deployed by the applicant.   He says that any other interpretation is inconsistent with article 6 of the European Convention on Human Rights.  We disagree.  The existence of the right of appeal adequately protects an applicant's article 6 rights.  Moreover, if an applicant reasonably considers that an oral hearing is necessary to explain the point properly, the court will usually accommodate a request for a hearing.  At para 38 above, we warn of the dangers of making an application for the grant of an extension of time for the service of a claim form without a hearing. 
120.          In short, therefore, the jurisdiction to vary or revoke an order under CPR 3.1(7) should not normally be exercised unless the applicant is able to place material before the court, whether in the form of evidence or argument, which was not placed before the court on the earlier occasion.” (emphasis added)

It is plain that Dyson LJ said in para 40 that the circumstances outlined by Patten J are the only ones in which the power to vary or revoke an order already made should be exercised under 3.1(7), namely where the applicant can show some material change in circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him.

In Collier the Court of Appeal was not concerned with a case where the order made by the court defeated the purpose which, for the reasons given, the court had explained that it wished to achieve. I can only presume that the Master, Mr Davies and the Third Defendant were all proceeding under the same mistake or mistakes. They all thought that the order did leave open to the Third Defendant a limitation defence. If this mistake had been discovered promptly, an appeal would inevitably have succeeded. The question is whether it was necessary to correct it by appealing, or whether it might also be corrected under CPR 3.1(7).

A judgment of the Court of Appeal is not to be read as if it were a statute, but it is only with the greatest hesitation that a judge at first instance will feel able to find that there is an exception to a statement as comprehensive as that of Dyson LJ in para 40 of the courts judgement in Collier. I must also bear in mind the Overriding Objective of the CPR, which is to enable the court to deal with cases justly. The Master’s mistake as to the effect of the order of 1^st September 2005 is fundamental. Given that the limitation period had clearly expired, the order is one which he had no jurisdiction to make, whether in the form which it intended to make, or at all. In these unusual circumstances, it seems to me that this is a case which does come within CPR 3.1(7).

That is not the end of the matter so far as the Third Defendant’s case is concerned. He submits that the Master was misled as to the facts, and not innocently. Before turning to the allegations made by him, or on his behalf, I must state that the witness statements, in which these allegations are made, dated 24^th March, made by the Third Defendant and by Mr Adams, have not been contradicted by or on behalf of the Claimant. That does not mean that the contents are admitted. Even if they were contradicted, I could not, of course, resolve a dispute of fact on paper alone.

In his witness statement of 24^th March 2006, para 7, the Third Defendant states that at the time the cause of action arose, namely when the offending article was published in March 2002, the Claimant knew full well, or at least strongly suspected, he was the author. He states that between 2002 and 2005 he had several telephone conversations with Mr Davies in which they both explored the possibilities of settling the Claim against Simon Darby. He states that he mentioned to Mr Davies that he was the author of the article not Paul Golding. He states that the first occasion was in a telephone conversation sometime between mid and late 2002, in other words the year the cause of action arose and proceedings were instituted.

Mr Adams refers to this in paragraph 43 of his witness statement and adds that if correct that this would amount to perjury or fraud on the court.

This is of course a very serious allegation to make against Mr Davies, and Mr Davies made clear in submissions to me that he denies the allegations. However, he also made clear that while he remained an advocate he could not also be a witness, and I have to proceed on the information before me. In para 18 of his witness statement, the Third Defendant also states that Mr Davies knew the Third Defendant as well as both the First and Second Defendant, and had advised the Third Defendant personally, (which I do not understand to be controversial), as well as the Second Defendant, in the past.

If the matter is to proceed on the basis that the court had been misled, and not innocently, then it seems to me that unless the facts are admitted (which they are not) then the order made on 1^st September 2005 could be set aside in accordance with the judgment of Dyson LJ under CPR 3.1(7) on that basis. A judgment of a court can be set aside if it has been obtained by fraud, although the usual means of doing that in relation to a final judgment is the commencement of new proceedings. However, before proceeding on that basis I would give the Claimant an opportunity to serve evidence to address the allegations of the Third Defendant and make directions as to how this issue should be pursued. Given my conclusion that the order can be set aside in any event, I have not proceeded on that basis.

I turn then to explain why I have concluded the default judgement can be set aside. I have concluded that the order of 1^st September 2005 joining the Third Defendant was made without jurisdiction and that it defeated the purpose which the Master stated that he was intending to achieve. In my judgment it follows that the condition in CPR 13.3(1)(b) is satisfied. There is a good reason why the judgment should be set aside and the defendant allowed to defend the claim, at the very least on the defence of limitation which the Master intended to be open to him. There was also some argument before me on both sides as to the Third Defendant’s prospect of successfully defending the claim on the basis of the other defences set out in the draft Defence served recently. I address those arguments below.

The rule gives a very general power. If Collier is binding authority precluding reliance on rule 3.1(7) in this case, it is not strictly binding in relation to rule 19.1(3). Nevertheless, much of what is said in Collier must apply as much to this rule as it does to CPR 3.1(7). It cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. There may well be cases to which rule 19.1(3) would apply and to which rule 3.1(7) would not. But it is hard to see why, in this case, a different result should follow from the application of rule 19.1(3) if rule 3.1(7) cannot be invoked. For the same reasons that I have given for my conclusion about rule 3.1(7), I also conclude that I have power to set aside the joinder under rule 19.1(3).

The second issue in relation to CPR 13.3 and the limitation defence is whether, having regard to the fact that the application to set aside the judgment has not been made promptly, I should refuse it. There is of course no doubt that it has not been made promptly, far from it. On the other hand, I find that there is no prejudice to the Claimant, other than the further delay itself. And the delay on the part of the Third Defendant, while substantial, has to be seen in the context of the delays that have already occurred in this very stale action.

In support of the submissions that the delay in making this application was such that it could not be granted, Mr Davies drew my attention to Regency Rolls Limited v. Carnall [2000] EWCA Civ 379. That was a case (as Mr Price asked me to note) in which the application was to set aside the orders made on the trial of preliminary issues that had been determined by the judge on 22^nd March 1999. By an order of that date the court had declared that Mr Carnall had not been appointed a director of the first Claimant company and that the second Claimant had not resigned as a director of the company, and the order restrained Mr Carnall from involvement in the management of the company or holding himself out as a director of the company. This was not therefore a default judgment. It was, however, a trial at which Mr Carnall had not attended, because the judge was not convinced by the medical certificate upon which he was asked to grant an adjournment, and he declined to do so. In fact he held that Mr Carnall’s non-attendance was an abuse of the process of the court (paragraph 13).

There was no challenge before the Court of Appeal to the judge’s refusal to adjourn. The appeal was from the order of the judge dated 29^th September 2000 whereby he dismissed the application to set aside the orders made on 22^nd March 1999. In the judgment of 29^th September, the judge accepted that the illness of Mr Carnall had been genuine, but he did not set aside the judgment because of the lack of promptness in making the application, and the lack of reasonable prospect of success. The application was made under CPR 39.3, which, like CPR 13.3, requires that an application be made promptly.

Arden LJ expressed her view at para 24:

“The dictionary meaning of “promptly” is “with alacrity”. I have grave doubts as to whether Mr Carnall acted with the requisite degree of alacrity, but in view of my conclusion on other matters I need not decide this point”.

Rix LJ agreed with Arden LJ that Mr Carnall had no reasonable prospect of success. As to promptness, he added this at para 39:

“However broadly the concept of promptness might have to be regarded, for instance in a case where the appellant has an excellent case on appeal, in my judgement Mr Carnall here on any view failed to act promptly. He took another twenty six or so days to make his application”.

Brown LJ (as he then was) agreed with the judge and with Arden and Rix LJ J, that the appellant in that case had no reasonable prospect of success at trial, but he added this:

“44.

But I wish to touch briefly on the question of promptness. As is pointed out in the footnote 39.3.7 to the Spring 2000 Civil Procedure White Book:

"Note that the wording of r.29.3 (5) provides more stringent requirements than CCR O.37 r.2 which it replaces. The court no longer has a broad discretion. There is only jurisdiction to set aside a regular judgment if the party seeking to have the order set aside can satisfy all three requirements in r.39.3(5)."

45.

This consideration must, I think, inform the court's approach to the construction of the word "promptly" in precondition (a). At first blush it might be thought that any inappropriate delay whatever on the part of an applicant would require that he be found not to have acted promptly. Yet such a construction would carry with it the Draconian consequence that, even if he had a good, perhaps compelling, reason for not having attended the trial, and a reasonable - perhaps, indeed, excellent - prospect of success at trial, the court would still be bound to refuse him a fresh trial. I would accordingly construe "promptly" here to require, not that an applicant has been guilty of no needless delay whatever, but rather that he has acted with all reasonable celerity in the circumstances. That said, I too would regard the appellant here as having failed even in that obligation. 30 days was altogether too long a delay before making this Part 39 application. Having regard to the long, and generally unsatisfactory, history of the proceedings to that point, the application plainly could, and in my judgment reasonably should, have been issued well before it was.”

CPR 39.3 is headed “Failure to attend the trial” and reads:

“39.3

(1) The court may proceed with a trial in the absence of a party but –

(a)

if no party attends the trial, it may strike out (GL) the whole of the proceedings;

(b)

if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c)

if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2)

Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3)

Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside (GL) .

(4)

An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5)

Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a)

acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b)

had a good reason for not attending the trial; and

(c)

has a reasonable prospect of success at the trial.”

Mr Davies referred me to another case under CPR Rule 39 namely BCCI S.A.v Zafar (unreported 2^nd November 2001). In that case Rimer J directed himself by reference to Regency Rolls. Rimer J held that a delay of fourteen days by a litigant in person was “dangerously close to the margin”.

Mr Price referred me JH Rayner (Mincing Lane) Ltd v Federative Republic of Brazil unreported 29^th July 1999 CA. The view of the Court of Appeal, expressed in the judgment of Waller LJ included:

“2.

Passage of time alone

It does not seem to me right that the passage of time alone should preclude a defendant having a judgment in default set aside. There are examples in the authorities of judgments being set aside after relatively long periods, e.g. Oilike Ltd v Reid (unreported C.A. 1 September 1986). In that case the Court of Appeal held that the defendant had shown two lines of defence on the merits, and despite not being inclined to accept the defendant’s explanations about being unaware of the proceedings, and despite a delay of 5 years, set aside the default judgment. Thus a submission that 7 years is just too long without more is not one I am prepared to accept. …

4.

Attitude of the court once defence shown

The authorities to which we were referred demonstrated that if the court concluded that there was a defence on the merits which carried some degree of conviction, it is the very strong inclination of the court to allow a default judgment to be set aside even if strong criticism could be made of the defendant’s conduct. Indeed, Mr Hirst’s and his junior’s researches had not discovered an authority where if that was the view of the court, the court nevertheless refused to set aside the judgment. Perhaps the most striking illustrations which demonstrate the attitude of the courts are the unreported decision of the Court of Appeal in Vann v Awford (18 April 1986), and a further decision of the Court of Appeal in The Saudi Eagle (supra)in which Vann v Awford was followed and applied….”

While this is a decision under the RSC, not the CPR, it seems to me to be as applicable today as it was in 1999. The position under CPR 39, where there has been a trial, is not the same as the position under CPR 13, where there has not. As Mr Price submits, the terms of the two rules are significantly different. In CPR 39 promptness is a condition. In CPR13.3 it is a factor to which the court must have regard.

The evidence relating to the delay is set out in the witness statements of the Third Defendant and Mr Adams.

The Third Defendant’s witness statement of 24^th March 2006 was made by him in support of a request for a stay of the proceedings until he had lodged an application to set aside the judgment. The grounds for this application were, as he said, that he had a strong defence, but that the judgment in default had been entered when he was without legal representation, other than the pro bono assistance of Mr Adams. He said he was having continuing difficulties in obtaining legal representation in particular that of specialist counsel. The defence, which he was then claiming was unanswerable, was the limitation defence. He did not at that time mention any other defence.

He states that he attended the hearing on 1^st September 2005 with Mr Adams assisting him pro bono. By that time he had been charged with offences arising out of a BBC documentary for which he was shortly to stand trial in Leeds Crown Court, a case which attracted considerable publicity. He recognised that if convicted in that trial he faced a sentence of imprisonment, and therefore gave the criminal proceedings his main attention. The trial was fixed for 16^th January 2006 and he was heavily preoccupied with that during the autumn of 2005, at the time the judgment in default in these proceedings was entered. He states that Mr Adams ensured that he filed the Acknowledgment of Service, and that Mr Adams told him that he, Mr Adams, was continuing his efforts to find a barrister to act on a direct access basis. He was then told by Mr Adams that the Court had said that the file had been lost. Mr Adams further told him that the Court had stated that there was no question of any judgment being entered until the question of where the file was and where the matter would be transferred to being resolved.

He received notice that judgment had been entered in default, he was alarmed, and continued his efforts to find legal representation. A hearing was fixed for 17^th January 2006 to determine directions for the assessment of damages. It so happened that this was the second day of the criminal trial in Leeds Crown Court. Accordingly, by consent of the Claimant this appointment was adjourned until after the criminal trial. The Third Defendant was acquitted of most of the charges in the criminal trial, but the jury could not agree on some and a re-trial was ordered. A preliminary hearing was directed for June 2006 (it so happens that the preliminary hearing coincided with the proceedings before me) and a ten day retrial set for October 2006. The Third Defendant stated that he was continuing his efforts to obtain representation to prepare an application to set aside which was to be supported by a draft defence. He apologised and asked for the court’s indulgence. He also contended that the Claimant had waited knowingly, as he said, for over two years to join him to these proceedings and that by this time it was four years since the cause of action had arisen.

On 23^rd June 2006 the Third Defendant made a further witness statement. He again complained of the difficulties he had had in obtaining legal representation. David Price Solicitors and Advocates came on the record on 22^nd June. In this witness statement the Third Defendant said that he had an additional substantive defence of qualified privilege which he wished to advance. He also complained that the proceedings brought by the Claimant were brought with a dominant and improper motive, namely to cause him political and financial embarrassment, and were an abuse of process.

On 24^th March 2006 Mr Adams made a witness statement. He described difficulties which he had experienced, both personally and with respect to the present case, which affected the Third Defendant’s ability to conduct his defence. Mr Adams is a solicitor. He had set up his own practice in 1984, having been admitted in 1978. There was an intervention by the Law Society in his practice on the 1^st August 2004, at which time he was practising on his own account as a sole practitioner. He complains about the intervention, stating that, had it not occurred, the Third Defendant would long since have been able, through him, to instruct a barrister, even having regard to the difficulties of finding one, arising from the Third Defendant’s political views and his chairmanship of the BNP. Mr Adams states that he had tried to find firms of solicitors to act since the Intervention in his practice. He states that a major problem has been the BNP aspect of the case. He states that since 1^st September 2005 he has tried repeatedly to locate a specialist libel counsel who would act on a direct public access basis for the Third Defendant. After describing his difficulties, he stated that the Third Defendant was unintentionally and unavoidably reliant on himself over the period since 1^st September 2005, and that during that period many of the pressures and problems upon himself had prevented him from giving the limited pro bono assistance that was needed. He then sets out a number of personal difficulties. As a result, he states, he has let the Third Defendant down and his charitable intentions have come to nought.

Mr Adams also states that the apparent loss of the court file in London had lulled him into a false sense of security. He had learnt of this loss when he attended court on 6^th October 2005. On 23^rd October 2005 Mr Adams wrote to the solicitors for the Claimant reporting the apparent loss of the file, and asking for an extension of time for the Third Defendant to file his defence to 14^th November. He stated in the letter that he was not the solicitor on the record, and that the Third Defendant was unable to lodge an application himself because he was in Wales. He also recorded what he said was an agreement to a consent order for a transfer of the matter from Birmingham to London.

For the personal reasons to which he had already referred, he stated that he failed to follow this up with the court or with the Claimant’s solicitors. He thought that nothing would happen before he received the Consent Order and was surprised to hear of the judgment in default. There followed a period in which he was unwell, which extended through to the end of February 2006. That, he stated, explained why no formal application had been made until the making of this witness statement. He also stated that the Third Defendant still did not have a full set of papers.

David Price Solicitors and Advocates are well known specialists in the field of defamation. It appears that it was not until they were instructed that the Third Defendant was aware that he should never have been joined as a defendant at all, a point made on his behalf in a letter to the Claimant’s solicitors dated 26^th June 2006. There is nothing to indicate that Mr Adams or the Third Defendant himself were ever aware of the point at an earlier stage. That is how the point came to be raised before me on the Friday before Monday 3^rd July, the date upon which the trial of the assessment of damages had been fixed, pursuant to the directions made by Master Turner hearing on 24^th March 2006.

As already stated, there is no evidence from the Claimant in response to the witness statements of March and June by the Third Defendant and Mr Adams. In these circumstances, and given the specialist nature of defamation proceedings and the rules of limitation in particular, I accept that no blame can fairly be attributed to the Third Defendant for his failure to appreciate that he should not have been joined as a defendant in the first place, and that he could have taken steps to set aside that joinder. On the other hand, no reason has been given as to why he failed to apply promptly to set aside the judgment in default. At that stage he knew what he thought was his defence, namely limitation, and even without legal representation it seems to me that he could and should have applied to set aside the judgment in default.

However, with hindsight it is not clear that applying to set aside the judgment in default in order to plead a claim for limitation would have achieved anything in respect of the limitation defence. As stated above, once he had been joined he ceased to have a limitation defence. Whether, and if so when, this error would have come to light it is impossible to know and fruitless to speculate. Although I can find no excuse for the failure to apply to set aside the judgment in default, I cannot attribute to that failure any consequences additional to the failure to apply to set aside the joinder, which I have found to be understandable and excusable.

In the light of this conclusion, I return to consider CPR 13.3. I have found that there is good reason why the judgment should be set aside and I have had regard to whether the Third Defendant made his application promptly. He did not make it promptly, on the other hand, the proceedings since 1^st September 2005 have proceeded on a footing which is mistaken in law and which is contrary to the purpose which the Master on that date intended to achieve. The Master did not have the assistance on the law which he would have obtained had specialist counsel been instructed on behalf of either party. He was in this respect led into error. There is no suggestion that this error on behalf of the Claimant and his legal representatives was anything other than innocent. It is nevertheless fundamental. In the circumstances it does not seem to me that it would be just that the matter should proceed to an assessment of damages now.

There have been two additional points advanced on behalf of the Third Defendant before me. One is the point, already referred to as already having been made in the witness statements, that these proceedings are an abuse of process. I have heard very little on that, and certainly not enough for me to conclude that this submission is made good. The basis of the submission is the proceedings are being continued against the Third Defendant to advance a political dispute. This is a point separate from the allegation, also made, that the Claimant knew that the Third Defendant was the author of the words complained of much earlier than he claims to have been aware of that fact. I need say no more about either of these points.

The further point that is made on behalf of the Third Defendant is that in defamation claims there is a public interest in ensuring that any vindication is obtained only after the defendant has had the opportunity to deploy defences available to him: see MacKenzie v Business Magazines (UK) Limited 18^th January 1996 CA; The Times 5^th March 1996. In that case Kennedy LJ said:

“In my judgment it is particularly important in an action of this type that both sides should if at all possible be allowed to deploy their case as they wish. The plaintiff seeks to vindicate his reputation. It would be a poor form of vindication if it were only obtained by half muzzling the other side”.

The statement of truth on the draft amended Defence is dated 28^th June 2006. The proposed plea of justification is to a meaning which is pleaded as follows:

“The Claimant was planning to stand in the Tipton Green ward despite not being legally entitled to because he resided in Wombourne”.

The facts relied on in support of the proposed plea are that the Claimant’s registered address for the purpose of his election was 105, Oval Road, Tipton. The draft goes on:

“This was not a genuine address as the Claimant had left the property in or about 1995 to reside in Wombourne and accordingly the Claimant was not entitled to stand in the Tipton Green ward”.

The draft Defence was not provided to solicitors for the Claimant until Wednesday 28^th June. There is no explanation for why the plea of justification that is now included was not included before. In the witness statement dated 23^rd June 2006 there is a reference to a defence of qualified privilege, but not to the defences of justification and comment which are now also included in the draft Defence. However, in the case of MacKenzie, there had also been a late application by the Defendant. His application was made on 12^th January for a trial fixed to float from 14^th January 1996.

Mr Davies submitted that there is nothing in the draft Defence. The late appearance of this simple and (if it is good) obvious defence certainly invites scepticism. The Third Defendant is very experienced in political life, as is a matter of common knowledge, and it is surprising that if there is substance in the proposed plea of justification that he was unaware that it was a defence available to him until so few days ago. People active in political life generally have an understanding of who is entitled to be registered as an elector in any given area. Such information can be very important in local government elections, where majorities can be very slim indeed. Nor would I expect a person active in politics to need a specialist in libel law to advise him that truth is a defence to a libel action.

But, as already noted, there is no evidence put in on behalf of the Claimant. Mr Davies did not ask for an adjournment to enable him to put in evidence that might have addressed the point more fully. Instead Mr Davies addressed the defence by a submission partly of fact and partly of law. By way of fact he states in his Skeleton Argument that no objection under s10A(3) if the Representation of the People Act 1983 (as amended) has ever been made to the Claimant’s registration as an elector in Tipton Green Ward. By way of law he submits that, in consequence, the Claimant is entitled to rely on s.79(1)(a) of the Local Government Act 1972. This does not seem to me to be so compelling an answer as to make me conclude that the proposed defence of justification fails to carry any degree of conviction.

In these circumstances given the statement of truth, I cannot find that the draft Defence of justification is shadowy or lacking in good faith.

Given the law as stated in the Rayner case (see above) the delay in advancing the defence of justification does not present an insuperable obstacle to the Third Defendant. I find there is a defence on the merits which carries some degree of conviction.

If I am wrong in having held that I can set aside the order by which the Third Defendant was joined as a defendant, and if the only ground for applying to set aside the judgment in default were that the Third Defendant wished to rely on the plea of justification, then I would set aside the judgment to enable him to advance that defence. I accept that there is a difference between an application to set aside a judgment in default made some six months late and an application to adduce a new plea of justification in a case which is about to go to trial on liability, as was the case in MacKenzie. But the difference is not material to this case. I also recognise that there is a public interest in finality where a judgment has been obtained, even where it has been obtained by default. But so far as that principle is applicable it is reflected in the law as set out in Rayner.

The point that there is a public interest in vindication being on a proper basis applies principally in relation to a plea of justification and to a very much lesser extent if at all to defences of fair comment, qualified privilege and limitation. I have not given separate consideration to the merits of the defences of comment and qualified privilege. Given the view I have taken on justification, I would also have allowed those other defences to be relied upon, subject to any submissions (such as Mr Davies advanced in relation to qualified privilege) that the amendment ought not to be allowed on ordinary principles relating to proposed amendments where the application is not made late.

Last Friday in adjourning the matter to consider my judgment I stood the matter out from the hearing fixed for the Monday 3^rd July. This judgment contains my reasons for doing that, and for the conclusion which I have reached that the default judgment should be set aside, and the order joining the Third Defendant should also be set aside. It is open to the Claimant if thought fit, to make a fresh application to the court to dis-apply the limitation period pursuant to Section 32A of the 1980 Act or to rely on Section 32(1) (b). I have heard no substantive argument on either of these sections and express no view to the likely prospect of success of either party in relation to them.