Farhan Ahmed Junejo v New Vision TV Ltd
| Jurisdiction | England & Wales |
| Judge | Master Hill |
| Judgment Date | 01 March 2021 |
| Neutral Citation | [2021] EWHC 449 (QB) |
| Date | 01 March 2021 |
| Docket Number | Case No: QB-2019-003254 |
| Court | Queen's Bench Division |
[2021] EWHC 449 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
DEPUTY Master Hill QC
Case No: QB-2019-003254
David Lemer (instructed by Stone White solicitors) for the Claimant
Jonathan Barnes (instructed by Gresham Legal) for the Defendant
Hearing date: 11February 2021
DEPUTY Master Hill QC:
Introduction
By an application notice sealed on 19 November 2020 the Defendant seeks an order striking out the Claimant's libel claim pursuant to CPR 3.4(2)(c) and the court's inherent jurisdiction. The libel claim arises from statements broadcast by the Defendant to the effect that the Claimant, a successful businessperson, was guilty of fraud and theft of money from the Development Authority of Pakistan (“TDAP”) in 2013 and laundering funds stolen from the TDAP to Dubai, America and Switzerland; and that there were grounds to investigate whether he was guilty of further money laundering of the proceeds of this crime in London. The Claimant's position is that these serious statements were untrue and have caused him significant reputational damage.
The basis for the application is that the Claimant has failed to comply with an order of Nicklin J dated 23 October 2020, to the effect that he must make an interim payment to the Defendant of £15,000 in respect of costs, by 4.30 pm on 6 November 2020. The costs arose because, in the context of a preliminary issues trial, in which the Claimant was partly successful, the Defendant succeeded on some elements, namely a strike out application relating to part of the claim and in resisting the Claimant's application to re-amend his Particulars of Claim.
The application notice has appended to it a series of letters between the parties from early November 2020 in which the Claimant made clear that he was struggling financially and required additional time to pay. An offer to pay by instalments was made. However the Defendant did not accept the offer and the Claimant did not make the payments. Shortly before the 11 February 2021 hearing the Claimant paid the Defendant £2,000 of the monies due.
The Claimant provided a witness statement dated 5 February 2021 for the hearing of the application, setting out his financial difficulties in further detail. He also provided bank statements and other evidence about his finances.
The legal framework
In seeking to strike out the claim by reason of the Claimant's failure to pay the costs order made by Nicklin J, counsel for the Defendant relied on the approach to such applications set out by Patten J in Crystal Decisions (UK) Ltd v Vedatech Corp [2006] EWHC 3500 (Ch) and considered by Sir Richard Field (sitting as a Deputy Judge of the High Court) in Michael Wilson and Partners Ltd v Sinclair and others [2017] EWHC 2424 (Comm).
At [29] of Wilson, Sir Richard Field summarised the applicable principles thus:
“(1) The imposition of a sanction for non-payment of a costs order involves the exercise of a discretion pursuant to the Court's inherent jurisdiction.
(2) The Court should keep carefully in mind the policy behind the imposition of costs orders made payable within a specified period of time before the end of the litigation, namely, that they serve to discourage irresponsible interlocutory applications or resistance to successful interlocutory applications.
(3) Consideration must be given to all the relevant circumstances including: (a) the potential applicability of Article 6 ECHR; (b) the availability of alternative means of enforcing the costs order through the different mechanisms of execution; (c) whether the court making the costs order did so notwithstanding a submission that it was inappropriate to make a costs order payable before the conclusion of the proceedings in question; and where no such submission was made whether it ought to have been made or there is no good reason for it not having been made.
(4) A submission by the party in default that he lacks the means to pay and that therefore a debarring order would be a denial of justice and/or in breach of Article 6 of ECHR should be supported by detailed, cogent and proper evidence which gives full and frank disclosure of the witness's financial position including his or her prospects of raising the necessary funds where his or her cash resources are insufficient to meet the liability.
(5) Where the defaulting party appears to have no or markedly insufficient assets in the jurisdiction and has not adduced proper and sufficient evidence of impecuniosity, the court ought generally to require payment of the costs order as the price for being allowed to continue to contest the proceedings unless there are strong reasons for not so ordering.
(6) If the court decides that a debarring order should be made, the order ought to be an unless order except where there are strong reasons for imposing an immediate order”.
Counsel for the Claimant relied on Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 for the proposition that the general principles set out in Denton v TH White Ltd [2014] EWCA Civ 906 are applicable to strike out applications. He therefore argued that the Court should (i) identify and assess the seriousness and significance of the failure to comply with the Court order; (ii) consider why the default occurred; and (iii) evaluate all the circumstances of the case to enable the court to deal with the application justly. Ultimately, though, in a strike out application, the central question is whether the sanction of strike out is proportionate.
Counsel for the Claimant also emphasised that striking out a statement of case because of a litigant's failure to comply with a court order for the payment of money which is beyond their means may amount to a breach of the right to access to a court derived from Article 6(1) of the European Convention of Human Rights. A party should not be ordered to pay a sum of money that they are unlikely to be able to raise; and a court should not impose a condition upon a party which has the effect of stifling their continued participation in the proceedings. A party can prove such a stifling effect by establishing, on the balance of probabilities, that he does not have the means to comply with the condition and cannot raise the necessary sums from friends, relatives or business associates willing to help him in his hour of need (see Ford v Labrador [2003] UKPC 4 and Goldrail Travel Ltd v Aydin [2017] UKSC 57).
The Defendant's submissions
The Defendant made four overarching points.
First, it was argued that the ordinary Civil Procedure Rules policy of “pay-as-you-go” in terms of costs applies. Nicklin J had accepted that significant costs were payable by the Claimant to the Defendant and that a payment on account should be made. The Defendant has been left out of pocket in respect of its legal costs arising from the hearing of 23 October 2020 and is entitled not to have its cashflow impacted as it has been by the Claimant's default.
Second, while accepting that if this was a case of a “lack of means”, Article 6 would mean the Court should proceed to a strike out with particular caution, the Defendant submitted that this was not such a case: rather, the Claimant did have the means to pay, but had simply chosen not to pay. The financial information provided by the Claimant was “ highly unsatisfactory”, not least because he had chosen not to disclose his tax return, which might have given a true audited picture of his income. However such...
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