Huntingdon Life Sciences Group v Stop Huntingdon Animal Cruelty
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE PITCHERS,Mr Justice Pitchers |
| Judgment Date | 11 November 2004 |
| Neutral Citation | [2004] EWHC 3145 (QB) |
| Court | Queen's Bench Division |
| Date | 11 November 2004 |
[2004] EWHC 3145 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Pitchers
MR T LAWSON-CRUTTENDEN (Instructed by Messrs Lawson Cruttenden) appeared on behalf of the Claimant
MR DALLY appeared on behalf of the Fifth Defendant
Thursday, 11 November 2004
This is an application by Lynne Sawyer, fifth defendant in this action, to set aside a judgment given against her by Mackay J on 26 May 2004. She argues, through her representative, Mr Dally, that it was a default judgment under CPR Part 12 and hence setting it aside falls to be considered under Part 13. The arguments in this case can only be understood against the background of the history of the proceedings.
The injunction under the Protection from Harassment Act was first made on 9 April 2003 by Davis J. That was without notice. The following day, the Claim Form and Particulars of Claim were served on the various defendants. So far as the fifth defendant is concerned, as well as the general allegations that all of the defendants face as to their conduct against the claimants, particulars were served of her alleged involvement. They appear at paragraph 25 of the Particulars of Claim:
"The Claimants case is that Lynn Sawyer is a coordinator behind SHAC's campaign. Additionally, the Claimants rely upon the following:—
(a) 22 April 2000 the trespass during the course of which she climbed onto the roof of the primate house …"
In relation to this, as in relation to each of the particulars there is a cross-reference to further detail of that allegation:
"(b) 29 July 2000 the obstruction of the South Bound carriageway of the A1 at Little Paxton;
(c) January 2002 her arrest for aggravated trespass at ERC when she gained access to the site by climbing under the perimeter fence;
(d) August 2002 when she and two other protestors blocked the entrance to the ERC site from 7 am until 9.10 am;
(e) August 2002 her conviction for activating the fence alarm and extracting electricity from the HRC site. It is relevant that a restraining order banning her from Cambridgeshire for 1 year was subsequently breached by her on 28 September 2002;
(f) 8 November 2002 the D lock incident in Brighton and her subsequent arrest for burglary theft of passes and theft of 3 bottles of beer."
Although it is not separately particularised, it is also part of the claimant's case against her that she has allowed to be used and continues to allow to be used, her home address as a postal address for correspondence to SHAC, that correspondence being automatically forwarded by the Post Office.
Returning to the chronology, on 10 April, at the same time as service of those documents, she received a letter from the claimants. On 16 April the matter was back before me on short notice and I continued the injunction in order to cover a particular event that was due to take place in Cambridge. She was served with notice of that. On 20 June 2003, Gibbs J made an order extending the injunction against all the defendants until trial and again a letter of service was sent to her enclosing that order.
On 7 July 2003, there was an application for default judgment against her, among other defendants, and that was served on her with a letter. Since this is the beginning of the part of the proceedings with which we are concerned today, I need to quote from that in greater detail. The application notice says at Part A as follows:
"We Lawson-Cruttenden & Co [the claimants' solicitors]
intend to apply for an order …
For an injunction under the Protection from Harassment Act 1997 against the first, fifth, sixth, seventh, eighth, tenth, eleventh and twelfth defendants
Because
The first, fifth, sixth, seventh, eighth, tenth, eleventh and twelfth defendants have not acknowledged service of these proceedings despite being properly served with the claim form on 10 April 2003. Since that date this case has been before the court on 2 occasions, namely before Mr Justice Pitchers on 16 April 2003 and Mr Justice Gibbs on 20 June 2003. On both 16 April and 20 June the court made injunctive orders against these defendants. The claimants now seek a permanent 'default' injunction against these defendants on the grounds that they have failed to acknowledge service."
That was accompanied by a letter telling the fifth defendant the time and place of the hearing.
On 14 July that hearing took place before Penry-Davey J and the application was adjourned until after the outcome of what were then current proceedings in the Court of Appeal involving the second, third, fourth and ninth defendants who had acknowledged service and had filed Defences. In December 2003, that appeal by those four defendants was abandoned, so the matter came back on 15 April for an application for default judgment against all defendants other than those four, and that was served on the fifth defendant by way of a letter dated 15 April 2004. The body of which is as follows:
"This is to inform you that various applications are due to be heard on this date [28 April 2004] on behalf of Huntingdon Life Sciences in their proceedings against Stop Huntingdon Animal Cruelty in which you have been cited as a defendant.
In those proceedings we are seeking a final injunctive order which will bind you.
The purpose of this letter is to inform you of our clients' intentions in this respect and to advise you to seek immediate legal representation."
On 26 May matters were back before Mackay J for a number of matters to be considered together. There were substantive matters that he had to deal with which concerned the defendants, two, three, four and nine, but there was also the application for what was described in the letter as a final injunctive order against this and the other defendants who had not acknowledged service.
In the course of that hearing, the judge made the order to which I shall have to return because it is the foundation of the application here today, not during the course of his judgment, which dealt with the other defendants, but in the course of argument after judgment was given. In the course of that, he made the order that is currently sought to be set aside. I shall, of course, return to that, but I continue with the history.
On 7 June 2004, notice was served by letter on the fifth defendant of commencement of the assessment of the bill of costs, one of the terms of the order of Mackay J being a costs order against the defendants who had not acknowledged service. That required the fifth defendant, if she wished to dispute the bill, to file points of dispute. She did so sometime during June (the document is undated). There were detailed points of dispute set out over several pages.
On 15 July 2004, the claimants served points in reply to her points of dispute. Correspondence continued during August, September and October between the parties about the question of the costs and finally by letter dated 15 October 2004, she agreed to submit to a costs order which was made on 19 October when a final costs certificate and order in the sum of just under £200,000 was made. On the same day an application was made for a charging order against her home address at 6 Boat Lane and an interim charging order was made.
On 22 October 2004, she made application to set aside the order of Mackay J on 26 May and it is that application which falls to be determined today. Against that background I turn to the arguments in the case.
The first point taken by Mr Lawson-Cruttenden, effectively on the morning of the hearing (which was Tuesday of this week) for the claimants is that the order that the fifth defendant seeks to set aside is not a default judgment at all but a final judgment on the merits. If that is so, then plainly it cannot be set aside by me; it could only be altered by appeal to the Court of Appeal. I turn, therefore, in considering this argument to the Civil Procedure Rules, in particular Part 12 which deals with default judgments. Rule 12.1 is as follows:
"Meaning of 'Default Judgment'
12.1 In these Rules 'default judgment' means judgment without trial where a defendant —
(a) has failed to file an acknowledgement of service; or
(b) has failed to file a defence."
The other sub-rule that is important for this argument is rule 12.4 which is as follows:
"Procedure for obtaining default judgment
(1) Subject to paragraph (2), a claimant may obtain a default judgment by filing a request in the relevant practice form where the claim is for —
(a) a specified amount of money;
(b) an amount of money to be decided by the court;
(c) delivery of goods where the claim form gives the defendant the alternative of paying their value; or
(d) any combination of these remedies.
(2) The claimant must make an application in accordance with Part 23 if he wishes to obtain a default judgment —
(a) on a claim which consists of or includes a claim for any other remedy; or
(b) where rule 12.9 or rule 12.10 so provides."
Clearly an application for an injunction does not fall into any of the categories specified in rule 12.4(1)(a) to (d). Therefore, to obtain a default judgment in a claim for an injunction, it is necessary to proceed, not by request under 12.4(1) but by application under 12.4(2) and that is exactly what the claimant did in this case. I have already quoted from the application notice showing that to be so. The claimants argue that the hearing before Mackay J shows that it was in fact a full hearing.
The judge mentions the application in his written judgment but does not...
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