Jonathan Fox v Hannah Wiggins

JurisdictionEngland & Wales
JudgeMr Justice Julian Knowles
Judgment Date16 October 2019
Neutral Citation[2019] EWHC 2713 (QB)
CourtQueen's Bench Division
Docket NumberCase No: HQ17M01082
Date16 October 2019
Between:
Jonathan Fox
Respondent/Claimant
and
(1) Hannah Wiggins
(2) Ren Aldridge
(3) Nadia Javed
(4) Brittany McInerny
(5) CNF
(6) Katherine Lawrence (by her mother and litigation friend, Jill Lawrence)
Applicant/Defendant

[2019] EWHC 2713 (QB)

Before:

Mr Justice Julian Knowles

Case No: HQ17M01082

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Zoë McCallum (instructed by Advocate) for the Applicant/Defendant

Julian Santos (instructed by Clintons LLP) for the Respondent/Claimant

Hearing dates: 21 May 2019

Approved Judgment

The Honourable Mr Justice Julian Knowles

Introduction

1

In this case the Claimant sues the Defendants for defamation and harassment. He obtained judgment in default against the Sixth Defendant, Katherine Lawrence, when she did not file a Defence within the time permitted under CPR r 15.4 and did not comply with the order of Master Thornett of 4 May 2018. He has settled the case against the Fourth Defendant. The case is proceeding against the other Defendants.

2

There is before me an application dated 31 January 2019 by the Sixth Defendant (by her mother and litigation friend, Jill Lawrence) for:

a. a declaration that she lacks capacity within the meaning of CPR r 21.2(2)(c) (‘the Capacity Application’);

b. an order pursuant to CPR r 3.9 and 13.3 setting aside the default judgment and relief from sanctions (‘the Set Aside Application’).

3

The Claimant also raises outstanding costs matters relating to the Sixth Defendant's default in relation to the order of Master Thornett dated 4 May 2018 and the adjournment of the hearing that was originally listed for 17 December 2018 (‘the Reserved Costs Matters’).

4

Jill Lawrence became her daughter's litigation friend on 5 December 2018 when she filed a certificate of suitability indicating that she believed her daughter was a protected party (CPR r 21.5). A protected party means a party who lacks capacity to conduct proceedings (CPR r 21.1(2)(d)). If the Sixth Defendant is successful in obtaining a declaration that she lacks capacity, the effect under CPR r 21.3(4) will be that every step taken against her in the proceedings prior to the appointment of her litigation friend (other than service of the claim form) will have no effect unless I order otherwise. This includes the default judgment. Accordingly, she says that depending on the outcome of the capacity application, there may be no need for me to decide upon the Set Aside Application. Whilst the Sixth Defendant concedes that it would be appropriate for me to regularise the position in respect of the filing of the Particulars of Claim, she says that no other step in proceedings should be retrospectively validated. If the Capacity Application is unsuccessful then Jill Lawrence's appointment as litigation friend continues pursuant to CPR r 21.9(2) until it is ended by a court order.

5

The hearing was originally due to be a trial on the issue of damages and other remedies, following the order for default judgment. However, on 13 May 2019 the parties agreed to adjourn the issue of remedies pending determination of the Set Aside Application.

6

The Claimant (who is the Respondent to the application) is represented by Mr Santos. The Sixth Defendant is represented by Ms McCallum, who acts pro bono instructed by Advocate (formerly the Bar Pro Bono Unit). I am extremely grateful to her and to them for doing so.

7

There is a Confidential Annex to this judgment which the parties have that contains some redacted sensitive material about the Sixth Defendant's health. In my judgment it is not necessary for the understanding of this judgment for these short passages to be published. The Claimant did not object to their removal.

The factual background

8

Jonathan Fox, the Claimant, is a well-known musician, singer and songwriter. He is both a solo artist and a band member of ‘The King Blues’. He is commonly referred to by his stage name ‘Itch’. He has brought proceedings in harassment and defamation against the Defendants. They have accused him online – and therefore publicly — of sexual, physical and emotional abuse. Three of those women, including the Sixth Defendant, are his ex-partners.

9

The Claimant's case is that from late March 2016 onwards the Defendants, both individually and as a group, have engaged in a deliberate and coordinated course of conduct targeting him and so have perpetrated a persistent campaign of harassment, consisting of:

a. publishing a series of six false and defamatory publications containing intimate relationship details;

b. a prolonged and concerted campaign, mainly using Twitter (an online microblogging and messaging service), in which they have shared the Online Publications and made further statements about the Claimant; and

c. further acts by the Defendants against the Claimant, including (i) sending a menacing photograph (which included the Sixth Defendant) and a message to him saying, ‘we're gonna take you down’; (ii) messaging the Claimant's current partner about the allegations; (iii) approaching promoters and event organisers to dissuade them from booking the Claimant; (iv) disrupting the Claimant's band's show with a protest against the Claimant, and (v) encouraging direct ‘militant’ action against him.

10

The Sixth Defendant was 22 when she met the Claimant, and he was 32 or 33. The relationship ended in 2015. The Claimant says that the Sixth Defendant commenced her participation in this campaign by her involvement in the photograph I referred to earlier, which came shortly after the online publication by two of the other Defendants of defamatory material about him.

11

Shortly after these events, on 4 April 2016 the Sixth Defendant published a blog about the Claimant entitled ‘Jonny itch Fox/A collection of facts about Itch from the King Blues/Itch the Monster: a warning to the vulnerable’ (‘the Blog’).

12

The wording of the Blog is set out in [4.3] of the Particulars of Claim (‘PoC’). The Claimant says the Blog is plainly defamatory of him, accusing him, inter alia, of:

a. attacking the Sixth Defendant while she was pregnant by kicking her in the abdomen several times in an act of domestic violence aimed at killing her unborn child;

b. killing her unborn child by kicking her in the abdomen; and

c. being a manipulative domestic abuser and sexual predator and monster who preys on vulnerable and weak people.

13

The Second, Third and Fifth Defendants are jointly represented and contend through their pleadings that the allegations are true and were published in the public interest. The Sixth Defendant has yet to file a defence, but it appears from the evidence that her case – should I permit it to proceed on the merits – would be similar.

14

The Claimant seeks damages (including aggravated damages) for libel and harassment, an injunction to restrain the Defendants from further defamatory publications or harassment, and other relief, as well as orders under ss 12 and 13 of the Defamation Act 2013 (DA 2013). The Claimant has filed a witness statement in support, in which he explains that the allegations against him are completely untrue and have had severe consequences for him personally and professionally. He says that the Defendants' campaign has received attention in a large number of influential music blogs; that it has led to other artists denouncing him and refusing to work with him; that music magazines have refused to publicise his band or review their work; and that his record label has refused to spend further money on his band; and that petitions have been signed and sent to festivals and venues pressuring them to drop the Claimant and his band from their line-ups. He says it has led to him feeling suicidal, and that it has significantly impacted on his relationships with his son and his current partner.

15

The PoC were filed in August 2017, but proceedings were stayed whilst the Fifth Defendant's allegation of rape and sexual assault against the Claimant were investigated by the police. Accordingly, there has not yet been a substantive trial against any of the Defendants.

The procedural history

16

In summary, judgment in default has been entered against the Sixth Defendant. However, she says that this was at a time when she lacked capacity (and so was a protected person for the purposes of CPR Part 21) and did not have a litigation friend. She therefore seeks a declaration as to her lack of capacity; seeks to have the judgment in default set aside and relief from sanctions; and argues that I ought not to retrospectively regularise any steps in the proceedings pursuant to CPR r 21.3(4), save for the service of the Particulars of Claim.

17

The history is as follows.

18

On 14 December 2016, the Claimant sent a Pre-Action Protocol letter to the Sixth Defendant. This set out the claim in detail and advised her to obtain independent legal advice. The Claimant says that in contrast with the five other defendants, the Sixth Defendant did not reply to this letter.

19

The Claim Form was issued on 28 March 2017. Following issue of the claim, the Claimant's solicitors say they sought to engage with the Sixth Defendant but without success. Eventually, they obtained an order (a) extending the time for service of the Claim Form and (b) permitting service using the Sixth Defendant's email address.

20

The Claimant served the Claim Form and PoC on the Sixth Defendant on 2 August 2017. She acknowledged service on 15 August 2017, meaning that her Defence was due to be served by 1 September 2017.

21

On 29 August 2017, the Sixth Defendant confirmed to the Claimant that she believed her Defence was due on 4 September 2017. On the following day, the Claimant proposed an extension of time for service until 29 September 2017, to allow for settlement discussions. On 4 September 2017 the Sixth Defendant's mother (and now...

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