Muyang Matilda Epse Hills v Angie Bridget Fomukong Epse Tabe (Aka Esanza Mateke, Bridget Benjamin)
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 17 February 2022 |
| Neutral Citation | [2022] EWHC 316 (QB) |
| Docket Number | Case No: QB-2021-001130 |
| Court | Queen's Bench Division |
[2022] EWHC 316 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(Sitting as a Deputy Judge of the Queen's Bench Division)
Case No: QB-2021-001130
Andrew Otchie (instructed by JBP Solicitors) for the Claimant
The Defendant did not appear and was not represented
Hearing date: 9 February 2022
Richard Spearman Q.C.:
Introduction and nature of the hearing
This is a remedies hearing in a claim for libel and harassment. Both parties are members of the Cameroonian community in the United Kingdom. The Claimant is a mental health nurse who lives and works in Northampton. The Defendant operates a number of Facebook accounts and, in addition, a YouTube news channel called BB TV, which specialises in broadcasting in Pidgin English and has followers both in the United Kingdom and internationally. The Claimant has never met the Defendant and has had no dealings with her other than those which have given rise to the present proceedings. It is her case, however, that on or about 17 November 2020 she first learned that the Defendant was posting unpleasant and derogatory material about her online, and that in spite of her efforts to get the Defendant to desist and the commencement and prosecution of the present proceedings, the Defendant has persisted in a campaign of abuse and intimidation against her ever since, including at the same time as the hearing.
The Claimant was represented at the hearing by Andrew Otchie. The Defendant did not appear and was not represented. This was in line with the Defendant's previous stance in the proceedings, in which she has declined to take any part. The Claimant contended that the Defendant was aware that the hearing was taking place and had decided not to participate. In particular, on 8 February 2022, the day before the hearing, the Claimant's solicitors sent the Defendant by email “a copy of the Claimant's statement of costs filed with the court ahead of tomorrow's hearing”. That email was sent to an address provided by the Defendant online, bridgetbenjaminproduction@hotmail.com, both on her YouTube channel, and, I was told, in connection with her Paypal account. In addition, both Mr Otchie from the Bar and the Claimant during her oral evidence stated that the Claimant was posting material about the hearing while it was taking place.
The claim was begun by claim form dated 26 March 2021. This contains the following brief details of the claim: “A Claim for defamation and harassment further to statements and publications made from 17 November 2017 and ongoing”. The date of 17 November 2017 seems to be a mistake for 17 November 2020. Under “Value” the claim form states “The Claimant expects to recover a sum between £5,000 and £10,000”. The Particulars of Claim are undated but it appears (see below) they were served at the same time as the claim form. The prayer for relief includes a claim for: “Damages, including aggravated and exemplary damages, exceeding £5,000 but not exceeding £10,000”. The Defendant failed to file an Acknowledgment of Service or a Defence, and the Claimant obtained a default judgment by Order of Master Eastman dated 4 May 2021.
That Order stated that damages would be assessed at a Case Management Conference before Master Eastman on 1 November 2021. On that date, however, Master Eastman did not assess damages. Instead, he made an Order which provided (among other things) that (i) the Claimant's costs budget was approved in the sum of £57,540, (ii) the Claimant should file and serve witness evidence of fact by 29 November 2021, (iii) the Claimant should file and serve a schedule of loss by 13 December 2021, (iv) any counter-schedule of loss was to be filed and served by 7 January 2022, (v) the Claimant was permitted to rely upon a report of Dr Fanka dated 20 October 2021 as expert evidence, and (vi) the assessment of the Claimant's damages should be tried as in-person hearing by a Judge of the Media and Communications List on the first available date between 7 February and 25 March 2022. The Claimant served a witness statement and a schedule of loss in accordance with that Order, but the Defendant did not serve a counter-schedule of loss or otherwise take any steps pursuant to that Order.
On 9 December 2021, the Claimant's solicitors sent an email to the Court asking if the date for the hearing of the assessment of damages could be changed from 10 February 2022 as the Claimant's Counsel had another commitment on that date. On 10 December 2021, the Court replied saying that the hearing had been listed on 9 February 2022. It is apparent from those emails that there must have been some other communication concerning the hearing date. However, those emails do not appear to have been copied to the Defendant. Further, there was no evidence before me that any other communication concerning this hearing date had been sent to the Defendant either by the Claimant's solicitors or by the Court (although I was shown proof of posting to the Defendant of (i) a letter before claim on 22 February 2021, (ii) the claim form, Particulars of Claim and a response pack, on 29 March 2021, (iii) a second copy of the Order dated 4 May 2021, on 5 October 2021, and (iv) the Order dated 1 November 2021, on 15 November 2021). Nevertheless, as set out above, I was satisfied that the Defendant knew about the date. In this regard, her failure to attend the hearing or communicate about it seemed to be in keeping with her lack of engagement throughout.
In those circumstances, I decided that it was appropriate to proceed with the hearing in the absence of the Defendant. This was, however, subject to two further points.
First, in accordance with the Order of Master Eastman of 1 November 2021, the Claimant served a schedule of loss dated 27 October 2021 in which she sought damages of no less than £15,000 for defamation and damages of no less than £13,000 for personal (psychiatric) injury/pain suffering and loss of amenity. The latter claim was based on the report of Dr Fanka, which concludes (in summary) that as a result of the publications and conduct complained of in these proceedings the Claimant sustained emotional and psychological injuries such that she developed an adjustment disorder and became suicidal, withdrawn and suffered from severe stress/anxiety and depression. However, the Claimant had made no application for permission to amend the claim form pursuant to CPR 17.1(2)(b) to increase the upper limit of the amount claimed in these proceedings from £10,000 to “no less than” £28,000. I indicated that if the Claimant wished to pursue a claim for an increased amount, such an application would need to be made, any additional court fee would need to be paid (or an undertaking to pay it would need to be given), and notice would need to be given to the Defendant. In these circumstances, the Claimant decided at the hearing to limit her claim to £10,000.
Second, in the light of the provisions of CPR 39.3 and the Human Rights Act 1998, in order to safeguard against the risk of injustice to the Defendant, and in spite of the prospect that this might result in these proceedings being further prolonged and in the Claimant being required to incur further costs, I indicated at the hearing that I would proceed in the absence of the Defendant on the basis that any Order that I made should include provisions which reflect CPR 39.3(3)-(5):
“(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.
(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.
(5) Where an application is made under paragraph … (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.”
I was not addressed as to whether section 12 of the Human Rights Act 1998 applied to the hearing before me, on the basis that the Claimant was seeking relief which, if granted, would affect the exercise of the Defendant's right to freedom of expression. However, it seemed to me at least arguable that it did apply, and, accordingly, that section 12(2) was in point:
“If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied –
(a) that the applicant has taken all practicable steps to notify the respondent; or
(b) that there are compelling reasons why the respondent should not be notified.”
On this basis, the approach which I adopted accorded with that indicated by Warby J in Pirtek (UK) Limited v Robert Jackson [2017] EWHC 2834 (QB) at [20]:
“I took a two-stage approach, considering (1) whether the defendant had received proper notice of the hearing and the matters to be considered at the hearing; (2) if so, whether the available evidence as to the reasons for the litigant's non-appearance supplied a reason for adjourning the hearing. I considered it necessary to bear in mind that the effect of s.12(2) is to prohibit the Court from granting relief that ‘if granted, might affect the exercise of the Convention right to...
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