Oliver Smith v Emil Kirkegaard also known as William Engman

Hearing date: 5 June 2024

Approved Judgment

This judgment was handed down remotely at 12.30 on 21/06/2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This is an appeal against an order dated 13 November 2023 made by Mr Justice Nicklin (the judge) refusing to grant relief from the sanction imposed by order of 3 October 2023 dismissing a contempt application dated 23 June 2023.

At the end of the appeal Lord Justice Bean announced that the appeal would be allowed for reasons to be given later. These are my reasons for allowing the appeal.

Relevant facts

Mr Smith and Mr Kirkegaard are both bloggers. They have disagreed online. On 11 January 2018 Mr Smith published a tweet which referred to Mr Kirkegaard. On 3 February 2018, a blog was written by a third party, Anatoly Karlin, criticising things that Mr Smith had written. The blog attracted a significant number of comments from internet users, including Mr Smith. Mr Smith published three posts which referred, among others, to Mr Kirkegaard. Each of the posts described Mr Kirkegaard as a supporter of child rape or paedophilia.

On 7 December 2018, Mr Kirkegaard brought a claim for libel against Mr Smith for these four publications, being the tweet and the three posts. On the claim form Mr Kirkegaard provided his address as: Silkeborgvej 53; 8800 Viborg; Denmark. On the attached Particulars of Claim, verified by a statement of truth signed by Mr Kirkegaard, it was pleaded at paragraph one that Mr Kirkegaard was a data scientist.

Mr Smith contends that Mr Kirkegaard was not living at the address provided on the claim form, and that Mr Kirkegaard was living in the United States of America at the time. The address was relevant because, as the address given was in the European Union and at that time the UK remained part of the EU, it affected Mr Smith's ability to seek security for the costs of Mr Kirkegaard's claim. Mr Smith also contends that Mr Kirkegaard was not a data scientist.

There was a trial on 26 November 2019 of preliminary issues as to the meaning of the four publications and whether they were fact or opinion before Mr Justice Julian Knowles. Both Mr Smith and Mr Kirkegaard were represented by counsel and solicitors at the hearing. By a judgment dated 11 December 2019 ( Kirkegaard v Smith [2019] EWHC 3393 (QB)) Mr Justice Julian Knowles set out the meaning of the posts and found that they were expressions of opinion defamatory of Mr Kirkegaard.

An order was made on 10 December 2019 that Mr Kirkegaard pay half of Mr Smith's costs of the trial of a preliminary issue, summarily assessed in the sum of £13,500, and payable within 14 days of the date of the order. The sum was not paid. Mr Smith stated that the costs order was amended on 23 March 2020 to provide that Mr Kirkegaard would pay the amount owing in monthly instalments of £500, but the amended order is not in the bundles before the court.

In practical terms, the effect of Mr Justice Julian Knowles' finding that the posts were expressions of opinion meant that, in the light of previous publications on sexual relations with children by Mr Kirkegaard on the internet, Mr Kirkegaard's action for libel was very likely to fail. Mr Kirkegaard discontinued his claim on 21 May 2020, meaning that Mr Smith was entitled to his costs of the action.

A final costs certificate was issued by the Senior Courts Cost Office on 28 September 2021 in the amount of £26,668.43 to be paid by Mr Kirkegaard to Mr Smith. This was endorsed with a penal notice.

Mr Kirkegaard failed to make any payments under the costs orders. Mr Smith has made various attempts to enforce the costs order and, it appears, instructed attorneys in Denmark and Germany. These attempts include: initiating enforcement proceedings in Denmark; investigating from public records Mr Kirkegaard's real address; initiating enforcement proceedings in Germany; obtaining a garnishee order in Germany; serving Mr Kirkegaard through his company address under the German Commercial Code; applying to the Copenhagen City Council for a requisition against Mr Kirkegaard's bank account; and filing an application that Mr Kirkegaard attend court for questioning about his assets.

In response, Mr Kirkegaard is alleged by Mr Smith to have: evaded service by hiding his location generally and removing his name from the mailbox and vacating the property he was living in in Kiel; deregistered from his German company address in July 2023; closed his Nordea Bank account on 15 March 2024 and transferred the savings; and failed to attend in answer to a summons.

Mr Smith has also alleged that Mr Kirkegaard was living in the USA in 2018 when the proceedings commenced, based on a Facebook post entry. Mr Smith alleges that Mr Kirkegaard has repeatedly moved addresses in Denmark and Germany so as to evade enforcement and bailiffs. It appears that the authorities in Denmark found that Mr Kirkegaard had changed his name from Emil Kirkegaard to William Engman and moved to Germany on 1 May 2021.

The application to commit for contempt

On 23 June 2023 Mr Smith, who was by then acting in person, made a contempt application. It appears from later orders made by the judge, that the application was filed with the court on 7 July 2023. The contempts were alleged to be that Mr Kirkegaard: (1) made a false statement verified by a statement of truth regarding Mr Kirkegaard's named address; (2) failed to pay a costs order dated 10 December 2019 for £13,500; and (3) failed to pay a final costs order dated 28 September 2021 for £26,668.43.

The orders made by the judge and further applications

On 21 July 2023 the judge made an order on the papers that the contempt application be listed for a directions hearing on 24 October 2023 and that Mr Smith: “(3) … by 4.30 pm on 25 August 2023 … must: (a) file a sworn affidavit in support of the Contempt Application; and (b) personally serve a copy of the Order upon the Defendant together with a further copy of the Contempt Application and the sworn affidavit; (4) by 4.30 pm on 1 September 2023, …. must file a certificate of service confirming compliance with paragraph 4(b) above”. As this was an order made without a hearing, permission was given to either party to vary or discharge the order by application notice.

The judge recorded under “Reasons” in the 21 July 2023 order that:

“(C) … the applicant is alleging two things (1) a false statement verified by a statement of truth; and (2) failure to comply with costs orders. In respect of (1) the applicant requires the court's permission before he can proceed with a contempt application. The Court will consider whether the applicant should be given permission at the directions hearing. In respect of (2) the Court does not usually permit costs orders to be enforced by way of contempt application. As a preliminary step, before permitting such enforcement, the Applicant would have to show that the relevant costs order was endorsed with a Penal Notice – see CPR 81.4(2)(e).

(D) More generally, the Court will want to address the question of the jurisdiction in which the Defendant is domiciled and whether, in the circumstances, there is any prospect of the Court being able to exercise jurisdiction over him for the purposes of the Contempt Application.

(E) The “affidavit” filed by the Applicant does not comply with the requirements for an Affidavit. These are set out in CPR PD 32 paragraphs 4–9…

(F) I have ordered the applicant to serve personally the documents … That is because contempt applications are important, and the defendant to such an application must be kept informed of the court's proceedings”.

On 18 August 2023, Mr Smith submitted a request of the court's permission to proceed with the contempt application under CPR 81.3(5b) and filed a document exhibits bundle.

Also on 18 August 2023, Mr Smith made a second affidavit, in which he apologised for the incorrect form of his first affidavit and for his failure to seek permission before making his committal application. He set out details of his attempts to locate Mr Kirkegaard. That affidavit was not witnessed by a solicitor or commissioner for oaths until 15 March 2024, pursuant to the order of Lord Justice Warby referred to below, which was after the judge had dismissed the contempt application.

On 21 August 2023, Mr Smith made a written application requesting service by an alternative method or at an alternative place under CPR 6.15(1). In his evidence set out on the application notice, Mr Smith stated that it had been impossible to serve the contempt order on Mr Kirkegaard by personal service within the deadline. This was said to be due to Mr Kirkegaard's evasive actions and failure to notify the court of his changes of address. Mr Smith said he had sent the contempt application, order and affidavit electronically to three of Mr Kirkegaard's known email addresses, as well as by post to Mr Kirkegaard's mother's house and to Mr Kirkegaard's vacated property in Kiel. Mr Smith further stated that he had alerted Mr Kirkegaard to the contempt proceedings on social media.

On 18 September 2023 the judge made an order on the papers, having reviewed CE file (the court's digital filing system) and recorded “that the claimant...