Sang Youl Kim v Sungmo Lee
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE,Mrs Justice Steyn |
| Judgment Date | 09 February 2021 |
| Neutral Citation | [2021] EWHC 231 (QB) |
| Docket Number | Case No: QB-2019-0000086 |
| Court | Queen's Bench Division |
| Date | 09 February 2021 |
[2021] EWHC 231 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Steyn DBE
Case No: QB-2019-0000086
Richard Roberts (instructed by Andrew & Law Solicitors) for the Claimant
The Defendant did not appear and was not represented
Hearing date: 26 January 2021
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
This claim for libel arises from the publication by the Defendant of eight posts on Facebook and Instagram between 6 and 11 December 2018. At the material time, both the Claimant and the Defendant worked in the UK as football reporters and journalists for Korean media companies, delivering English and European football news to South Korea and to the Korean community in this jurisdiction. For the Claimant, this was a part-time job alongside his primary occupation as a church pastor in New Malden, Surrey.
The trial of this claim took place before me (via a remote video platform) on 26 January 2021. The Defendant, who had been debarred from defending the claim, did not attend the hearing and was not represented. The Claimant was represented by Mr Richard Roberts, of Counsel, to whom I am grateful for his assistance.
B. Application to come off the record
At the outset of the hearing, I determined an application by Murray Hays Solicitors, who had been acting for the Defendant, to come off the record. That application was filed on 24 November 2020.
Having been notified of the application, but in the absence of a court order confirming Murray Hays Solicitors' removal from the record, the Claimant's solicitors have sent all correspondence, court notifications, including the trial bundle and the notice of trial, directly to the Defendant, as well as to Murray Hays Solicitors.
In effect, the application to come off the record is an application pursuant to CPR 42.3 for an order declaring that the solicitors have ceased to act for their former client. The application notice itself incorporates the evidence, attested by a statement of truth, that the firm are no longer able to act on the Defendant's behalf. On the morning of the hearing, I was provided with a (revised) certificate of service confirming that the application was served by Murray Hays Solicitors on their former client, as required by CPR 42.3(2) (albeit it appears he may only have received it on 15 December 2020).
Accordingly, at the outset of the hearing, I made an order pursuant to CPR 42.3 declaring that Murray Hays Solicitors had ceased to act for the Defendant.
C. The Procedural History
The claim was issued on 10 January 2019. The particulars of claim, bearing the same date, were filed and served with the claim form. A defence was filed on 5 February 2019. An amended reply to the defence was filed on 30 July 2019.
A Costs and Case Management Conference was held on 11 June 2019 before Master Davison who made directions to trial. Those directions were varied by Master Davison by an order dated 27 January 2020, pursuant to which the trial was listed for a four-day hearing from 15 to 18 June 2020.
On 16 March 2020 the Defendant filed an application to strike out the claim. The trial was vacated and the Defendant's strike out application was heard by Mr Justice Julian Knowles on 26 June 2020. The application was dismissed: see Kim v Lee [2020] EWHC 2162 (QB). By an order dated 11 August 2020, affirmed on 3 September after the court had agreed to receive further written submissions on the question of costs, the Defendant was ordered to pay the Claimant's costs, summarily assessed in the sum of £20,652.
The Defendant did not pay the costs as ordered and so the Claimant made an application for an unless order. The application was heard by Master Eastman on 11 November 2020. Both parties were represented by counsel, as they had been at the hearing of the Defendant's strike out application. Master Eastman made an order (“the Unless Order”) in these terms:
“Unless by 4pm on 23 December 2020 the Defendant makes an interim payment of £10,000 towards the costs ordered in paragraph 1 of the order of Mr Justice Julian Knowles dated 3 September 2020 then the Defendant shall be debarred from defending the claim.”
On 5 January 2021 the matter was listed for a four-day trial, commencing on 15 March 2021. The Claimant's solicitors informed the court that the Defendant had not complied with the Unless Order. Consequently, on 6 January 2021, the listing office gave notice that the trial had been re-listed for one day on 26 January 2021.
The Claimant's solicitor, Andrew King, has confirmed in a witness statement dated 25 January 2021:
“9. The Defendant breached paragraph 1 of the Unless Order by failing to pay the sum ordered by the due date.
10. I can confirm that no payment has been received at the time of finalising this witness statement. As a result, the Defendant is debarred from defending the claim.”
D. Proceeding in the absence of the Defendant
The Defendant did not attend the trial. I therefore considered whether to proceed in his absence. In principle, it is permissible to proceed in the absence of a party, but the court has a discretion ( CPR 23.11) which must be exercised in a way that is compatible with the overriding objective.
In Pirtek (UK) Limited v Robert Jackson [2017] EWHC 2834 (QB) Warby J stated 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 freedom of expression’ unless the respondent is present or represented or the Court is satisfied that ‘(a) the applicant has taken all reasonable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.’”
I have taken the same approach. Section 12 of the Human Rights Act 1998 applies because the Claimant seeks relief which, if granted, would affect the exercise of the Defendant's right to freedom of expression. Section 12(2) provides:
“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.”
Mr King confirmed in his witness statement that, having been asked by Murray Hay Solicitors on 1 December 2020 to communicate directly with the Defendant, his firm served the following documents on the Defendant directly and on Murray Hay:
i) The Notice of Trial was served on 6 January 2021;
ii) A draft index of the trial bundle was served on 15 January 2021;
iii) The trial bundle was served on 19 January 2021.
Mr King stated that as Murray Hay Solicitors appear to have been without instructions since 10 November 2020, and the Claimant's solicitors had received no communication from the Defendant, “ it is unclear what part if any the Defendant wishes to take in the trial”.
I am satisfied that the Defendant has had notice of the hearing. The fact that he has been debarred from defending the claim does not affect his right to attend the hearing. However, the obvious inference is that he has chosen not to attend or be represented because he has been debarred from defending the claim.
Section 12(2)(b) of the Human Rights Act 1998 is obviously inapplicable but I am satisfied that s.12(2)(a) applies. There can be no doubt that the Defendant is aware of the claim. He has engaged in the proceedings, including serving a defence and unsuccessfully seeking to strike out the claim. He was represented by counsel at the hearing before Master Eastman of the Claimant's application for an unless order. It has only been since the Unless Order was made that the Defendant has disengaged. I am satisfied that the Defendant is aware of this hearing and he has chosen not to attend. In any event, the steps taken by the Claimant's solicitor demonstrate that the Claimant has taken all practicable steps to notify the Defendant of this hearing.
There is nothing at all before me, by way of evidence or otherwise, that suggests that I ought to adjourn this hearing or that it would be unfair to proceed in the Defendant's absence. Given the effect of the debarring order (which I address below), the Defendant's absence provided no good reason to adjourn the hearing and I concluded that it was appropriate to proceed.
The proposal in the Claimant's suggested trial timetable was that I should give an ex tempore judgment. However, I consider that in the Defendant's absence, and bearing in mind that he is now a litigant in person, I should hand down a written judgment and direct the Claimant to serve a copy of it, together with the resulting order, on the Defendant. That will ensure that the Defendant will not be hampered or delayed in getting to know my reasons. In doing so, I have followed the approach taken by Warby J in Pirtek at [24].
E. The Effect of the Unless Order
The Defendant failed to make an interim payment by 4pm on 23 December 2020 of £10,000 towards the costs he had been ordered to pay the Claimant by Mr Justice...
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