Defamation case won by default judgement

[K9handler]

Hi all,

I wrote a long query a few months back regarding a crazy claim made against me and my wife which we only found out the details about when we found the ccjs on our credit files. The paperwork for the initial mcol claim was sent to an address we lived at 8 years ago, so we have been going through the process of trying to get the ccj set aside.
This is where it gets interesting. Yesterday, we had the hearing at the county court and the judge brought up in his initial summary of the case that the claimant had won by default but the fact that the main part of his claim was for defamation meant he would of been required to get our permission to have the case heard in the county court and not the high court which we'd obviously not given our permission because we only found out the details of the claim post the ccj being won by default as he used the mcol system and won £21k from us. The judge then asked our solicitors advocate if he'd got instruction from us prior to the hearing on whether we gave permission and because our solicitors advocate hadn't told us about this or seemed to realise this was a technical failure of the system he said no. The judge then seemed to suggest that if we didn't give our permission then he wouldn't have any jurisdiction and the claim would be struck out for not being put through the high court system but he didn't actually say that.
however, as the 30 minutes went on the claimant decided to produce what he called new evidence and said he was on holiday before so hadn't been able to submit it before the hearing. Unfortunately the judge decided to give him the benefit of the doubt and adjourned the case for a month so the claimant can get his statement of truth and ',ew evidence' properly created and sent to the court.
my question is, where does that leave us, the judge suggested once we see his new evidence we have right to reply before the new hearing but if we still don't give permission for thefosse to be heard in a county court at the next hearing, does that supersede everything else in terms of evidence and will the claim get struck put and costs awarded to us? Thanks

[atticus]

You may well be right, but consider the new evidence carefully and make sure that you reply to it if necessary. There may be arguments about costs that we don't know about.

You appear to have legal representation. Take your lawyers' advice. They know the case and the evidence, which gives them an advantage over us.

[K9handler]

I did have a solicitors advocate there but not sure how much of the legal defamation elements he understands because he didn't spot that was the main particular of claim before the hearing so just wanted to get a 2nd opinion. Thanks for yours though and yes we were going to fill in our reply as requested to make sure we are crossing all the t's

[R0b]

All seems a bit strange to me. The judge is definitely correct in saying that defamation claims cannot be brought in the County Court without your permission to do so.

The relevant legislation is Section 15 of the County Court Act 1984 which says:

The county court shall not, except as in this Act provided, have jurisdiction to hear and determine:
...
(c) any action for libel of slander.

Section 18 of the same Act is also relevant which says:

If the parties to any action, other than an action which, if commenced in the High Court, would have been assigned to the Chancery Division or to the Family Division or have involved the exercise of the High Court’s Admiralty jurisdiction, agree, by a memorandum signed by them or by their respective legal representatives that the county court shall have jurisdiction in the action, that court shall have jurisdiction to hear and determine the action accordingly.

In simple terms, the court cannot and should not proceed with any claim for defamation in the county court unless there is a signed document confirming that the parties have agreed to this in writing before the claim is issued. Verbal agreement, according to the above sections is not sufficient to enable a county court to hear this kind of claim. I would also point out that Practice Direction 7A, para. 2.9 of the Civil Procedure Rules essentially reiterates that position.

It sounds like your best option is to stick to your position that you never consented to the claim for defamation being issued in the county court and thus the claim should be struck out. There is also the potential issue that the claimant may not have complied with the pre-action protocols for defamation which is another failure but somewhat irrelevant since the court can't hear the claim as permission was not granted.

Of course if you have instructed a legal representative then you should really take their direction in what they say, though from what you've described, I can't see how the claim can continue unless the court chooses to transfer the case up to the High Court and let them deal with it.

You should be alert to the fact that this 'new evidence' might try and attempt to show that you consented to the claim being heard in the county court. Consider that evidence carefully as the evidence might be in the form of a letter, or an email or the claimant might argue it was verbal.

if I were in your shoes (and I don't have the full facts and information so you should discuss with your legal rep), I would want to be seeking an order from the court along the following lines:

- Default judgment set aside against both of you

- Claim dismissed entirely and judgment in your favour on the basis that the claimant wrongfully issued the claim in the county court, which has no jurisdiction to hear a claim unless the parties have agreed in writing prior to the commencement

- Costs on an indemnity basis plus costs of the earlier hearing (if possible but might not get it)