Grant of an injunction in a publication case where default judgment has been entered

Matt Perry

In Sloutsker v Romanova, Mr Justice Warby considered the principles for granting an injunction in a publication case where default judgment had already been entered.

The claimant was a Russian citizen with strong ties to England. He brought an action against a Russian journalist in respect of a number of defamatory publications which involved allegations that the claimant had attempted to contract to have the defendant’s husband killed, fabricated evidence for the criminal prosecution of the defendant’s husband and made bribes in connection with the hearing of that prosecution. The claimant had been granted permission to serve the claim form out of the jurisdiction and judgment in default was entered following the defendant’s failure to defend the claim. Subsequently however, the defendant wrote a letter to the court spelling out why she felt she was no longer able to engage with the court in relation to her case and equally made it clear that she would not attend the remedies hearing.

At the remedies hearing, the court firstly considered whether it was permissible to proceed in the defendant’s absence (to which the court concluded it was) and continued to rule on the award of damages.

The final issue for the court was whether it was appropriate, in the circumstances, to grant an injunction. Warby J firstly began by reminding himself that, since this was an instance of judgment in default, the claimant was entitled to such judgment as he was entitled to on his statement of case. He also acknowledged that an injunction was, of course, a discretionary remedy and must not interfere with freedom of expression more than was necessary or proportionate.  The gravity of the allegations meant that Article 8 of the European Convention on Human Rights (the right to respect for private and family life) was engaged. However, the judge held that the balancing exercise which would usually be involved was simpler in this particular case given this was an instance of judgment in default and therefore he could simply proceed on the basis that there was no defence or justification for the defendant’s actions.

There was no principle preventing the grant of an injunction against a foreign defendant and the defendant’s apparent belief in the truth of her statements and the lack of attempts by the defendant to refrain from further publication meant that the judge had a clear reason to anticipate further publication of the defamatory statements. Warby J also stated that the suspicion that the defendant would continue to make the publications even in the event that he granted an injunction was not a reason to refrain from granting the injunction.  He referred to South Bucks DC v Porter [2003] 2 AC 558, where Lord Bingham stated “there is not one law for the law-abiding and another for the lawless and truculent”.

In granting the injunction, Warby J did, however, acknowledge the limited impact it would have given that it would be an order directed at the defendant personally. He considered that the so-called Spycatcher principle (that a person who knows of an injunction but commits an act which defeats the court’s purpose is in contempt of court) did not apply to injunctions restraining the publication of a libel, which meant that no third party would be in contempt of court unless they actually assisted the defendant to breach the order by publishing defamatory statements in the jurisdiction. The order would be subject to the Babanaft proviso (after Babanaft International Co SA v Bassatne [1990] Ch 13) that third parties outside the jurisdiction would not be affected by it unless it was recognised or enforced by a foreign court.

Sloutsker v Romanova [2015] EWHC 2053 (QB)

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