Smith v Kirkegaard

Factual and Procedural Background

This appeal concerns an order dated 13 November 2023 by Judge Nicklin refusing relief from sanctions imposed by an earlier order dated 3 October 2023, which dismissed a contempt application made on 23 June 2023.

The dispute originated from a libel claim brought by the Plaintiff, a blogger, against the Defendant, another blogger, regarding defamatory online publications made in 2018. The Defendant alleged that the Plaintiff published statements describing the Defendant as a supporter of child rape or paedophilia. The Plaintiff commenced proceedings in England and Wales, providing an address in Denmark and representing himself as a data scientist.

A preliminary trial in November 2019 found the publications to be defamatory opinions. Subsequently, the Plaintiff discontinued the claim in May 2020, and a final costs order was made against the Plaintiff in the amount of £26,668.43, which he failed to pay.

The Defendant made various enforcement attempts across Denmark and Germany, alleging the Plaintiff evaded service and moved addresses frequently, including changing his name and relocating to the USA. In June 2023, the Defendant applied for contempt proceedings alleging the Plaintiff had made a false statement of address verified by a statement of truth and failed to pay the costs orders.

The judge made procedural orders requiring the Defendant to file a sworn affidavit and personally serve the contempt application documents on the Plaintiff. The Defendant failed to comply fully with these orders, including not filing a properly sworn affidavit or certifying personal service. The judge dismissed the contempt application and refused relief from sanctions, reasoning that the contempt proceedings were hopeless due to inability to ensure the Plaintiff had notice and because the court lacked jurisdiction over the Plaintiff who was outside England and Wales.

The Defendant appealed this refusal of relief from sanctions. Permission to appeal was granted on condition that the Defendant's second affidavit be properly sworn. An alternative service order was made for the appeal proceedings. The Plaintiff did not appear or participate in the appeal hearing.

Legal Issues Presented

1. Whether the contempt proceedings were hopeless because the court could not be sure the proceedings would come to the Plaintiff's attention.
2. Whether the court could exercise its contempt jurisdiction over the Plaintiff without the Plaintiff submitting to that jurisdiction.
3. Whether failure to pay costs orders can be enforced by contempt proceedings.
4. Whether relief from sanctions should be granted to the Defendant for non-compliance with court orders.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff can be served by email and social media, which are effective methods given his evasive conduct.
• The judge erred in refusing an alternative service order by email, as the Plaintiff had actual notice through these means.
• The court has jurisdiction over the Plaintiff because he invoked the court's substantive jurisdiction by commencing the libel proceedings.
• The Plaintiff's failure to pay costs orders constitutes contempt of court, supported by evidence that the Plaintiff had the means to pay but deliberately failed to do so.
• The Defendant should be granted relief from sanctions despite procedural non-compliance, as the failure was not wilful and the court has an interest in addressing false statements verified by a statement of truth.
• The Defendant emphasized he is owed £50,490.20 including interest.

The Appellee did not appear or present arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the four main issues as follows:

1. Service and Notice: The court found good reasons to authorize alternative service by email and social media due to the Plaintiff's active evasion of personal service, including removal of names from mailboxes and deregistration of addresses. The court emphasized that alternative service could ensure the proceedings came to the Plaintiff's attention, making the contempt proceedings not inherently hopeless.
2. Jurisdiction: The court confirmed it has contempt jurisdiction over the Plaintiff because he invoked the court’s substantive jurisdiction by commencing libel proceedings in England and Wales. No further submission to jurisdiction is required for contempt proceedings related to those claims.
3. Enforcement of Costs by Contempt: The court held that failure to pay costs orders cannot be enforced by committal for contempt under English law, due to the Debtors Act 1869 and subsequent statutory framework. While non-payment may constitute contempt, imprisonment is not a lawful sanction. The court noted alternative enforcement mechanisms exist and upheld the judge’s conclusion on this point.
4. Relief from Sanctions: The court found the judge erred in refusing relief from sanctions solely based on hopelessness of the application. The Defendant’s failure to file a properly sworn affidavit and certify personal service was serious, but mitigated by prompt remedial steps and the court’s interest in addressing false statements verified by statements of truth. The court applied the Denton test and concluded relief from sanctions was appropriate, enabling the Defendant to pursue contempt proceedings based on the allegation of a false address.

The court also noted the Defendant’s difficulty in complying with formal affidavit requirements and suggested the Defendant would benefit from legal assistance.

Holding and Implications

The court ALLOWED the appeal against the order refusing relief from sanctions.

The court granted relief from the sanction of non-compliance with the order dated 18 September 2023 and remitted the hearing of the application for alternative service and further directions to a High Court judge.

The direct effect is to permit the Defendant to continue with the contempt proceedings, particularly concerning the allegation of false statements verified by a statement of truth. The court reaffirmed that non-payment of costs cannot be enforced by committal but left open the possibility of contempt proceedings on other grounds.

No new binding precedent was established beyond the application of existing legal principles to the facts of this case.