The High Court set aside default judgment against Hendrik Jan Jansen in a defamation case brought by Felix Grovit over a notice published in The Times, while requiring Jansen to pay costs and setting conditions for the proceedings to continue.
In a decision delivered on 17 January 2018, Mr Justice Binchy considered Jansen’s application under Order 13, rule 11 to set aside orders made in December 2014 and July 2015. The earlier orders had allowed Grovit to pursue an assessment of damages after Jansen did not enter an appearance, and authorised publication of a correction notice in an Irish newspaper. The judgment says that correction notice was not published.
The disputed Times notice concerned Dutch proceedings in which Grovit and his son, Stefan Grovit, had been summoned as witnesses. Jansen argued that the Irish proceedings had not been properly served and identified several other procedural defects. The judge found irregularities in service, in the jurisdiction provision endorsed on the summons, in the required affidavit of verification, and in the timing of the proceedings and default motion during the long vacation. He said the service defects were understandable, but remained irregularities.
The judge also found that Jansen knew of the Irish case and had chosen, on legal advice, not to engage with it. He rejected the allegation that Grovit had given inaccurate or incomplete information when seeking judgment. The failure to serve a document specifically titled “notice of plenary summons” was not, by itself, treated as a ground that required setting aside the judgment.
On the proposed defence, the judge said there was insufficient information to assess the privilege argument. However, he considered Jansen had a good chance of succeeding at trial on the argument that the notice was not defamatory: it said Grovit was required to attend as a witness and did not assert wrongdoing or indebtedness.
Despite describing the delay in bringing the application as extraordinary and unexplained, the judge concluded that the interests of justice favoured setting aside the judgment. He said there were four procedural irregularities, the proposed defence had a good prospect of success, the correction notice had not been published, and the Irish case had interfered with Dutch proceedings that were unrelated to the issues in the defamation case.
The court affirmed the earlier orders on costs, requiring Jansen to pay Grovit’s costs of obtaining judgment and his costs of responding to the application, both when taxed and ascertained. Grovit was permitted to amend the jurisdiction endorsement and was directed to swear and deliver an affidavit verifying the factual matters within 21 days of perfection of the order. Jansen was to deliver a defence within 21 days after that affidavit was delivered. The court barred him from pleading the failure to serve a notice of summons as a defence.