England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/05/2012

Mrs Justice Slade:

1. Judgment for the Claimant was given on 6^th March 2012 in her claim against the Third Defendant, Mr Burby, for injunctive relief restraining him from publishing or disclosing her private or confidential information and from harassing her and for damages for breach of confidence, misuse of private information and harassment. There have been many steps in these proceedings since the granting on 9^th September 2009 of an interim injunction against Mr Burby, the Third Defendant, a public relations consultant engaged by him, and the First Defendant's company, the Second Defendant.
2. On 11^th July 2011, the day the hearing of the claims against all three Defendants was due to start, the First and Second Defendants applied for an adjournment on notice on grounds of the First Defendant's ill health. Without notice, Mr Burby also applied for an adjournment. He left court on 12^th April 2011 and did not return. Mr Burby and his family live on Jersey. By judgment given on 13^th July 2011, the First and Second Defendant's application was granted and Mr Burby's refused. Counsel who had represented Mr Burby solely for the purpose of the application for an adjournment and for the purpose of an application regarding evidence took no part in the substantive hearing. The hearing proceeded on 14^th – 15^th and 18^th – 20^th July 2011 in Mr Burby's absence with the safeguards set out in the judgment.
3. Having been unsuccessful in his application for an adjournment heard on 11^th and 12^th July 2011, Mr Burby on 18^th July 2011 applied again for an adjournment stating:

"(a) I have been unable to attend court since 12 July 2011 on account of a threat to the life/safety of my wife and family."

In his statement in support of the adjournment application heard on 18^th July 2011 Mr Burby stated at paragraph 31:

"...my wife, family and I are the victims of a sickening threat to our safety by someone intent on intimidating us into not taking part in the trial."

He drew parallels between the threat received by his wife and that made to X before his murder and stated at paragraph 32 'I naturally need to remain in Jersey'.

4. The application for an adjournment made on 18^th July 2011 was refused. Mr Green QC submitted that whilst it was made clear in the ruling that the application was refused because of lack of sufficient supporting evidence, the judgment did not inform Mr Burby that he could make a further application for an adjournment supported by evidence. It was stated in the judgment that if he felt unable to attend trial Mr Burby could apply to participate by video link.
5. Mr Green QC submitted that it was reasonable for Mr Burby not to make a further application to adjourn the trial against him, this time supported by further evidence. He had failed in every application he had made to the courts.
6. By application notice lodged on 4^th April 2012 Mr Burby sought an order pursuant to CPR 39.3(3) to set aside the judgment of 6^th March 2012. He also applied for permission to appeal. Reference may be made to the judgment of 6^th March 2012 ([2012] EWHC 496 (QB)) which Mr Burby seeks to have set aside, in which the facts and issues relating to the claims are set out. The terms of the final order on injunctive relief was also to be determined. The hearing of these matters began on 20^th April 2012 and resumed on 9^th May. On 2^nd May 2012, shortly before the resumed hearing of the applications, Mr Burby issued an application for an order pursuant to CPR 32.7 for permission to cross-examine Mark Bateman, one of the Claimant's solicitors, on his 11^th witness statement. Mr Green QC appeared for Mr Burby and Mr Eardley for the Claimant.

Applications under CPR 39.3(3) and CPR 32.7

7. CPR 39.3 provides:

"(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside.

(4) An application made under paragraph … (3) must be supported by evidence.

(5) When an application is made under paragraph ...(3) by a party who failed to attend the trial, the court may grant the application only if the applicant-

(a) acted promptly when he found out that the court had exercised its power to ...enter judgment ...against him;

(b) had a good reason for not attending the trial; and

(c) had a reasonable prospect of success at the trial."

Submissions

8. Mr Green QC on behalf of Mr Burby contended that all three conditions listed in CPR 39.3(5) for setting aside the judgment of 6^th March 2012 were satisfied in this case.
9. Mr Green QC submitted that Mr Burby had acted promptly on learning of the judgment of 6^th March 2012. He applied to set aside the order within just over three weeks after judgment. Mr Green QC gave the example of Watson v Bluemoore Properties Ltd [2002] EWCA Civ 1875 where the Court of Appeal held that an application to set aside made within six weeks of judgment was sufficiently prompt in a case which was 'by no means straightforward'.
10. It was said that the reason Mr Burby did not attend the trial was that on 12^th July 2011 his wife had received at home in Jersey a photograph of herself on which the words 'We know. You have been warned' were superimposed. She had been upset by the message and the photograph and contacted Mr Burby in London. He returned to Jersey on that day and did not attend the trial of the claim against him. In a letter to the Court dated 13^th July 2011 headed 'Strictly Private and Confidential', Mr Burby stated that his and his wife had been

"warned off continuing in our fight for justice against the Claimant and her family."

It was said that Mr Burby did not return to England to take part in the trial because of the threat implicit in the message on the photograph. His wife had reported the matter to the police in Jersey and they had put measures in place for the protection of Mrs Burby and his family.

11. Mr Green QC submitted that I should find that the threat was a good reason for Mr Burby not to attend the trial.
12. Mr Green submitted that the witness statements filed by Mr Bateman for the purpose of the hearing of the application to set aside the judgment suggested that Mr Burby was not telling the truth about the reason for his non-attendance at trial. Further, Mr Bateman's evidence indicated that he may have known on 18^th July 2011 when the application for an adjournment was being considered, that the Burbys had made a complaint to the Jersey police about the threatening photograph but had failed to inform the court of this. He wished to cross examine Mr Bateman on these matters.
13. Mr Green QC also wanted to cross-examine Mr Bateman about the circumstances in which he obtained an email from DS Thomas of Jersey Police Special Branch of 16^th April 2012 exhibited to his 11^th witness statement in which DS Thomas wrote:

"I can confirm, despite what Mr Burby may claim, that the States of Jersey Police have never told Mr Burby that he should not travel."

Mr Burby had said in paragraph 12 of his statement of 29^th March 2012 in support of his application to set aside the judgment of 6^th March 2012:

"My wife met with DC Mally Hamon from Jersey Special Branch and provided them with a full statement of what transpired. She and I were specifically advised by Jersey Police not to travel to the British Mainland given what had happened to [X]."

14. As for whether an Order should be made enabling Mr Bateman to be cross examined, Mr Eardley contended that on the issue of whether Mr Burby had a good reason for not attending the trial, the state of the evidence fell within category (iv) considered by Lord Neuberger in paragraph 53 of Royal Bank of Scotland v Pereira [2011] 1WLR 2391. In such cases cross-examination should only be permitted in exceptional cases. Mr Eardley submitted that this was not an exceptional case and cross-examination of Mr Bateman should not be permitted.
15. Pereira provides recent authoritative guidance on the principles applicable to applications under CPR 39.3 and whether oral evidence should be heard. Lord Neuberger held at paragraph 53:

"In the great majority of cases, a judge hearing such an application should not allow oral evidence on the basis that he or she can properly (i) accept all the factual evidence given by the applicant, and allow the application, (ii) dismiss the application even on the assumption that all the applicant's evidence is true, (iii) allow the application even though of the view that some of the applicant's evidence is or may be untrue, or (iv) reject some (or even all) of the applicant's evidence on the basis that it is inconsistent or inherently improbable, and accordingly dismiss the application."

16. There was a stark conflict of written evidence as to whether the Burbys had been advised by Jersey police not to travel to the UK mainland. Since that factual dispute was of importance in determining whether Mr Burby had good reason not to attend the trial I ruled that he, Mrs Burby and Mr Bateman could be cross-examined.
17. Mr Green QC submitted that the oral evidence given by Mrs Burby established that DC Hamon had advised her not to travel to the mainland. She understood that she was to pass this message to her husband and was to ask him to telephone the officer when Mr Burby returned to Jersey. Mrs Burby relayed this advice to her husband. Mr Burby had never said that he was told directly by DC Hamon not to leave the island.
18. Mr Green QC submitted that having regard to the belief of Mr and Mrs Burby that they were being threatened if they participated in the trial and that the police were investigating the threat, that the police had put security measures in place and had advised the Burbys not to travel, Mr Burby had good reason not to attend the trial.
19. As for whether attendance at trial would have given Mr Burby an arguable case on the merits, Mr Green QC identified two bases on which it was contended that Mr Burby's attendance at trial could have made a difference to the outcome. First, evidence from and on behalf of Mr Burby and cross-examination of the Claimant and her witnesses about his report to police and his conduct at the time of events in 2009 taking into account the hibernation of website A would have been material to deciding whether the report to the police in 2009 was in fact an act of harassment. This was relevant because it was said to be an important part of the Claimant's case and affected Issues 1, 3, 6 and 8 identified in the List of Issues for Trial. Mr Burby had commented on issues 1, 3, 6 and 8 in a letter of 15^th July 2011 which was not taken into account as he did not attend trial as explained in paragraph 13 of the judgment of 6^th March 2012.
20. Secondly Mr Green QC contended that Mr Burby's attendance at trial would have led to establishing in the light of evidence including that of witness A and that of the Claimant and her witnesses tested in cross-examination, the conduct of the parties and that of the Claimant's advisers in their dealings with each other. This would have enabled a proper view to be formed of their credibility and of the reasonableness of Mr Burby's conduct when considering the harassment claim. Mr Green QC submitted that Mr Burby's conduct should have been viewed in the context that he felt let down by the Claimant. Although he had assisted her in litigation, she had failed to secure payment of his judgment debt as he alleged she had agreed. He was to lose his home in circumstances in which he considered the Claimant's solicitors had behaved badly. It was submitted that such evidence could have affected the view the court took of his conduct.
21. Mr Green QC submitted that a conclusion on these two areas on which evidence would have been given if Mr Burby had attended trial would also have affected the view to be taken of Mr Burby's conduct in balancing Article 8 and Article 10 rights and the discretionary grant of injunctive relief. All these factors were said to give Mr Burby an arguable case on the merits.
22. Mr Burby suggested that the fact that the Claimant did not seek to strike out his Defence, as she had his counterclaim, suggested that his Defence did have a reasonable prospect of success.
23. Mr Eardley submitted that Mr Burby has failed to satisfy all or indeed any of the conditions listed in CPR r 39.3(5) for setting aside a judgment.
24. Mr Burby had failed to act promptly in applying to set aside the judgment. He had been made aware in mid January 2012 that the draft judgment was ready for circulation to the parties. He had made applications with regard to the circulation of the draft judgment. He was well aware that judgment was to be handed down. A delay of three weeks in making the application to set aside was not acting promptly.
25. Mr Burby had not shown that he had good reason for not attending the trial. In accordance with the judgment of the Court of Appeal in Frank Henry Brazil v Frank Brazil [2002] EWCA Civ 1135, the court is to ascertain from the evidence what the true reason for non attendance at trial was and, looking at the matter in the round, to ask whether that reason is sufficient to entitle the applicant to invoke the discretion of the court to set aside the order.
26. Mr Eardley submitted that the evidence of the reason for Mr Burby's non-attendance at trial is no stronger than that put before the court in support of his unsuccessful application for an adjournment on 18^th July 2011. Mr Eardley referred to the email exchange the Claimant's solicitor had with Jersey police in which was DC Hamon's supervisor, DS Thomas' email of 16^th April 2012. Further, Mr Eardley pointed out that Mrs Burby candidly explained that DC Hamon told her that he would not give evidence that he had advised her not to leave the island. Mrs Burby rejected the suggestion by Mr Eardley that she may have misunderstood the police to be giving her this advice because they were putting protective measures in place in Jersey but could not do so outside Jersey. Mrs Burby maintained that she was advised by police not to leave the island. Mr Eardley pointed out that in his letter to the court of 13^th July 2011 explaining that he was not attending court because of a threat to him and his family, Mr Burby did not state that he had been advised by the police not to leave Jersey.
27. Mr Eardley drew attention to the fact that Mr Burby had on many occasions sought to have the proceedings against him stayed or adjourned. In the period leading up to the trial, on 27^th May 2011 Mr Justice Tugendhat heard Mr Burby's application to vacate the trial date of 11^th July 2011 and have the case re-listed with a greatly increased time estimate of 5-6 weeks. The application was refused as was on 6^th July 2011 an application to the Court of Appeal for permission to appeal. On 28^th June 2011 Mr Burby made a further unsuccessful application to adjourn the trial. An application by Mr Burby on the first day of the trial, 11^th July 2011 was dismissed on 13^th July 2011. On 18^th July 2011 Mr Burby made a further application to adjourn. The reason for the application on 18^th July 2011 to adjourn was that relied upon in support of the application to set aside the judgment.
28. Mr Eardley submitted that the threat in the photograph was not the reason Mr Burby did not attend the trial. He had made many attempts to have the trial adjourned. He had changed solicitors shortly before the trial was due to start and then had none. Perhaps he did not feel ready for the trial.
29. Mr Eardley drew attention to a comment by Mr Burby's then counsel during his application for an adjournment on 11^th July 2011:

"If your Ladyship doesn't grant the adjournment, my involvement in the case will cease, and it seems inherently likely that my client's involvement will also cease. He sees himself confronted with the trial bundles and with a skeleton argument which takes a formidable array of points, both factual and legal, and many of which are procedural and – I don't mean this is a derogatory sense – pleading points. He can't get his head around that and it's unlikely that he'll take any further part." (Transcript page 22)

as indicating that he had no intention of participating in the trial if his application were refused. This view was expressed on his behalf the day before the threatening photograph was received by Mrs Burby.

30. Mr Eardley submitted that whilst it was understandable that Mr Burby flew back to Jersey on 12^th July 2011, once measures were in place for his family's security he could and should have returned to London to participate in the trial by attending in person or participated by video link from Jersey. Further Mr Eardley submitted that, even if Mr Burby believed there was a link between the threat and his attendance at trial, the court has to judge objectively the sufficiency of his reason for not participating in the trial. If they had advised that he should not travel it was Mr Burby's responsibility to revert to the police to have their advice as to whether he could attend the hearing in London. Mr Burby gave evidence that he did travel within a few weeks of 12^th July 2011 apparently without seeking advice from the police. Mr Burby had not shown a good reason for not attending the trial.
31. As for the third limb to be satisfied by an applicant wishing to set aside a judgment under CPR 39.3(3), Mr Eardley contended that Mr Burby did not have a reasonable prospect of success at the trial or 'an arguable case on the merits'.
32. In respect of the first matter which Mr Green QC identified as giving Mr Burby a reasonable prospect of success had he attended and participated in the trial, Mr Eardley submitted that Mr Burby's case on whether his acts in 2009 including going to the police because he said he was in fear for his life was considered in paragraphs 120 to 132 of the judgment of 6^th March 2012. Although Mr Burby did not give evidence, the court considered whether he had reasonable grounds for his alleged fear and whether it could be said that his course of conduct in speaking to the press and the media about the Claimant's private life and confidential matters was pursued for the purpose of preventing crime.
33. Mr Eardley contended that the area in respect of which it was said that evidence by and on behalf of the Burbys and cross-examination of the Claimant's witnesses could affect the outcome related to matters pleaded in the counter claim. The counter claim had been struck out. The criticism of the conduct of the Claimant and her advisers did not amount to a defence in law to the claims. Evidence from Mr and Mrs Burby of their view of how they were being treated by the Claimant and her advisers would not have affected the outcome of the case. Insofar as Mr Burby wished to adduce such evidence to justify his actions, Mr Eardley submitted that evidence of bad treatment by the Claimant could not provide a defence to publishing her private information.
34. Mr Eardley submitted that the three prerequisites of setting aside a judgment had not been established by Mr Burby and his application should be dismissed.

Discussion and Conclusion

35. In order to succeed in his application under CPR 39.3(3) to set aside the judgment of 6^th March 2012, Mr Burby must establish that he had not attended the trial for good reason, has an arguable case on the merits and had applied to set aside the judgment promptly. If each of those three hurdles is surmounted, save in a very exceptional case the judgment will be set aside. However before the judgment can be set aside each of those three preconditions must be satisfied.
36. In Pereira Lord Neuberger held of CPR r 39.3 at pages 2397 and 2398:

'24 …As was made clear by Simon Brown LJ in Regency Rolls Ltd v Carnall (unreported) 16 October 2000; [2000] CA Transcript No 2405 the court no longer has a broad discretion whether to grant such an application: all three of the conditions listed in CPR r 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant has no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused.

25. On the other hand, if each of those hurdles is crossed, it seems to me that it would be a very exceptional case where the court did not set aside the order. …

26. The strictness of this trio of hurdles is plain, but the rigour of the rule is modified by three factors. First, what constitutes promptness and what constitutes a good reason for not attending is, in each case, very fact-sensitive, and the court should, at least in many cases, not be very rigorous when considering the applicant's conduct. Similarly, the court should not pre-judge the applicant's case, particularly where there is an issue of fact when considering the first hurdle. Secondly, like all other rules, CPR r 39.3 is subject to the overriding objective, and must be applied in that light. Thirdly, the fact that an application under CPR r 39.3 to set aside an order fails does not prevent the applicant seeking, permission to appeal the order."

Did Mr Burby apply promptly?

37. In my judgment whilst Mr Burby could have been expected to act more speedily to apply to set aside the judgment, a period of just over three weeks to do so in the context of a complex case is not to be regarded as a failure to act promptly.

The true reason for Mr Burby's non-attendance and was it a good reason

38. Applying the approach in Brazil and that in paragraph 26 of Pereira to deciding what was the true reason for Mr Burby's non-attendance at trial and whether it was a good reason for not doing so, I take into account all the evidence before the court: the witness statements of Mr and Mrs Burby and of Mr Bateman and their oral evidence. I also take into account the relevant applications made by Mr Burby in these proceedings.
39. In his application notice of 4^th April 2012 to set aside the judgment of 6^th March 2012, Mr Burby stated that he had a good reason for not attending the trial and asked for directions

"including providing for the reconsolidation of the trial of the action against me with the trial of the action against the First and Second Defendants that is listed for June 2012."

40. In his statement in support of the application, Mr Burby wrote of events after he had left the hearing and returned to Jersey on 12^th July 2011:

"12. My wife met with DC Mally Hamon from Jersey Special Branch and provided them with a full statement as to what transpired. She and I were specifically advised by Jersey Police not to travel to the British Mainland given what had happened to [X]. Jersey Police informed my wife and I that they would put our telephone number on high priority alert so that if either of us saw anything outside out home we could call Jersey Police and they would respond very quickly as a matter of urgency. In the meantime Jersey Police said that they would send police cars on a regular basis to close [sic] into the close in which our home is sited to show that if my wife and I were still being watched, Jersey Police knew of it."

41. Mr Burby again exhibited his letter to the Court dated 13^th July 2011 as he had to the statement in support of his 18^th July 2011 adjournment application. Before referring to what the Burbys considered to be the nature of the threat, Mr Burby wrote:

"The police share our concern for the safety of my family and we take the position that this threat is directly relating to these proceedings.

The nature of the threat is clear: the sender of the letter knows where my wife, young children and I live. She and I have, in layman's terms, been 'warned off' continuing in our fight for justice against the Claimant and her family. I do not believe the timing of the sickening threat to be a coincidence. My wife is one of my witnesses of fact and she has been intimidated by those who do not want her to give evidence. There is nothing going on in the lives of my wife or I that would result in such a threat coming for any other purpose.

Given that the safety of my wife and young children is of the utmost importance to me I have no hesitation in stating that the people who have done this also wish to dissuade me from continuing with this litigation and related claims."

42. In his oral evidence, Mr Burby said that when his wife called him on 12^th July 2011 when he was in London she was very distraught. When he returned to Jersey Mrs Burby told him she had been to the police. Mr Burby gave evidence that she told him what she has said was their advice about travelling to the UK. Mr Burby telephoned the police the next day or the day after and spoke to DC Hamon for between 10 and 15 minutes. DC Hamon told him the measures which were being taken to investigate the source of the letter to his wife. DC Hamon did not tell Mr Burby not to leave Jersey. Mr Burby did not recall telling the officer that he was due to attend court proceedings in London.
43. Mr Burby did not say that there came a time when he and his wife were told by the police that it would be safe to leave Jersey despite applying on 18^th July 2011, six days after the receipt of the photograph, for an adjournment for 3 months to have his case heard with that of the First and Second Defendants. He gave evidence that he would have felt able to attend a trial in October 2011 'once things had calmed down and I could see clearly'.
44. Mrs Burby made a 2^nd statement on 4^th May 2012 for the purpose of the application to set aside the judgment. A confidential schedule attached to the statement includes matters which are directly relevant to the application and on which she gave oral evidence. Accordingly I set out what Mrs Burby stated in paragraph 9 of that Schedule about her dealings with the police:

"Whilst at the Police Station, the only person I spoke to was DC Hamon, he advised me that under the circumstances of such a direct 'threat' it would be foolish to leave the Island and that the Jersey Police could offer me no protection if I did leave the Island. However if I remained in Jersey, the local police could provide me with patrols outside our home, which DC Hamon said would act as a deterrent if I was still being watched and that our home phone number could be put on high alert. DC Hamon said he strongly advised me not to go to the UK and I took his advice. I would never have forgiven myself if I had left the Island and something had happened to my children at home or to me when I was away."

45. In a 3^rd statement of 4^th May 2012 Mrs Burby wrote:

"2. I spoke to DC Mally Hamon today, Friday 4^th May at around 1.45pm …

…

4. When I asked DC Hamon if he had discussed anything with Mark Bateman he first said that he did not discuss the case outside the Police. However later in the conversation he said Bateman was told that the case was being investigated.

5. He said that he spoke to Mark Bateman a few days after the event and confirmed that they had followed up in getting the black marks [on the envelope containing the photograph] identified and due to the lack of forensic evidence there were no further leads to follow and they couldn't do any more.

6. DC Hamon said he would not have given me any advice. However, when I challenged him and said 'But you definitely did tell me I would be foolish to leave the Island', he said he was not going to get used as a pawn in a civil case and if asked to give evidence he would say that he didn't give me such advice.

7. I thought this was a strange thing to say, as if he had already been pressured by Mr Bateman not to confirm this advice, but I accept that this was speculation by me. However, it was a very strange way to answer.

8. I then reminded him that he even discussed the protection he was going to put in place in Jersey, given that he was strongly advising me to stay in Jersey, he stuttered at [sic] bit, then said I must be mistaken."

46. In her oral evidence, Mrs Burby said that when she went to the police station on 12^th July 2011 and reported receiving the photograph she was told that she would be foolish to go anywhere. She told Mr Burby that 'we had both been advised not to travel'. PC Hamon 'had strongly advised neither [sic] of us to travel to the UK'. Mrs Burby said that she did not want her husband 'giving any kind of evidence', referring to the hearing of the Claimant's case against him. Mrs Burby said that DC Hamon organised marked and unmarked police cars to patrol the close where the Burbys lived. Also an arrangement was put in place so that their telephone number was registered at a police station. If they dialled 999 a rapid response unit would come. When asked in cross-examination why a hearsay notice had been served in respect of her statement if she was intending to give evidence at the hearing, Mrs Burby said she thought she was coming to give evidence. It was at least 2 or 3 months after receiving the photograph that she travelled out of Jersey. She said that she would have given evidence later in October.
47. Mr Bateman made a witness statement, his 12^th, on 2^nd May 2012 to deal with matters raised by Mr Burby's counsel at the hearing on 20^th April 2012 regarding his contact with the Jersey police. In that statement Mr Bateman said that shortly before the hearing of Mr Burby's application on 18^th July 2011 to adjourn the proceedings, he asked a colleague to contact Jersey police. The colleague spoke to the police outside court on 18^th July and received confirmation that a complaint about a threat to Mrs Burby had been received. However Mr Bateman had not been told about this until after judgment on the adjournment had been given. He also did not accept that the Claimant's solicitors were under a duty to contact the police or relay the answer to the Court.
48. In his witness statement of 18^th April 2012, the 11^th, Mr Bateman set out the enquiries he made of Jersey police following the allegation in Mr Burby's statement of 29^th March 2012 that he and his wife 'were specifically advised by Jersey Police not to travel to the British Mainland given what had happened to [X]'. DC Hamon who was off duty had asked his supervisor to make contact with Mr Bateman in answer to the enquiry. By email of 16^th April 2012 his supervisor, DS Thomas replied that the police had never told Mr Burby that he should not leave the Island.
49. On the evidence before me I find that on 12^th July 2011 Mrs Burby received a photograph of herself unloading shopping from the boot of a car with the words 'We know. You have been warned' superimposed on it. She was upset and frightened by the photograph and made an association between this and a photograph which she understood had been sent to a man who was conducting litigation involving someone close to the Claimant. That person was murdered.
50. Mr Eardley did not challenge the evidence that the receipt of the envelope containing the photograph distressed Mrs Burby. That the photograph was sent by a third party was not doubted. Although there was nothing on its face to link the photograph with these proceedings, Mr Eardley did not doubt that the Burbys made that link. It was also accepted that Mrs Burby reported the receipt of the photograph to the Jersey police who offered and implemented security measures: putting calls from their telephone on alert at the police station and patrolling the close where they lived with marked and unmarked police cars.
51. What remained in issue on the facts was whether the police had advised Mr Burby not to travel to England (or to leave Jersey) and whether the real reason for his non-attendance at trial was concern that his wife and family had been threatened with harm if he or his wife took part in the trial.
52. On his own evidence, Mr Burby was not told directly by the police not to leave Jersey. On the evidence of DS Thomas' email to Mr Bateman written at DC Hamon's request and Mrs Burby's 3^rd statement in which she frankly states that DC Hamon told her that he would not give evidence that he had advised her not to leave Jersey, I am not satisfied that the police told Mrs Burby to tell her husband not to leave Jersey. It would be surprising that if such an important instruction had been given, DC Hamon would not have given it direct to Mr Burby when he spoke to him on the telephone the next day or two days later or that Mr Burby would not have told DC Hamon that he was due to participate in a trial in London and asked whether he could attend. Further, if Mr Burby had been given such advice by the police through his wife it is highly unlikely that he would not have referred to it in his letter to the Court of 13^th July 2011 or in his application on 18^th July 2011 for an adjournment.
53. Mrs Burby may have inferred that she should not leave Jersey because provisions for her protection were being put in place at her home. She was upset on 12^th July 2011 when she made her report to DC Hamon in the course of which she said that she was given advice not to leave Jersey which was also to be relayed to her husband. She did not say that. Although Mrs Burby travelled off the island within 2 or 3 months and Mr Burby did so after a few weeks there was no evidence that the advice alleged to have been given by the police was repeated or withdrawn at any time. Further, on the evidence, it was the Burbys and not the police who made any link between the photograph and these proceedings. I find that Mr Burby has not established that he was advised by the police not to leave Jersey. Nor has he established that Mrs Burby was so advised by the police.
54. I accept that Mr Burby returned to Jersey on 12^th July 2011 because his wife was upset by and he was concerned about her being sent the photograph. However, he was not advised by the police to remain in Jersey and measures for the protection of his family had been put in place by the police for the protection of his wife and family. As shown by his application of 18^th July 2011 made a few days after the receipt of the photograph, he was asking to defer the trial of the proceedings against him until October 2011. Such a request is not consistent with Mr Burby fearing that he or his family were being threatened with violence or other consequences if he participated in the proceedings.
55. Mr Burby said in his statement of 18^th July 2011 'I naturally needed to remain in Jersey'. Even if Mr and Mrs Burby had been told not to leave the island or they felt they could not do so, Mr Burby knew that he could apply to participate in the hearing by video link.
56. In addition to the written and oral evidence of Mr and Mrs Burby, I take into account the fact that before 18^th July 2011 Mr Burby had made unsuccessful applications to adjourn the proceedings against on 27^th May 2011 (followed by an unsuccessful application for permission to appeal), 28^th June 2011, and 11^th July 2011.
57. I find that the true reason for Mr Burby's non-attendance at trial was not that advanced by him, 'a threat to the life/safety of my wife and family'. On the evidence before me, the true reason for Mr Burby's non-attendance at trial was his unwillingness to face the claims against him at the hearing in July 2011. I would have reached this conclusion even without the history of Mr Burby's previous attempts to obtain adjournments.
58. Mr Burby's wish to defer the hearing of the claims against him is not a good reason for his non-attendance at trial. The proceedings against Mr Burby were commenced in 2009. There have been many steps taken in the proceedings by both parties since that date. Mr Burby's unwillingness or unpreparedness to attend a trial of the claim in July 2011 is not a good reason for his non-attendance at the hearing.
59. Although it may be surprising that Mr Bateman did not inform the court of the information from the police given to him albeit a short time after judgment on Mr Burby's application for an adjournment, that does not affect the matters relevant to the determination of the current application.

Would Mr Burby have had a reasonable prospect of success if he had participated in the trial?

60. Mr Burby's pleaded Defence to the claim in harassment was considered in paragraphs 120 to 132 of the judgment of 6^th March 2012. Mr Green QC contended that evidence from Mr and Mrs Burby and cross-examination of the Claimant and her witnesses could have affected the decision that Mr Burby's complaint to the police and actions at the time of X's murder in 2009 constituted harassment. It was said that this evidence could have affected the identified Issues for Trial 1, 3, 6 and 8.
61. In his letter of 15^th July 2011 regarding Issue 1: whether Mr Burby approached the press or just responded to their enquiries, Mr Burby wrote:

"To date, I have not been shown any evidence that I approached the press in the manner characterised by the Claimant. I did not appreciate the level of press interest at the time of [X's] death, and would liken myself to a 'rabbit in the headlights'. I did choose to do a couple of interviews under advice from Positive Profile and when I did, I gave an honest account of what had happened but still concealed the identity of the Claimant and tried to protect her privacy or information that I considered to be private."

62. In response to Issue 3, the motive for each Defendant, Mr Burby wrote that although for 3 years he had provided assistance to the Claimant in her disputes with others, she had failed to procure payment of his judgment debt as she had agreed. His motive

"was therefore to show the events, deal with the facts and tell the story but anonymised the claimant as a mark of respect."

Characterising this as harassment was

"clever and careful manipulation of the situation by her lawyers… The witness statements of Matthew Dowd and Abel Hadden are fundamentally incorrect and should be cross examined."

63. As for Issue 6: whether and to what extent Mr Burby's entitlement to 'tell his story' amounts to a defence, Mr Burby stated that he was entitled to give his account of events. He concealed the identity of the Claimant. He stated:

"If that masking was insufficient I would have happily complied with a request to amend the website, as was the case when Matthew Dowd asked for an amendment to registered web site holder of record."

This was a reference to the hibernation of the website in 2009.

64. In response to Issue 8, Mr Burby stated that what he saw as the Claimant reneging on her agreement to help him recover the monies due under the judgment put him in a similar position to X who had been murdered. Further he said that recent events and the photograph sent to his wife on 12^th July 2011 supported his fear.
65. None of the evidence of the first category which Mr Green QC said would have been given by Mr Burby or on his behalf, including that of witness A, or which could have been established by cross examination of the Claimant or her witnesses would have affected the conclusion that the postings by Mr Burby on the website and giving interviews to the press was harassment of the Claimant. The answer given in his letter of 15^th July 2011 to the List of Issues for Trial show that he was well aware that the information he was putting on the website and was communicating to the press was private and confidential. Mr Burby claims to have anonymised such information to protect the Claimant's privacy as a mark of respect. The irresistible inference from what Mr Burby himself says about the disclosure of the Claimant's private information is that he was well aware that its disclosure, even in anonymised form, would cause her distress.
66. Nor would Mr Burby's evidence have assisted him in establishing a statutory defence under the Protection from Harassment Act 1997 Section 1(3). Mr Burby posted material on his website and gave interviews to the press which disclosed the Claimant's private information. On the unchallengeable findings of fact, this course of conduct could not have been shown to have been pursued for the purpose of preventing or detecting crime. Evidence to seek to establish that the report to the police made by Mr Burby in 2009 was not an act of harassment would not have affected the conclusion that he had engaged in a course of conduct which constituted harassment to which no defence had been established. The basis for the finding of harassment was not Mr Burby's report to the police in 2009 but his postings on the website and information he gave to the press.
67. As for the second basis upon which it was suggested by Mr Green QC that evidence from Mr and Mrs Burby and cross-examination of the Claimant and her witnesses would have affected the outcome of the claims was that the actions of Mr Burby could have been judged in the context of the parties' respective dealings with each other and the Claimant's solicitors dealings with him. Such a contention amounts to a plea of justification for acts which were a course of conduct which was harassment. Whether a course of conduct amounts to harassment is to be judged objectively. A person ought to know that such conduct amounts to harassment:

"if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other. " (Protection from Harassment Act 1997 Section 1(2)

68. The findings of fact regarding the acts which were held to be a course of conduct amounting to harassment are not challenged nor could they be. The purpose of carrying out those acts was inferred from Mr Burby's own acts. The context or excuse for those acts could not afford Mr Burby a defence to the claims against him.
69. It was Mr Burby's case that he wanted to 'tell his story' because he considered that the Claimant had reneged on her agreement to procure payment of his judgment debt and to provide him financial assistance. He claimed that failure to provide such assistance meant that he could lose his home. Mr Burby would have wished to call Witness A. She could have given evidence of the extent of which, to her knowledge, the sexual allegations were in the public domain. No documentary evidence was produced by Witness A to support that contention in her witness summary. By his own evidence Mr Burby in his letter of 15^th July 2011 stated:

"She [the Claimant] was not mentioned by name on the website or in a manner that would have directly revealed her identity."

The issue of whether material published on the website was in the public domain was considered in paragraphs 106 to 108 of the judgment. It is highly unlikely that the conclusion reached would have been affected by the oral evidence of Witness A.

70. Evidence of dealings between the Claimant and the Burbys as set out in the Defence, the Part 18 response, Mr Burby's letter of 15^th July 2011, their statements, item 5 in Mrs A's witness summary and Mr Green's submissions and cross-examination of the Claimant and her witnesses would not in my judgment have affected the material conclusions reached in the judgment nor would they have given the defence a realistic prospect of success.
71. In my judgment Mr Burby's participation in the trial to adduce evidence on the two issues identified by Mr Green QC on his behalf would not have given him an arguable case on the merits. He has not established that he had a reasonable prospect of success at the trial.

Conclusion

72. Mr Burby has established that he acted promptly to set aside the judgment of 6^th March 2012. However I have held that he did not have a good reason for not attending the trial, nor did he have a reasonable prospect of success at the trial.
73. In Pereira Lord Neuberger MR held at page 2397 paragraph 24:

"As was made clear by Simon Brown J in Regency Rolls Ltd v Carnall (unreported) 16 October 2000; [2000] CA Transcript No 2405 the court no longer has a broad discretion whether to grant such an application [an application to set aside a judgment]: all three of the conditions listed in CPR r 39.3(5) must be satisfied before it can be invoked to enable the court to set aside an order. So, if the application is not made promptly, or if the applicant had no good reason for being absent from the original hearing, or if the applicant would have no substantive case at a retrial, the application to set aside must be refused."

74. Mr Burby has failed to satisfy two of the three conditions for setting aside a judgment under CPR r 39.3(5). His application to set aside the judgment of 6^th March 2012 is dismissed.