The Privy Council in the case of Strachan v. The Gleaner earlier this year, revisited some principles which apply to orders of the court, in particular court orders.

The case is not really innovative, but the judgment is short and, with respect, excellent, and Mr. Strachan’s litigation, which had run out of control, is sufficient sign that lawyers need the clear and authoritative guidance the case provides.

The Factual Background

The Gleaner is a respected Jamaican broadsheet. Mr Strachan sued it for libel. It is – like many of the cases I write about – a case which went badly wrong. In such cases, often one finds a lethal mix of a determined and increasingly frustrated client, errors by lawyers, and errors by judges. In the present case at least one of those ingredients – errors by the court – was present. I do not comment on the other two, but I do compare the Strachan case with another Jamaican libel case to make the point that whatever Mr. Strachan in fact felt (which I do not know), most plaintiffs in his position would felt that mixture of frustration and determination which can make these Bleak House cases such a nightmare.

The judgment of the Committee, delivered by Lord Millett, includes what amounts to a simplified chronology, introduced in the following terms.

This brief summary of the background serves to indicate the nature of this appeal but it does not do justice to the welter of applications, cross-applications, appeals, orders, orders setting aside earlier orders and orders refusing to set aside earlier orders in proceedings which have got completely out of hand. More than 13 years have passed since the Writ was issued, and the question which now falls for decision is whether, subject only to an outstanding appeal on quantum, there has been a final judgment in the action or whether, as the majority of the Court of Appeal have held, the action has not yet progressed beyond the conclusion of pleadings.

Mr. Strachan's case overlapped with another libel case against The Gleaner, which also reached the Privy Council. That was The Gleaner v. Abrahams. The Abrahams case does provide some interesting context. In 1987 The Gleaner along with another newspaper said it suspected Mr. Abrahams, Minister for Tourism, of taking bribes. Judgment in default of defence was entered in October 1987. Subsequently the defendants applied to set aside that judgment because they thought they had evidence to plead justification.

The Strachan case had similarities. In July 1991 The Gleaner appears to have suggested that Mr. Strachan, an accountant, had evaded paying duty on an imported car. Judgment in default of defence was entered. On the basis of the default judgment Mr. Strachan obtained a judgment on quantum from the jury in May 1995 for a sum equivalent to over £400,000. The Defendants were going to appeal on quantum and had paid something into court. Then The Gleaner later they had evidence which might have enabled them to plead justification. The newspaper therefore sought to set aside the default judgment.

Mr. Abrahams' case was also tried was May, June and July 1996 and the jury awarded the equivalent of about £1.2 million. I have no idea how Mr. Strachan felt about this very large and headline-grabbing aware, but it would natural if he felt galled: it had taken him four years to obtain judgment for the best part of half a million pounds, and the defendants had already paid a sum into court. Weeks after Mr. Abrahams obtained a still larger and well-publicized judgment, Mr. Strachan's own judgment was taken away from him.

With the benefit of hindsight Mr. Strachan's best course would have been to live with this procedural setback, and fight on liability. However, what he decided to do was to fight to hold onto his default judgment. In fairness to Mr. Strachan and his lawyers, this decision appears to have been stimulated by a judicial error. The Defendant newspaper applied to get back the money they had paid into court. The judge at that hearing decided a different question which had not been argued before him: he decided that, because judgment on quantum had now been given following a contested hearing, the default judgment should never have been set aside. He reinstated it (so the defendants' application to get back the money they had paid into court lost its basis - if the default judgment was effective, so was the final judgment given after the quantum hearing, and the defendants were going to have to pay something, though the figure subject was to appeal on quantum).

This situation led to the procedural knot which reached the Privy Council. The Court of Appeal reversed the decision to restore the default judgment – on jurisdictional grounds – but left the way open for the default judgment to challenged in the Court of Appeal. Which it was. Put another way, the Court of Appeal said that Judge B could not restore the default judgment and thereby overrule Judge A (a judge at the same level). But the Court of Appeal also said that it could, (as it eventually did,) hear an appeal out of time in which it was asked to restore the default judgment set aside by Judge A. In the event the Court of Appeal refused to restore the default judgment. It decided by 2-1 that the decision setting aside a default judgment on liability, after judgment on quantum had been given, was not an excess of jurisdiction. The decision to set aside the default judgment was allowed to stand, so that The Gleaner could now defend on liability.

In the meanwhile the Court of Appeal had reduced Mr. Abrahams' award, but substituted the a still generous figure equivalent to £533,000. The Privy Council refused to interfere with this figure. Mr. Strachan was less lucky before the Privy Council, who upheld the decision to set aside the default judgment, so that a trial on liability could go ahead.

I have compared Mr. Abrahams' case with that of Mr. Strachan because it struck me that Mr. Abrahams's win is just the kind of circumstance which could drive a claimant in Mr. Strachan's position to regard litigation as a cruel lottery - and yet could reinforce a claimant's determination to see it through to a satisfactory outcome. Now I turn to the issues which were before the Privy Council.

The issues

First, the question of setting aside the default judgment after trial on liability. Judge B had decided that in doing so Judge A had ordered a retrial and exceeded his jurisdiction. The Privy Council (like majority in the Court of Appeal) disagreed. Several questions about default judgments can be answered by bearing in mind that a default judgment is an administrative act and not a judicial act. For example, because it is an administrative act there is no time limit for applying to set it aside. However in the present case the question arose whether the character of the default judgment had somehow changed, or whether it had been superseded by the fact that the defendant had participated in a contested hearing at which evidence was given. The Committee explained the concept underlying the correct approach by distinguishing between a judgment given on the merits (or by consent) and a judgment obtained by failure to follow any rule of procedure. A judgment which is an administrative act would of course be a subset of the latter. Lord Millett said:

The Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion: see Evans v Bartlam [1937] AC 473 where Lord Atkin (discussing the provisions of English rules in substantially the same terms as Section 258) said at p 480

"The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure".

The above extract expresses an important concept which every litigator should have ready to hand. It is a lens through which we can more easily distinguish the wood from the trees. Of course most of the time it is sufficiently obvious, but the Strachan case is an example of how easy and how dangerous it is to loose sight of the underlying principles of procedure.

The second point is that the Committee sets out the distinction between an order which is a 'nullity' and one which is 'irregular.' This is another key distinction in procedural law:

The distinction between orders which are often (though in their Lordships' view somewhat inaccurately) described as nullities and those which are merely irregular is usually made to distinguish between those defects in procedure which the parties can waive and which the Court has a discretion to correct and those defects which the parties cannot waive and which give rise to proceedings which the defendant is entitled to have set aside ex debito justitiae...

These included (i) proceedings which ought to have been served but which have never come to the notice of the defendant at all; (ii) proceedings which have never started at all owing to some fundamental defect in issuing them; and (iii) proceedings which appear to be duly issued but fail to comply with a statutory requirement.

The third question: in fact the Committee had decided that the Court had jurisdiction to set aside the default judgment after the conclusion of the contested hearing on quantum. But what if the court had not had jurisdiction? That leaves the question of whether Judge B had the jurisdiction to decide that Judge A had exceeded his jurisdiction, and that his order was therefore a nullity. The answer was 'no':

The Supreme Court of Jamaica, like the High Court in England, is a superior court or court of unlimited jurisdiction, that is to say, it has jurisdiction to determine the limits of its own jurisdiction. From time to time a judge of the Supreme Court will make an error as to the extent of his jurisdiction. Occasionally (as in the present case) his jurisdiction will have been challenged and he will have decided after argument that he has jurisdiction; more often (as in the Padstow case) he will have exceeded his jurisdiction inadvertently, its absence having passed unnoticed. But whenever a judge makes an order he must be taken implicitly to have decided that he has jurisdiction to make it. If he is wrong, he makes an error whether of law or fact which can be corrected by the Court of Appeal. But he does not exceed his jurisdiction by making the error; not does a judge of co-ordinate jurisdiction have power to correct it.

This formulation is deceptively simple. It begs a question which Lord Millett did not mention, though he would certainly have seen it. In what way is an order of a lower court, for example the County Court, different in practice from an order of the superior court? Excess of jurisdiction can be determined on appeal in both cases, but presumably in neither case by a judge of co-ordinate jurisdiction. So why does the Committee make this distinction?

It is submitted that answer may be that a County Court order made in excess of jurisdiction will have different consequences than a High Court order made in excess of jurisdiction. The County Court is a creature of statute. An excess of jurisdiction in the County Court must surely be taken to be a nullity in the public law sense; so that in retrospect the order will be seen not to have been binding. Whereas the order of a court which has the jurisdiction to determine the limits of its own jurisdiction, will be seen in retrospect to have been made with good jurisdiction (which remains good until the implicit decision on jurisdiction, to which Lord Millett refers, is reversed) and therefore that High Court order will be not only binding but valid for all purposes (and not a nullity in the public law sense) until set aside. This is a difficult point, and it is clear enough why the Committee did not mention it, since this case gave no opportunity to explore it fully. But this judgment will be useful wherever it is suggested that an order has been made in excess of jurisdiction.

The judgment is clear, compendious and short. If I had extracted all the meaty bits to quote here, I would have quoted most of it. With respect, it is a classic example of English procedural thought. Students are encouraged to read it carefully for that reason, and because there is more depth in it that may at first meet the eye.

Dr John Birchall - Professional English, Legal English, and Common Law Training