Mr Justice Tugendhat :
- This is a claim for injunctions requiring
the
Defendant,
the
publisher of
the
"Solicitors from Hell" website ("
the
Website"), to cease publication of
the
Website in its entirety and to restrain him from publishing any similar website.
The
causes of action relied upon are libel, harassment under
the
Protection from Harassment Act 1997 ("
the
PHA") and breach of
the
Data Protection Act 1998 ("
the
DPA").
The
claim is brought as a representative action on behalf of all those currently featuring on
the
website and those who might, in
the
future, feature on
the
website.
The law
firms and organisations represented by
the
Second Claimant are referred to as "
the
Represented Listed Firms".
The
presently listed individuals represented by
the
Third Claimant are referred to as "
the
Represented Listed Individuals".
The
individual solicitors and other individuals represented by
the
Third Claimant that are at serious risk of being named on
the
Website will be referred to as "
the
Represented Individuals". I shall refer to them collectively as
the
Represented Parties.
The
Claimants represented by
the
First Claimant are referred to as
the
"
Law Society
Represented Claimants".
- An interim injunction to restrain publication of a libel is granted only if there is no doubt that
the
words are defamatory, and only if there is no defence put forward which a jury, properly directed, could uphold. This is usually referred to as
the
rule in Bonnard
v
Perryman [1891] 2 Ch 269. But perpetual injunctions to restrain publication of a libel are commonly granted, either after a trial, or after judgment is entered in default of defence. However, in
the
case of default judgments, a claimant must make an application for an injunction in accordance with Part 23: see CPR Part 12.4(2).
- A representative action for harassment under
the
PHA has been permitted to proceed in a number of cases. Mr Tomlinson was unable to identify any case where a representative action was brought in libel.
- At
the
end of
the
hearing I granted an injunction prohibiting
the
Defendant from further publishing
the
Website, in terms to be reviewed on
the
handing down of
the
reasons given in this written judgment. These are
the
reasons.
The
First Claimant is
the Law Society
for England and Wales. It is a professional body established by Royal Charter. It represents
the
interests of every solicitor on
the
roll in England and Wales, and every
law
firm registered in England and Wales.
The
Second Claimant is a large firm of solicitors based in
the
South of England.
The
Third Claimant is a partner in
the
Smith Partnership, one of
the
largest firms of solicitors based in
the
East Midlands.
The
Second Claimant brings
the
action for
the
Firm and
the
Third Claimants brings
the
action for himself, and all
the
Claimants claim to be acting in a representative capacity pursuant to CPR Part 19.6, as set out in
the
title to this action and further explained in paragraphs 143ff below.
The
Defendant is
the
founder, operator and publisher of
the
Website. This appears to have a substantial readership within this jurisdiction. It has been in existence since late 2005.
The
Defendant purported to serve a Defence out of time. I shall refer to this as his Defence. As
the
Defendant admits in paragraph 16 of
the
Defence (admitting para 6.2 of
the
Particulars of Claim)
the
Website encourages and invites disgruntled members of
the
public to "NAME and SHAME your OPPRESSOR" and add names of solicitors to
the
publicly available list of "Solicitors from Hell". A fee of between £1 and £100 (depending upon
the
size and prominence of
the
posting) is charged by
the
Defendant. In
the
vast majority of cases
the
author of
the
posting is anonymous.
The
Defendant claims that
the
Website provides a public service by publishing a "blacklist" of
law
firms and solicitors that should be avoided. It purports to encourage members of
the
public to "expose wrongdoing" within
the
profession.
- It is
the
Claimants' case that being listed and named on a website purporting to list "solicitors from hell" is defamatory of itself.
The
Website causes serious damage to
the
reputations of
the
solicitors, firms and others who are listed on it, causing them financial loss, embarrassment, anxiety and distress. By publishing and republishing such material on
the
Website, knowing that it will be widely disseminated to clients and others via search engines,
the
Defendant is harassing those listed on it. Far from providing a public service,
the
Defendant is doing
the
public a disservice by encouraging them to refer to his Website when selecting a lawyer, since he is encouraging them to use inaccurate information to choose a solicitor.
The
Defendant disputes
the
entitlement of
the
Claimants to bring proceedings under CPR Part 19.6. But subject to that, he has not raised any defence to
the
claims in libel. There is no suggestion by him that
the
words complained of are true, or that they are honest opinion. Although he claims to be providing a public service, he does not attempt to raise any of
the
defences recognised in
the law
of libel for defendants claiming that publications are in
the
public interest. There is no plea of qualified privilege of any kind.
The
Defendant does dispute that some of
the
words complained of refer to all solicitors represented by
the
Claimants. And he pleads Art 10(1) of
the
ECHR (Freedom of Expression) in an answer to
the
claims for injunctions in libel, as if
the
right granted by Art 10(1) were not qualified by
the
responsibilities and other provisions of Art 10(2). As to
the
claims under
the
PHA,
the
Defendant again invokes an unqualified Art 10(1) right. And although he himself does not raise any affirmative defence recognised by
the law
of libel, he asserts that
the
Claimants must bring their claims, if at all, under
the law
of libel, and that they cannot circumvent that requirement by relying on
the
PHA. He makes no specific response to any of
the
particulars pleaded by
the
Claimants in support of
the
claims under
the
PHA.
The
Defendant adopts a similar response to
the
claims under
the
DPA. He states that
the
Claimants must bring their claims, if at all, under
the law
of libel, and relies on Art 10(1).
- Art 10 of
the
Convention provides:
"1. Everyone has
the
right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2.
The
exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by
law
and are necessary in a democratic
society
, … for
the
prevention of disorder or crime, for
the
protection of health or morals, for
the
protection of
the
reputation or rights of others, for preventing
the
disclosure of information received in confidence, or for maintaining
the
authority and impartiality of
the
judiciary."
- In his witness statement signed on 8 November 2011,
the
Defendant does not suggest that he intends to justify
the
allegations complained of. Nor does he suggest that he intends to defend
the
claims under
the
PHA or
the
DPA. Instead
the
Defendant explains how he set up
the
Website. He explains that he posted
the
first comment about a firm of solicitors who had advised him, but that all other submissions to date were from members of
the
public. He states that
the
Website works in 'publisher mode' whereby he reviews
the
comments prior to publication. He now claims that "approximately 80%" are intercepted and deleted by him. Mr Tomlinson submits that this is at odds with other statements he has made claiming he does not seek to verify
the
accuracy of
the
content of
the
submissions (see Awdry Bailey Douglas
v
Rick
Kordowski
[2011] EWHC 785 (QB)).
- Mr Tomlinson states that
the
Claimants and in particular,
the
First Claimant, have no objection to proper criticism of
the
legal profession or debate about whether a particular solicitor has failed to provide service of appropriate quality in a particular case. Informed debate on these issues is clearly in
the
public interest and a proper exercise of
the
right to freedom of expression. But he submits that
the
Website makes no contribution whatever to such debates but instead sets out to and does provide a forum for
the
publication of malicious and defamatory allegations about solicitors.
The
Website operates against
the
public interest and
the
Claimants have brought this action with
the
aim of ensuring that it ceases operation.
The Law Society
is concerned about
the
enormous reputational damage that is, and can be, done to firms and lawyers as a result of their being listed on
the
Website. It is also concerned about
the
disservice to
the
public.
The
dissemination of misinformation to members of
the
public through
the
Website may deter members of
the
public from instructing good solicitors.
The
Defendant has listed a total of 15 libel actions have been brought against him by solicitors named on
the
Website (see paragraph 120 below). Judgment has been entered against him for damages and costs in many of these and, as a result, he was made bankrupt on 7 September 2011. He has not successfully defended any of them. In Farrall
v Kordowski
[2011] EWHC 2140 (QB) on 28 January 2011 Lloyd Jones J had to assess aggravated damages. In that context malice on
the
part of a defendant is relevant. He found (at para [21]) that
the
allegations were without foundation, and that they were made maliciously, for reasons he set out in detail. On
the
same day Smith LJ refused as "totally without merit"
the
Defendant's application for permission to appeal from
the
order of Sharp J made on 3 November 2010 in Mazzola
v Kordowski
(unreported). Sharp J had held that
the
Defendant was liable for
the
publication in
the
Website under
the
Defamation Act 1996 s.1 (para 16 of
the
transcript of her first judgment that day). He admitted having no defence to
the
claim other than on
the
issue of whether he was
the
author. So Sharp J entered summary judgment against
the
Defendant. For reasons given in her second judgment that day, Sharp J also granted a perpetual injunction restraining
the
Defendant from publishing any reference to Miss Mazzola on
the
Website, or from further publishing
the
words complained of in that action, or words to
the
same or a similar effect. In
the
assessment of damages Mazzola
v Kordowski
(unreported 15 December 2010), Gray J also found that
the
libel was repeated one month after
the
injunction. I take this to be a finding of malice.
- Miss Mazzola is one of a number of
the
Defendant's victims who was near
the
start of her career, or at least sufficiently so to be described as a "rising star".
The
Defendant's younger victims are
the
more vulnerable because they do not have
the
many years' record of achievement that more senior solicitors, such as
the
Third Claimant, can demonstrate.
- On 30 March 2011 in Robins
v Kordowski
[2011] EWHC 981 (QB) Henriques J said at para [35]:
"I would only add this:
the
time has surely arrived for
the Law Society
and
the
Bar Council to consider some effective response to
the
conduct complained of in this case and other similar cases…."
- On 28 July 2011 Sir Richard Buxton refused
the
Defendant permission to appeal in
the
cases of Philips
v Kordowski
and Farrall
v Kordowski
. In each case Sir Richard Buxton wrote that
the
applications for permission to appeal were "totally without merit" and ruled in each case that
the
Defendant was not permitted to request
the
decision be reconsidered at an oral hearing. In Farrall his written reasons included
the
following (which are similar to
the
reasons he gave in Phillips):
"[
The
Defendant's] has no legitimate interest in publishing
the
information that is to be found on his site. It is equally absurd for him to claim that he had no reason to believe that what was posted was defamatory. And his argument that he offered
the
claimant
the
alternatives of excusing herself to him or paying a substantial amount of money, in each case to secure removal of
the
posting, casts a dire light on
the
way in which he conducts his business.
The
need to control
the
applicant's activities has already made considerable demands on
the
court's time. No further public resources should be devoted to this matter."
- Art 10 does not replace
the law
as it was before
the
Human Rights Act 1998.
The
general
law
has been in force before and after that Act, and sets out rights and responsibilities which must be compatible with Art 10. Sir Richard Buxton's remarks make clear that
the
Defendant's attempt to rely on a supposed unqualified right under Art 10(1), without any attempt to bring himself within
the
defences available in
the law
of defamation, is totally without merit.
- As a result of
the
Defendant's bankruptcy
the
intellectual property rights in
the
Website and its contents are vested in his trustee in bankruptcy, but he has not taken any steps to transfer them. Rather, on 2 November 2011, he announced that he had decided to "give
the
website away" to "experienced owners who operate overseas".
The
Claimants successfully applied for an interim injunction to restrain this transfer on
the
basis that it would constitute unlawful data processing and harassment. An interim injunction was granted by Langstaff J restraining
the
transfer ("
the
Transfer Injunction"), returnable at this hearing.
THE
APPLICATIONS BEFORE
THE
COURT
- There are three applications before
the
Court brought by
the
Claimants:
i) An Application by Notice issued on 11 October 2011 for an interim injunction pursuant to CPR Part 25. However, there is no occasion for an interim injunction once a final judgment is entered, so this application is subject to
the
Application of 28 October.
ii) An Application by Notice issued on 28 October 2011 for final judgment in default pursuant to CPR Part 12.3(2) and 12.4(2) and a permanent injunction prohibiting
the
Defendant from further publishing
the
Website www.solicitorsfromhell.co.uk or any website with a similar name.
iii) An Application by Notice issued on 10 November 2011 for a permanent injunction in
the
terms of
the
Transfer Injunction granted by Langstaff J on 2 November 2011, that is prohibiting
the
Defendant from disposing of, selling or transferring any or all of
the
data on
the
Website to any third party.
- Until
the
start of
the
hearing there was an issue as to whether
the
Defendant had lodged an acknowledgment of service,
the
time limit for which was 25 October 2011.
The
Defendant states in his witness statement of 9 November 2011 that he filed it on 13 October. If he had filed an acknowledgement of service at
the
latest date,
the
time limit for service of a Defence would have been 8 November.
The
Defendant states that a document he served on
the
Claimants' solicitors by email on 13 November 2011 is a valid Defence, and it is accepted that he did send what he asserts to be a Defence to
the
Claimants on that date. But (assuming that he did file an Acknowledgement of Service) that date is out of time on any view. It follows that
the
Defendant needs an extension of time. Mr Tomlinson opposes an extension of time on
the
ground that
the
Defence discloses no reasonable grounds for defending
the
claim, so that
the
Defence would, if served in time, fall to be struck out under CPR Part 3.4(2)(a). So Mr Tomlinson did not ask me to make any findings on whether an Acknowledgement of Service was served in time, or not. I shall assume that it was.
- On 12 August 2011 Brett Wilson LLP for
the
Claimants sent a Letter of Claim and Notice ("
the
Notice") under s.10 of
the
Data Protection Act 1998 (see para 78 below) on behalf of
the
First Claimant to
the
Defendant asking for undertakings that
the
Defendant cease publication of
the
Website and removed and destroyed
the
data from
the
Website.
The
letter set out
the
relevant history of
the
Defendant's conduct in relation to
the
Website, in particular referring to his removal of postings on
the
Website for a fee.
The
letter attached four annexes. Five similar annexes were attached to
the
Particulars of Claim served with
the
Claim Form on
the
11 October 2011, and in that form they are as follows:
Annex 1: a Schedule of Complainants which lists 354 individuals and organisations named on
the
Website who have expressly indicated that they wish to "opt in" to this litigation and be considered part of
the
Represented Class. These parties, referred to hereafter as "
the
Complainants" (or "Individual Complainants" when referring only to
the
individuals who have "opted in"). They are listed under a number of headings: A
Law
Firms, which number 146, to which a further list numbered 321 to 357 are added in an Addendum; B Solicitors, that is individuals numbered 147 to 32, to which a further list numbered 332 to 361 are added in an Addendum; C Other Employees of
Law
Firms, that is individuals numbered from 291 to 159, to which a one numbered 345 is added in an Addendum; D Barristers, a single individual numbered 303; E Foreign
Law
Firms, four firms numbered 304 to 307, to which a further two numbered 351 to 353 are added in an Addendum; F Other Organisations, Hammersmith and Fulham
Law
Centre and Quickie Divorce Ltd, numbered 308 and 309; G Other Individuals, three are named, they are said to be from Ireland, Australia and Scotland respectively, and are numbered 310 to 311, to which a further two numbered 352 to 354 are added in an Addendum and they are said to be from Scotland and Australia respectively.
Annex 2: a Schedule in
the
form of a spreadsheet which details each of
the
Complainant's complaints against
the
Website. There are 245 items identified as Postings, but there are more than one Complainant in respect of most Posting. In addition to
the
column giving
the
number of
the
Posting, there are 16 columns giving details of
the
Posting and other matters. Annex 2 covers 172 pages.
Annex 3: includes printouts of Postings from
the
Website. It relates to
the
Second Claimant and covers 50 pages.
Annex 4: includes printouts of Postings from
the
Website. It relates to
the
Third Claimant and covers 50 pages.
Annex 5: includes printouts of Postings from
the
Website. It relates to
the
First Claimant and covers 25 pages.
LIBEL -
THE
WORDS COMPLAINED OF
The
words complained of by
the
Second Claimant are set out in
the
Particulars of Claim at paragraph 11.
The
Defendant admits in his Defence that these words were published by him.
The
Second Claimant complains of
the
words which refer to
the
Firm and to every other Listed Represented Firm (set out at paragraph 32 below) and also complains about and
the
specific posting which refers to
the
Firm as follows:
"HINE & ASSOCIATES SOLICITORS – BEACONSFIELD
51 AMERSHAM ROAD
BEACONSFIELD
BUCKS
HP9 2HB
Solicitor :
ALL OF THEM INC TONY HINE 01494 685588
HINE AND ASSOCIATES DON'T CARE ABOUT WHO THEY REPRESENT.
THEY JUST WANT THEIR CALL OUT FEE.
THEY ADVICE ALL CLIENTS TO SAY NO COMMENT IN ALL INTERVIEWS AND WHEN THEIR CLIENTS ARE CHARGED WITH
THE
OFFENCE INSTEAD OF HELPING THEM THEY ARE PLEASED BECAUSE THEY FEEL THEY WILL MAKE MORE MONEY WHEN THEY GO TO COURT.
A SIMPLE CASE SUCH AS A COMMON ASSAULT - HAIR PULLING A FIRST OFFENCE IF ADMITTED AND PERSON IS SINCERELY SORRY COULD GET A CAUTION.
THEY SAY NO COMMENT AND THEN YOU ARE CHARGED WITH
THE
OFFENCE.
HINE DON'T CARE FOR YOU, THEY CARE ABOUT BEING PAID.
TONY HINE IS EX POLICE AND JUST MAKES MONEY FROM OTHERS MISERY.
HE EMPLOYS SOLICITORS WITH NO EXPERIENCE AND BASIC QUALIFICATIONS AND THEN SENDS THEM TO ACT FOR DETAINED PEOPLE.
HE ADVISES HIS SOLICITORS TO MAKE SURE THEY SAY NO COMMENT.
THE
FIRM SHOULDN'T BE CALLED HINE BUT CALLED NO COMMENT.
Rate this Solicitor:
HINE & ASSOCIATES SOLICITORS - BEACONSFIELD
Have you had a problem with HINE & ASSOCIATES SOLICITORS - BEACONSFIELD or ALL OF THEM INC TONY HINE? Please let others know here: Top of Form
Total who also had problems: 43
"Solicitors from HELL" (featuring an image of a demon skull in a suit surrounded by flames)
"They move slowly and risk your deal if you need to move fast. They don't read
the
documents carefully. Your phone calls won't be returned. Your questions won't be answered. Your instructions will be ignored. They won't alert you to all potential problems. … Sounds familiar? Don't let them do it to others!"
- In para 11 of
the
Particulars of Claim (
the
second paragraph so numbered)
the
Second Claimant attributes to these words
the
following natural and ordinary meanings:
"(a)
The
Second Claimant is a shameless, corrupt, fraudulent, dishonest, incompetent and oppressive firm of solicitors which does not provide competent services, has had a justified complaint made against them and whose wrong doing should be exposed to prevent others from suffering by instructing them
(b) In a gross and flagrant breach of their professional duties to their clients,
the
solicitors employed for
the
Second Claimant put
the
financial interest of
the
firm above
the
interests of their clients and knowingly provides their clients with improper legal advice and representation".
- In his Defence at para 24 he pleads that
the
meaning in para 11(a) is denied "in so far as
the
wording referred to on
the
first line is not linked specifically to
the
Second Claimant". He admits meaning (b) in that paragraph.
The
words complained of by
the
Third Claimant are set out in
the
Particulars of Claim at paragraph 12.
The
Defendant admits in his Defence that these words were published by him.
The
Third Claimant complains of
the
words which refer to him and to every other Listed Represented Individual (set out at paragraph 32 below) and
the
specific posting which refers to
the
Third Claimant as follows:
"Smith Partnership [sic]
10 Pocklingtons Walk
Leicester
Leicestershire
Leicester
UK
Solicitor :
Kevin McGrath
0116 255 6292
He colluded [sic] with
the
police, tampered with
the
evidence.
He received large sums of money from
the
police.
He attempted to put me in prison [sic] for something that I did not do.
He took instructions from
the
police and
the
CPS instead of from me.
He failed to discuss my case with me or even receive my phone calls.
He went to
the
trial unprepared and produced no evidence to support my case.
He did not defend me at all against allegations I was charged with.
He was working with
the
police and tried his utmost [sic] to put me in prision [sic] for large sums of money.
He bullied me and shouted and me and even laughed at me when he thought he was getting his way.
Rate this Solicitor: Smith Partnership [sic]
Have you had a problem with Smith Partnership [sic] or Kevin McGrath? Please let others know here: Top of Form
Bottom of Form
Total who also had problems: 10"
[In
the
left hand under
the
words "Solicitors from HELL" featuring a demon skull in a suit surrounded by flames,
the
following words appear:]
"They move slowly and risk your deal if you need to move fast. They don't read
the
documents carefully. Your phone calls won't be returned. Your questions won't be answered. Your instructions will be ignored. They won't alert you to all potential problems. … Sounds familiar? Don't let them do it to others!"
- In para 13 of
the
Particulars of Claim
the
Third Claimant attributes to these words
the
following defamatory natural and ordinary meanings:
"(a)
The
Third Claimant is as shameless, corrupt, fraudulent, dishonest and incompetent solicitor, has had a justified complaint made against him and whose wrong doing should be exposed to prevent others from suffering by instructing him.
(b) In deliberate and flagrant breach of his duties to a client,
the
Third Claimant colluded with police and tampered with evidence in return for large sums of money with
the
aim of having his client imprisoned for a crime which
the
Third Claimant knew
the
client had not committed".
- In his Defence (para 27)
the
Defendant admits that
the
words complained of by
the
Third Claimant bear
the
meanings attributed to them by him.
The
words and images relied upon in relation to
the
claim by
the
Represented Listed Firms and
the
Represented Listed Individuals relate to
the
following publications on
the
Website.
The
Defendant admits in his Defence that these words were published by him, subject to qualifications noted below.
(a) (i) Between 10 October 2010 and 9 February 2011 (or later but no later than 22 April 2011)
the
publication of
the
name of each solicitor, solicitors firm, individual and organisation on a website known as "Solicitors from Hell". Until February 2011
the
title bar on
the
home page and almost every page of
the
website was "Solicitors from HELL – Corrupt negligent dishonest crooked fraudulent lawyers". This is pleaded in paras 7(a), 11(a) and 12(a) of
the
Particulars of Claim. In his Defence (para 18)
the
Defendant pleads:
"Paragraph 7(a) is admitted but thereafter
the
title of
the
home page was replaced with 'Solicitors From HELL – Complaints against Solicitors' but no other page ever contained, in
the
title bars,
the
wording 'Solicitors From HELL – Corrupt negligent dishonest crooked fraudulent lawyers".
The
Defendant in his Defence (paras 24 and 25) admits paras 11(a) and 12(a) of
the
Particulars of Claim, subject to
the
point noted in para 28 above.
(ii) From 23 April 2011 (or earlier but no earlier than 10 February 2011)
the
publication of
the
name of each solicitor, solicitors firm, individual and organisation on a website known as "Solicitors from Hell". This is pleaded in para 9(a) of
the
Particulars of Claim.
(b)
The
express branding of each and every solicitor, solicitors firm and other individual and organisation as a "Solicitor from Hell" and association with
the
"Solicitors from Hell" image. This is pleaded in
the
Particulars of Claim at paras 7(b) (10 October 2010 and 9 February 2011 (or later but no later than 22 April 2011)) and 9(b) (from 23 April 2011 (or earlier but no earlier than 10 February 2011)). In his Defence (paras 19 and 22)
the
Defendant pleads in relation to paragraphs 7(b) and 9(a) and (b) of
the
Particulars of Claim that they "are admitted in that complainants feel justified in associating
the
solicitor complained about as one that has given them a hell of a time.
The
complainant has
the
right to say which firm
the
individual solicitor belongs to and
the
public have a right to know which firm
the
individual solicitor is a member of".
(c)
The
following words on
the
Website home page from 10 October 2010 until 9 February 2011 (or later, but no later than 22 April 2011) which referred to each and every solicitor, solicitors' firm and other individual and organisation named on
the
Website during this period (para 7(c) of
the
Particulars of Claim, which
the
Defendant admits in para 20 of his Defence):
"NAME and SHAME. Those shady Solicitors. No need to register or even leave your name. Click on
the
link below and add them to our list of 'Solicitors from Hell' (No need to Register or make any payments). Now with over ONE MILLION Hits per month, this website will expose these shameless, corrupt, moneygrabbing, incompetent specimens of humanity! (AND it will make you feel better - Guaranteed!)" "…To check if your scum bag, sorry, solicitor is registered contact
the Law Society
…" "Remember: 99% of Solicitors give
the
rest a bad name." "Corrupt negligent dishonest crooked fraudulent lawyers (But not necessarily ALL listed)"
(d)
The
following words on
the
Website home page since 23 April 2011 (or earlier, but no earlier than 10 February 2011), which continue to be published, which referred to each and every solicitor, solicitors' firm and other individual and organisation listed on
the
Website during this period (para 9(c) of
the
Particulars of Claim, which
the
Defendant admits in para 22 of his Defence):
"Have you been LET DOWN by your Solicitor? Do you feel that there is no recourse when this happens? Well, you may have a point! It seems that today's legal system unfairly protects dubious practitioners. However... under Article 10 of
the
European Convention on Human Rights, you have
the
right to freedom of speech and expression to voice your complaint! But it must accurate and truthful. You can complain here. RIGHT NOW! NAME and SHAME your OPPRESSOR Problem Solicitor? No need to register or even leave your name. Click on
the
link below and add them to our list of 'Solicitors from Hell'."
[In
the
left hand under
the
words "Solicitors from HELL" featuring a demon skull in a suit surrounded by flames,
the
following words appear:]
"They move slowly and risk your deal if you need to move fast. They don't read
the
documents carefully. Your phone calls won't be returned. Your questions won't be answered. Your instructions will be ignored. They won't alert you to all potential problems. ….Sounds familiar? Don't let them do it to others!"
- In para 8 of
the
Particulars of Claim
the
Claimants attribute
the
following defamatory natural and ordinary meaning to
the
words pleaded in para 7 of
the
Particulars of Claim, "that each solicitor, solicitors' firm, individual or organisation is shameless, corrupt, fraudulent, dishonest and incompetent whose wrongdoing should be exposed to prevent others from suffering by dealing with them". In his Defence (para 21)
the
Defendant denies that these words bear this meaning. He pleads that
"it will be plain to any reader of a complaint that it is
the
individual complained about that is
the
focus of
the
review and not
the
whole firm which that named individual belongs to. Each complaint ultimately turns on
the
particular wording employed by
the
complainant. A firm is also vicariously liable for
the
misconduct of its individual members".
- In para 10 of
the
Particulars of Claim
the
Claimants attribute
the
following defamatory natural and ordinary meaning to
the
words pleaded in para 9 of
the
Particulars of Claim, "that each solicitor, solicitors' firm and other individuals and organisations listed acts oppressively, does not provide competent legal services, has been
the
subject of justified complaints and should not be used or instructed". In his Defence (para 23)
the
Defendant pleads that "
the
final paragraph of para 9(c) of
the
Particulars of Claim were not meant and should not be understood to apply specifically to all
the
solicitors listed on
the
Website.
The
wording was intended as a general example of what could happen".
- As noted above (para 12)
the
Defendant has not pleaded any defence known to
the law
of libel. He has not pleaded truth or honest opinion, and although he mentions Art 10 and public service, he has not formulated any defence of qualified privilege on a basis recognised by
the law
.
EVIDENCE FOR
THE
SECOND AND THIRD CLAIMANTS
The
evidence in relation to
the
claim of
the
Second Claimant is in a witness statement by Mr Andrew Morris. He is a solicitor and an employee of
the
Second Defendant. He states
the
following.
The
Second Claimant was established in 2001.
The
firm has eight partners and 102 employees (including 43 duty solicitors) spread over eight offices. These are situated in Beaconsfield, Bracknell, Cheltenham, Gerrards Cross, Oxford, Princes Risborough, Swindon and West Drayton.
The
firm specialises in criminal
law
, family
law
, conveyancing and employment. It is one of
the
largest criminal
law
firms in
the
country. It holds Lexcel accreditation.
The
firm monitors client satisfaction by selecting each month two closed matters for each department and sending questionnaires to
the
clients. Feedback is generally very positive and some of
the
comments are placed on
the
testimonial section of
the
firm's website.
- In June or July 2010 partners became aware of
the
postings relating to
the
firm on
the
Website. This was as a result of staff conducting Google searches for
the
name of
the
firm. Such searches are undertaken occasionally in order to monitor
the
firm's online presence from a marketing point of view. It is in this way that
the
words complained of were discovered. Since
the
posting is anonymous it has proved impossible for
the
firm to identify
the
author.
- Mr Morris states that
the
words complained of are false and a fabrication. He sets out at some length
the
considerations which may lead solicitors who are partners or employees of
the
firm to advise a client whether or not to comment in interview with
the
police. Depending upon
the
circumstances,
the
client will be advised one way or
the
other.
The
advice will be what
the
solicitor concerned believes to be appropriate and in
the
best interest of
the
client. All members of
the
firm's staff who advise at police stations have undergone
the
full police accreditation as required by
the Law Society
.
- Since
the
words complained of allege serious criminal, unethical and dishonest behaviour on
the
part of
the
partners and employees of
the
firm, it is almost inevitable that
the
posting on
the
website must have caused significant damage to
the
firm's reputation. Integrity is essential when dealing with criminal litigation. Clients place considerable trust in solicitors who advise them.
The
Website postings have had an effect on staff morale, in that employees are aware of its existence and are alarmed that
the
firm's reputation is being attacked in such a manner. Members of staff are upset after working hard to protect
the
interests of clients around
the
clock (often attending police stations outside normal working hours) to be accused of being involved in a money making conspiracy.
- It is common practice for clients to undertake research on
the
internet prior to selecting a lawyer or
law
firm. This is particularly
the
case with
the
type of business crime work which Mr Morris now specialises in.
The
postings have produced prominent adverse search engine listings for anyone undertaking a search in
the
firm's name.
The
listings themselves include snippets of defamatory statements. Over
the
past year
the
firm has submitted over half a dozen online requests to Google in relation to
the
adverse search engine links. This process was frustrated because each time Google agreed to remove a link,
the
Defendant added a new one. At
the
present time links to
the
listings for
the
posting have been removed from www.google.co.uk but remain in other Google domains. As at 22 September 2011 prominent adverse listings appeared on Bing (fourth on
the
first page), Yahoo! (fourth on
the
first page) and Alta Vista (tenth on
the
first page). It is not practicable for
the
firm continually to monitor these links and to have to persuade
the
various different search engine companies to remove them.
- Mr Morris who has been informed by
the
partners of
the
Second Claimant that candidates for vacancies in
the
firm have raised
the
posting during interview. Applicants for positions conduct internet searches. It is therefore likely that prospective employees have been deterred from applying for a position with
the
firm or taking up and offer.
The
partners of
the
firm are aware that
the
Defendant has been willing to remove
the
postings for a payment of
the
sum of £299.
The
firm has been unwilling to pay this fee as it considered it to be extortion.
The
firm has been reluctant to instigate proceedings against
the
Defendant because they have been aware of reports in which he states he has no assets.
- There is no conceivable basis upon which
the
Defendant could justify
the
allegations within
the
posting and no other grounds upon which he could defend a claim for libel.
- Since
the
issue of
the
present proceedings on 11 October 2011
the
Defendant has altered
the
posting relating to
the
Second Claimant. At some point on or before 17 October 2011 he amended
the
home page to include
the
following prominent message:
"Have you been LET DOWN by Hine Solicitors – Beaconsfield or
The
Smith Partnership – Leicester? Please CONTACT US urgently- click here".
- This message has since been removed, but it appears on a print out dated 17 October 2011 exhibited to
the
witness statement. However,
the
Defendant added further words which appear on a print out dated 7 November 2011 also exhibited to
the
witness statement. At
the
foot of
the
posting which includes
the
words complained of by
the
Second Claimant there appears:
"Have you had a similar problem with this firm? Please contact me using info@SolicitorsFromHell.co.uk or use
the
CONTACT FORM and tell me all about it. Rick
Kordowski
".
- Mr Morris states that he has checked postings relating to other firms on
the
website.
The
only other posting with such a message is
the
posting that relates to
the
Third Claimant.
The
Third Claimant is a solicitor of nineteen years experience and a partner in
the
firm
The
Smith Partnership. He joined
the
firm in 1991 and became a partner in 1997. In 1996 he became head of
the
crime team in
the
firm's Leicester office. He specialises in criminal litigation and undertakes general criminal defence work as well as corporate defence work and regulatory work. He advises individuals, companies and firms of accountant in relation to investigations by Her Majesty's Revenue and Customs and other bodies.
The
firm has an excellent entry in Legal 500 and
the
Third Claimant exhibits an entry referring specifically to himself:
"Kevin McGrath is noted for his recent successes defending local authority prosecutions".
The
Smith Partnership was established in 1987. It has 28 partners and over 200 members of staff. It has eight offices: two in Leicester, two in Derby, two in Burton, one in Swadlingcote and one in Stoke on Trent. It is one of
the
largest firms in
the
region. It has a number of accreditations, including Lexcel.
The
Third Claimant's department, crime, is ranked as "second tier" firm by
the
Legal 500 and a "band three firm" by Chambers and Partners.
The
firm monitors client satisfaction by sending out questionnaires.
The
feedback that
the
Third Claimant receives is very positive. He has an unblemished disciplinary record and has never been
the
subject of a complaint from a client.
The
Third Claimant became aware that he was
the
subject of a posting on
the
Website on 15 May 2007. In view of
the
serious nature of
the
allegations he immediately disclosed
the
existence of
the
posting to
the
firm's managing partner. He also felt it necessary to reassure partners that there was no foundation to any of
the
allegations made in
the
posting. He found this extremely embarrassing. He was also offended by
the
terminology used on
the
homepage an example of which on 12 May 2010 stated:
"With over 60 thousand visitors per month, this website will expose those money grabbing Wankers! (and it will make you feel better – Guaranteed!)".
The
Third Claimant states that
the
allegations within
the
posting are false. There is no foundation for any of them. He has never engaged in any activity alleged in
the
posting. It will be quite impossible, he states, for
the
Defendant to produce any evidence to suggest otherwise. He has always ensured that cases are fully prepared for trial. He has a reputation for criminal defence work and is always polite and courteous to clients.
The
suggestion that he "bullied"
the
author or laughed at him or her is nonsensical. He would never behave in such a way toward a client. He does not ignore telephone calls from clients. His firm has a policy that all messages are returned within 24 hours and he adheres to this policy. He always gives clients advice on their cases. Typically this will be done in a consultation and subsequently at a further consultation or over
the
telephone. Advice will be confirmed in writing. He has never been
the
subject of any complaint, let alone one that suggested he was corrupt or negligent or rude.
- He states that he has found or continues to find
the
Website very distressing.
The
posting goes to
the
very heart of what he does as a defence solicitor. It suggests not only incompetence but also that he cannot be trusted. Integrity and independence are essential characteristics for a criminal lawyer.
The
posting impacts upon his position in
the
firm and within
the
legal community. He is constantly being asked about
the
posting, and on occasion, when it is raised, he finds it extremely embarrassing and uncomfortable to deal with.
The
entry is common knowledge within
the
local legal community. He has been asked about it by prosecutors, court staff and other lawyers. Some clients have even referred to it. He attended a family party last year and one of his brothers in
law
referred to it. Additionally during this summer he was contacted by an old university friend who had seen
the
posting.
The
Third Claimant has conducted his own researches using search engines. He sets out
the
results of this in some detail in his witness statement. Although
the
evidence he gives is different in detail from
the
evidence of Mr Morris,
the
effect of it is substantially
the
same. It is not necessary to set out
the
Third Claimant's evidence further.
HARASSMENT
The
1997 Act, so far as material, provides:
"(1) A person must no pursue a course of conduct – (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of
the
other
(1A) A person must not pursue a course of conduct—
(a) which involves harassment of two or more persons, and
(b) which he knows or ought to know involves harassment of those persons, and
(c) by which he intends to persuade any person (whether or not one of those mentioned above)—
(i) not to do something that he is entitled or required to do, or
(ii) to do something that he is not under any obligation to do.
(2)
The
person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of
the
same information would think
the
course of conduct amounted to or involved harassment of
the
other.
(3) Subsection (1) or (1A) does not apply to a course of conduct if
the
person who pursued it shows – (a) that it was pursued for
the
purpose of preventing or detecting crime, (b) that it was pursued under any enactment or rule of
law
or to comply with any condition or requirement imposed by any person under any enactment, or (c) that in
the
particular circumstances
the
pursuit of
the
course of conduct was reasonable. …
3 (1) An actual or apprehended breach of Section 1(1) may be
the
subject of a claim in civil proceedings by
the
person who is or may be
the
victim of
the
course of conduct in question….
3A Injunctions to protect persons from harassment within section 1(1A)
(1) This section applies where there is an actual or apprehended breach of section 1(1A) by any person ("
the
relevant person").
(2) In such a case—
(a) any person who is or may be a victim of
the
course of conduct in question, or
(b) any person who is or may be a person falling within section 1(1A)(c), may apply to
the
High Court or a county court for an injunction restraining
the
relevant person from pursuing any conduct which amounts to harassment in relation to any person or persons mentioned or described in
the
injunction.
(3) Section 3(3) to (9) apply in relation to an injunction granted under subsection (2) above as they apply in relation to an injunction granted as mentioned in section 3(3)(a).
7(2) References to harassing a person include alarming
the
person or causing
the
person distress
(3) A 'course of conduct' must involve – (a) in
the
case of conduct in relation to a single person see Section 1 (1)) conduct on at least two occasions in relation to that person or (b) in
the
case of conduct in relation to two or more persons (see section 1(1A)), conduct on at least one occasion in relation to each of those persons.…
(4) "Conduct" includes speech".
- Thomas
v
News Group Newspaper Ltd [2002] EMLR 78 is an example of speech, in
the
form of a publication in a newspaper, which was held by
the
Court of Appeal to be capable of constituting harassment. In that case
the
publishers of
The
Sun included in that newspaper a number of articles referring to
the
claimant, who they identified on each occasion as black. She was black.
The
Court of Appeal held that in their context it was arguable that
the
articles were racist, and likely to cause
the
claimant distress.
The
fact that it was true that she was black was immaterial, because
the
test is whether in
the
circumstances
the
conduct was reasonable or otherwise within a defence recognised by
the
PHA.
- Although passed before
the
Human Rights Act 1998 ("HRA"),
the
PHA is (like
the law
of libel and
the
DPA) one of
the
many different
laws
that give effect to
the
obligation of
the
state to prevent interference with
the
right of individuals to protection of their private lives (ECHR Art 8). In Wainwright
v The
Home Office [2003] UKHL 53 [2004] 2 AC 406 at para 18 Lord Hoffmann explained this as follows:
"There are a number of common
law
and statutory remedies of which it may be said that one at least of
the
underlying values they protect is a right of privacy. Sir Brian Neill's well known article "Privacy: a challenge for
the
next century" in Protecting Privacy (ed B Markesinis, 1999) contains a survey. Common
law
torts include trespass, nuisance, defamation and malicious falsehood; there is
the
equitable action for breach of confidence and statutory remedies under
the
Protection from Harassment Act 1997 and
the
Data Protection Act 1998".
- Mr Tomlinson submits as follows.
The
publication by
the
Defendant on
the
Website of
the
name of
the
solicitors and individuals, including
the
Third Claimant, in
the
knowledge that such publications will inevitably come to their attention on more than one occasion and on each occasion cause them alarm and distress constitutes harassment under
the
PHA. Listing any of
the
Represented Individuals would also constitute harassment for
the
same reason.
- In relation to
the
Third Claimant,
the
Claimants rely on
the
facts and matters set out in
the
Particulars of Claim at paragraph 19 and
the
witness statement of
the
Third Claimant, which he summarised as follows.
The
Defendant published allegations on
the
Website about
the
Third Claimant set out in para 29 above.
The
publication has been drawn to
the
Third Claimant's attention by many people, including prosecutors, court staff, other lawyers, clients. Each time
the
third Claimant's attention has been drawn to
the
posting he has found it to be extremely embarrassing.
The
publication about
the
Third Claimant has caused him repeated distress and alarm. These matters are set out in
the
witness statement of Third Claimant made on 10 November 2011 at paras 24, 30 and 34.
- As far as
the
Represented Listed Individuals are concerned,
the
inclusion of each individual on a website stating that they are a "Solicitor from Hell" containing, inter alia,
the
general statements set out in
the
words complained of cited above and therefore alleging (at
the
very least) that they are oppressive, that they do not provide competent services, have had a justified complaint made against them and ought not to be instructed will, in each and every case, cause distress and alarm.
The
publication is an ongoing one on a prominent website; accordingly
the
distress and alarm caused by
the
publication will also be continuous. It is reasonable to infer in every case that those posted would suffer such distress and alarm on at least two occasions.
- In support of their case in relation to
the
Represented Listed Individuals
the
Claimants rely on:
i)
the
example of
the
Third Claimant for whom
the
postings caused repeated distress and alarm;
ii)
the
"Summary of Postings" in
the
Schedule of Complaints annexed to
the
Particulars of Complaint. An analysis of these complaints is set out in Mr Wilson's witness statement of 11 October 2011 at para 85. He shows:
a) 48% of
the
postings allege that
the
solicitor was involved in dishonesty of some form.
b) 58% of
the
postings allege that
the
solicitor behaved unethically.
c) 67% of
the
postings allege that
the
solicitor was negligent.
d) 84% of
the
postings allege that
the
solicitor provided inadequate professional services and/or was incompetent.
e) 33% of
the
postings allege that
the
solicitor was guilty of overcharging.
- As explained above,
the
Defendant has had this Schedule of Complaints since August 2011. Reference to this analysis was also contained in
the
letter of claim. No response has been received from
the
Defendant to suggest that this analysis is incorrect.
- Mr Tomlinson submits that
the
Court can properly infer that
the
attention of
the
Represented Listed Individuals will be drawn to
the
Website (either directly or via another search engine or by third parties) on two or more occasions.
The
Website is a prominent one that has featured in
the
national media and appears to be widely used by members of
the
public. About half a dozen postings are added to
the
Website each week, as stated by Mr Wilson in para 22 of his first witness statement. It appeared as
the
third item in
the
drop down 'suggestions' box when
the
word "Solicitor" was typed into
the
Google search engine on 23 August 2011 (Exhibit IMW12 to
the
witness statement of Mr Wilson). There is evidence to a similar effect
the
Report of Mr Dilloway, a member of
the
British Computer
Society
, whose report is Exhibit IMW13 to
the
witness statement of Mr Wilson.
The
Website appears on
the
results page if a Google search is conducted on
the
name of an individual listed on
the
Website. This is a feature that is advertised by
the
Defendant.
- Even if
the
individual themselves did not find
the
listing, it is inevitable that some third parties would do so and
the
individual would be notified of it. Any individual named on
the
Website suffers continuing publication of extremely serious and highly defamatory allegations against them. In
the
circumstances, and with a view of
the
facts set out above, it is reasonable to infer that such individuals would suffer alarm and distress on more than one occasion.
The
Claimants refer to
the
Schedule of Complaints which demonstrates that in almost every case where a posting was made about an individual complainant it has caused them anxiety/distress.
- Mr Tomlinson submits that
the
Court can also infer that
the
Defendant knows or ought to know that that this conduct amounts to harassment. In support of this
the
Claimants will rely upon
the
following:
i)
The
fact that it is obvious that
the
naming of an individual on a website with
the
name "solicitors from Hell', along with
the
comments made on
the
general pages, will cause that individual distress and alarm.
ii)
The
claims brought against
the
Defendant by other parties in respect of
the
Website in which it is clear that they have suffered considerable distress as a result of being listed on
the
Website. This is clear from a number of
the
judgments in relation to quantum that
the
Defendant is well aware of
the
impact that
the
Website has on those listed on it. For example, in Crawford
v Kordowski
(unreported, 16 December 2010) Gray J referred to
the
upset and anxiety that
the
publications about Ms Crawford were causing her, (see paragraphs 7-8 of
the
transcript). She is another young victim, having qualified in July 2009.
The
judgment recites evidence that Ms Crawford gave, which is similar to
the
evidence given in this case by Mr Morris and
the
Third Claimant. Similar comments about
the
distressing nature of being
the
subject of allegations on
the
Website were made in
the
case of Mazzola
v Kordowski
(unreported 15 December 2010, Gray J) and in Farrell
v Kordowski
[2011] EWHC 2140 (QB) Lloyd Jones J at para 20.
iii)
The
numerous individuals who have (and must have) contacted
the
Defendant informing him that they are alarmed and/or distressed as a result of being named on
the
Website. See, for example,
the
e-mail dated 17 June 2010 exhibited by
the
Defendant to his witness statement, where a Mr Lloyd informed
the
Defendant that
the
posting about a solicitor who was his partner was "just harassment" and asked for
the
posting to be removed.
The
Defendant replied
the
same day stating that "a fee would delete
the
other entries against your firm", and, later stating "I am likely (as in most cases of deletion) to be harassed myself by
the
original complainant".
The
burden of proof in raising any defence to
the
claim of harassment lies on
the
Defendant. Without prejudice to this, it is clear that no defence exists (and none has been suggested to date by
the
Defendant), as
the
course of conduct does not fall into any of
the
categories set out in section 1(3) of
the
PHA.
The
Claimants rely upon, amongst other matters,
the
fact that there is an existing method for complaining about solicitors via
the
Solicitors Regulation Authority, which properly allows both sides of
the
complaint an opportunity to be heard before determining each complaint. In addition, there is a Legal Ombudsman service to which complaints can be made by consumers; as
the
Defendant points out in paragraph 39 of his Defence,
the
Legal Ombudsman is in
the
future going to name and publish
the
individual lawyers and firms "where there is a pattern of complaints it when it is in
the
public interest to do so". By contrast,
the
Website is a forum that encourages and invites
the
continuing publication of defamatory, unpleasant and often highly abusive allegations about solicitors and other individuals in a wholly unverified form; and where it was previously advertised that
the
publications could be removed upon payment of a fee, a practice that in fact appears to still continue despite no longer being advertised.
- As to
the
Represented Individuals, Mr Tomlinson submits that it is clear that there is a serious risk that any one of
the
Represented Individuals may at any time in future be
the
subject of a posting on
the
Website, which actively solicits complaints.
- Referring in his Skeleton argument to
the
harassment and DPA claims,
the
Defendant argues that if
the
course of conduct complained of is words, and those words can be defended under
the laws
of libel, then they cannot be harassment. That would be to circumvent
the laws
of libel.
- This is a strange argument for him to put forward, since he has made no attempt to defend
the
words complained of by reference to
the law
of libel. But even if he had, and had done so successfully, I do not accept that that would preclude a claim in harassment.
The
different causes of action are directed to protecting different aspects of
the
right to private life. A claim in libel is directed to protecting
the
right to reputation.
The
claim in harassment is to protect persons from being subjected to unjustifiable alarm and distress.
The
claim under
the
DPA is wider than
the
claim under PHA, but includes
the
aim of protecting persons from being subjected unfairly and unlawfully to distress.
- I accept
the
submission of Mr Tomlinson. Even if an allegation posted on
the
Website were true (or if there is no evidence from a person or firm named on
the
Website that it is false)
the
use of
the
Website as it has been used could not, even arguably, come within
the
PHA s.1(3). In my judgment it is plain beyond argument that it was not pursued for
the
purpose of preventing or detecting crime; not pursued under any enactment or rule of
law
or to comply with any condition or requirement imposed by any person under any enactment; and was not reasonable.
DATA PROTECTION
The
DPA s.1 provides that 'personal data' means "data which relate to a living individual who can be identified (a) from that data…" It defines 'data' as information which is processed or recorded in a manner specified, and which includes storing and publishing information on a searchable website such as
the
Website. Where
the
data relates to
the
commission or alleged commission of any offence
the
data will be "sensitive personal data" (s.2).
The
Data Controller is defined in s.1 of
the
DPA as
the
person who, either alone or jointly or in common with other persons, determines
the
purposes for which and
the
manner in which any personal data are, or are to be, processed. DPA s.4(4) of
the
DPA provides that it is
the
duty of a data controller to comply with
the
data protection principles in relation to all
the
personal data with respect to which he is
the
data controller. These include:
i)
The
First Data Protection Principle: that personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of
the
conditions in Schedule 2 is met and in
the
case of sensitive personal data, at least one of
the
conditions set out in Schedule 3 is met.
ii)
The
Fourth Data Protection Principle: that personal data shall be accurate and, where necessary, kept up to date.
iii)
The
Sixth Data Protection Principle: that personal data shall be processed in accordance with
the
rights of data subjects under
the
Data Protection Act 1998.
The
reference to 'lawfully' in
the
First Data Protection Principle applies to any form of conduct that is unlawful, including breach of confidence, libel, and harassment. As Patten J said in Murray
v
Express Newspapers Ltd [2007] EWHC 1908 (Ch) [200] EMLR 22 at para [72]:
"It seems to me that
the
reference to lawfully in Schedule 1, Part 1 must be construed by reference to
the
current state of
the law
in particular in relation to
the
misuse of confidential information.
The
draftsman of
the
Act has not attempted to give
the
word any wider or special meaning and it is therefore necessary to apply to
the
processor of
the
personal data
the
same obligations of confidentiality as would otherwise apply but for
the
Act"
The
DPA s.10(1) of sets out
the
right to prevent processing likely to cause damage or distress. It applies save in a case where (a) any of
the
conditions in paragraphs 1 to 4 of Schedule 2 is met, or (b) in other cases prescribed by Order (neither of which are relevant to
the
facts of
the
current case).
- S.10(1) provides (subject to conditions of which there is no evidence in this case) that:
"(1) … an individual is entitled at any time by notice in writing to a data controller to require
the
data controller at
the
end of such period as is reasonable in
the
circumstances to cease, or not to begin, processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is
the
data subject, on
the
ground that, for specified reasons—
(a)
the
processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
(b) that damage or distress is or would be unwarranted."
The
case for
the
Third Claimant is as follows.
The
Defendant is
the
data controller. This is not in dispute:
the
Defendant has referred to himself as such in
the
opening paragraph of his witness statement. He processes
the
data.
The
data processed by
the
Defendant about
the
Third Claimant is personal data, and sensitive personal data, as it included statements (which are false) about
the
alleged commission of offences by
the
Third Claimant.
- In breach of
the
First Data Protection Principle
the
Defendant has not processed
the
personal and sensitive personal data of
the
Third Claimant fairly and lawfully.
The
Defendant has processed
the
said data in a grossly unfair and unlawful way, in particular by, publishing highly offensive defamatory allegations about
the
Third Claimant on
the
Website (see paragraph 29 above); and by pursuing a course of conduct against
the
Third Claimant that amounts to harassment contrary to
the
PHA. None of
the
conditions in Schedule 2 of
the
DPA is met by
the
Defendant in respect of
the
processing of this data on
the
Website. In breach of
the
Fourth Data Protection Principle
the
personal and sensitive personal data about
the
Third Claimant processed by
the
Defendant and published on
the
Website are false and accordingly wholly inaccurate. In breach of
the
Sixth Data Protection Principle
the
Defendant did (and does) not process personal and sensitive data of
the
Third Claimant in accordance with his rights.
- As mentioned above, on 12 August 2011
the
Claimants' solicitor gave
the
Defendant formal notice under section 10(1) of
the
DPA that
the
individual complainants, who include
the
Third Claimant, required
the
Defendant to cease
the
processing of their personal data (i.e. to remove
the
offending material from
the
Website and destroy any copies retained elsewhere) as
the
processing of this data was (and continues) causing them unwarranted damage and distress. Additionally,
the
Claimants' solicitor required
the
Defendant to agree not to process any data in
the
manner complained of in
the
future. As a result of
the
Defendant's failure to comply with
the
Notice, he has breached
the
Sixth Data Protection Principle.
The
Defendant did not state that he considered
the
notice to be unjustified (as he could have done under section 10(3)(b) of
the
DPA).
- Accordingly,
the
Third Claimant is entitled to and seeks an order under section 10(4) of
the
Data Protection Act that
the
Defendant complies with
the
Notice
The
case for
the
Represented Listed Individuals is as follows.
The
postings about solicitors and other individuals on
the
Website contain personal data and, in many instances, sensitive personal data (for example, cases such as that of
the
Third Claimant, where
the
posting contains allegations about
the
alleged commission of any offence by
the
said solicitor or individual).
- In breach of
the
First Data Protection Principle
the
Defendant has not processed
the
personal data of
the
solicitors and other individuals named on
the
Website fairly and lawfully.
The
Defendant has processed
the
said personal data in a grossly unfair and unlawful way by, in particular, (a) publishing highly offensive defamatory allegations about these solicitors and other individuals on
the
Website; (b) pursuing a course of conduct against these solicitors and other individuals that amounts to harassment contrary to
the
PHA; (c) on numerous occasions refusing to remove
the
posting about a solicitor or other individual unless
the
Defendant is paid a fee. This is not permitted by
law
and is disreputable. (d) None of
the
conditions in Schedule 2 of
the
DPA 1998 is met by
the
Defendant in respect of
the
processing of
the
said personal data on
the
Website.
- As to condition (c) in
the
preceding paragraph,
the
Claimants rely on
the
Defendant's conduct in
the
case of Megan Philips
v Kordowski
[2010] EWHC 2803 (QB) paras [10]-[12]: he did not take down
the
posting but demanded money for them to be taken down. This practice appears to be ongoing, despite
the
removal of 'Administration and Monitoring' page from
the
Website. See below.
- In breach of
the
Fourth Data Protection Principle
the
personal and sensitive personal data about solicitors and other individuals processed by
the
Defendant and published on
the
Website is not accurate, indeed it is usually seriously inaccurate.
The
Claimants rely upon
the
following, amongst other matters: (a)
The
wholly inaccurate and untrue allegations processed and published by
the
Defendant via
the
Website about
the
Third Claimant; (b)
The
Schedule of Complaints which sets out and describes how
the
personal data of solicitors and other individuals processed and published by
the
Defendant via
the
Website is inaccurate. (c)
The
Defendant's failed attempts to justify defamatory allegations in
the
many cases brought against him for libel in respect of
the
defamatory publications on
the
Website as evidence of inaccurate information; in breach of
the
Sixth Data Protection Principle
the
Defendant did (and does) not process personal data of
the
solicitors and other individuals who are Individual Complainants in accordance with their rights, as he has failed to comply with
the
request made in
the
Complaints' solicitor's letter dated 12 August 2011.
- As a result,
the
Third Claimant, on behalf of
the
Represented Listed Individuals, is entitled to and seeks an order under section 10(4) of
the
DPA that
the
Defendant complies with
the
Notice.
THE
INFORMATION COMMISSIONER
- Part
V
of
the
DPA under
the
title 'Enforcement' and Part VI under
the
headings 'Functions of Commissioner' contain detailed provisions as to how
the
Commissioner is to promote
the
observance of
the
requirements of
the
DPA by data controllers. These provisions are in addition to
the
rights conferred on individuals by
the
DPA.
- Accordingly on 22 November 2011
the
Chief Executive of
the Law Society
wrote to
the
Commissioner to complain about
the
website. On 6 January 2011
the
Commissioner replied personally in a three page letter explaining why he felt unable to intervene.
The
Commissioner has not been in attendance or represented at these proceedings and I have not read
the
letter of 22 November. I am not conducting a review of his decision. What follows is therefore subject to that important qualification. However, I have to have regard to
the
contents of
the
letter because
the
observations made in it are ones which could be adopted by
the
Defendant, and which in any event
the
court should consider coming as they do from such a source.
The
letter refers to s.36 of
the
DPA which reads as follows:
"Personal data processed by an individual only for
the
purposes of that individual's personal, family or household affairs (including recreational purposes) are exempt from
the
Data Protection principles under provisions of Parts II and III".
The
letter includes
the
following:
"
The
inclusion of
the
"domestic purposes" exemption in
the
Data Protection Act (s.36) is intended to balance
the
individual's rights to respect for his/her private life with
the
freedom of expression. These rights are equally important and I am strongly of
the
view that it is not
the
purpose of
the
DPA to regulate an individual right to freedom of expression – even where
the
individual uses a third party website, rather than his own facilities, to exercise this. (
The
s.36 exemption clearly did not anticipate individuals using third party websites to carry out their 'personal' processing).
The
situation would clearly be impossible were
the
Information Commissioner to be expected to rule on what it is acceptable for one individual to say about another be that a solicitor or another individual. This is not what my office is established to do. This is particularly
the
case where other legal remedies are available – for example,
the law
of libel or incitement. ….
There is still a considerable lack of certainty concerning
the
extent to which website operators are legally responsible for
the
content they host. Although solicitorsfromhell / Mr
Kordowski
may well be a data controller, and is indeed is registered as such,
the
instigators of
the
website content are generally private individuals expressing their own views. Their activity attracts
the
s.36 exemption, which emanates ultimately from Article 10 of
the
European Convention on Human Rights. In giving due weight to freedom of expression in cases like this we have to accept that enforcing
the
data protection principles in respect of
the
activities of
the
website owner is likely to entail a disproportionate level of interference with
the
rights of
the
contributors, however unpleasant their contributions might be. . …
As a matter of good practice we will take up problems, in general terms, with website operators where a significant issue is brought to our attention. For example, we have helped individuals to have their social networking profiles taken down. However, this approach only works with reputable companies with a presence in
the
UK. …
There is indeed a growing social problem in individuals posting offensive material about each other, including
the
providers of legal and other services. There may well be no regulatory solution to this, given
the
ease of which "ratings" and other websites can be put up and content posted on them…
We will continue to monitor complaints such as yours about websites like Solicitors from Hell. I do sympathise with solicitors and others who may find it extremely difficult, and in many cases impossible, to have offensive material about them removed from
the
internet. Perhaps this is a case where
the law
is out of step with technology. However, I am afraid
the
DPA is simply not designed to deal with
the
sort of problem that you have brought to my attention. "
- I have considerable sympathy with
the
Commissioner in what he says about
the
practical difficulties raised by cases such as
the
present. It is also beyond doubt that
the
DPA was not designed to deal with
the
way in which
the
internet now works.
The
DPA implemented Directive 95/46/EC [1995] OJ L281/31.
The
purpose of
the
Directive was to give effect in
the
context of data protection to
the
Art 8 rights of
the
ECHR (right to respect for private life). See Recitals (8) to (12). It is a privacy statute, although its scope is limited by a number of provisions, including
the
definition of data in s.1 and
the
application of
the
Act delimited in s.5.
- In 1995 search engines were in their infancy. Google was incorporated in 1998. There have been many developments since that time, including
the
increasing use of third party facilities.
- However, I have to say that I do not understand how it could be said that s.36 has any application to
the
present case. It is true that s.36 gives protection to Art 10 rights limited to personal, family and household affairs. And s.32 gives protection to Art 10 rights in journalism, literature and
the
arts. Those who drafted
the
directive and
the
DPA omitted to address generally
the
relationship between
the
Art 8 rights which
the
Directive sought to implement, and
the
Art 10 rights which must also be respected, in accordance with both EU and English
law
. If there is a provision of
the
DPA which would give effect to Art 10 rights engaged in
the
activities of
the
Defendant, it would be s.32 (journalism, literature and art). Journalism that is protected by s.32 involves communication of information or ideas to
the
public at large in
the
public interest. Today anyone with access to
the
internet can engage in journalism at no cost. If what
the
Defendant communicated to
the
public at large had
the
necessary public interest, he could invoke
the
protection for journalism and Art 10. But for reasons given in
the
many judgments in cases against him referred to in this judgment, he cannot make any such claim, nor any claim at all for
the
protection under Art 10 for what he has communicated, because what he does is against
the
public interest. It has equally been established many time that
the
Defendant is responsible in
law
for what he communicates through
the
Website.
The
Commissioner cannot have been advised on these decisions of
the
courts on these matters in so many cases brought against
the
Defendant.
- I do not find it possible to reconcile
the
views on
the law
expressed in
the
Commissioner's letter with authoritative statements of
the law
.
The
DPA does envisage that
the
Information Commissioner should consider what it is acceptable for one individual to say about another, because
the
First Data Protection Principle requires that data should be processed lawfully.
The
authoritative statements of
the law
are to be found not only in
the
cases cited in this judgment (including para 16 above), but also by
the
Court of Appeal in Campbell
v
MGN Ltd [2002] EWCA Civ 1373 [2003] QB 633 paras [72] to [138], and in other cases. As Patten J made clear in Murray, where
the
DPA applies, if processing is unlawful by reason of it breaching
the
general
law
of confidentiality (and thus any other general
law
) there will be a contravention of
the
First Data Protection Principle within
the
meaning of s.40(1), and a breach of s.4(4) of
the
DPA. See also Douglas
v
Hello! Ltd [2003] EWHC 786 (Ch) [2003] 3 All ER 996 paras 230-239 and Clift
v
Slough Borough Council [2009] EWHC 1550 (QB) [2009] 4 All ER 756.
The
fact that a claimant may have claims under common
law
torts, or under HRA s.6, does not preclude there being a claim under, or other means of enforcement of,
the
DPA.
- I appreciate
the
burden that
the law
may have placed in
the
Commissioner. And where there is any room for argument as to whether processing is unlawful under
the
general
law
, it may be more appropriate that a complainant should be required to pursue his remedy in
the
courts (as happened in Clift, albeit by her own choice). There be many grounds on which
the
Commissioner may properly decline to exercise his powers under Part
V
of
the
Act. But where there is no room for argument that processing is unlawful (as is
the
case with
the
Defendant, given
the
numerous judgments against
the
Defendant referred to in this judgment), it seems to me to be more difficult to say that
the
matter is not one which could be dealt with under Part
V
.
THE
TRANSFER INJUNCTION
- On 2 November 2011
the
Defendant posted
the
following message on
the
Website which stated that he was going to "give away"
the
Website to new experienced owners who would operate from overseas.
"'Freedom of Speech' - Preserved!
I would like to thank
the
dozens of authors who have taken
the
trouble to write and send in a Witness Statement confirming that what is posted on this website is true. I would also like to thank
the
decent lawyers who have contacted me offering their pro-bono help and expressing their concerns (click here) about
the Law Society
's High Court action to have this website shut down.
However, past experience has taught me that regardless of how much evidence I present in
the
High Court to support my defence or claim,
the
judicial system will always side with
the law
firm, solicitor, or in this case
The Law Society
.
In order to secure
the
future of this website and your right to freedom of speech, I have decided to give
the
website away.
The
new experienced owners, who operate overseas, will be taking this site to
the
next level in terms of world wide promotion and ease of access by
the
public.
All current reviews will be unaffected. New reviews will be posted automatically on a new style website (similar to TripAdvisor). Authors will be able to edit and update their listings at any time. Others can make further reviews and solicitors can post a response. Full rating system and
the
ability to upload evidence, to name just a few advantages. All totally free of charge.
I would like to take this opportunity to thank everyone again for their previous support. Godspeed.
Rick
Kordowski
."
- As a result
the
Claimants issued an application for an urgent without notice injunction to prevent
the
Defendant from disposing, transferring or selling in any way whatsoever any or all of
the
data from
the
entire Website to any third party or third parties with
the
result that he no longer retained control of that data and/or
the
Website. It was supported by
the
Third Witness Statement of Mr Wilson made on 2 November 2011.
The
application was granted by Langstaff J on 2 November 2011.
- Mr Wilson wrote to
the
Official Receiver to inform them of
the
threat made by
the
Defendant to 'give away'
the
Website and
the
injunction granted on 2 November 2011.
The
caseworker told Mr Wilson that he telephoned
the
Defendant after receiving
the
letter on 9 November 2011.
The
caseworker says he told
the
Defendant he is not permitted to take steps to dispose of
the
website as this would be a transfer at undervalue.
The
Defendant responded that he had not transferred
the
property. These matters are dealt with
the
Mr Wilson's fourth witness statement dated 14 November 2011.
The
Claimants seek a perpetual injunction in
the
terms of
the
Transfer Injunction. Mr Tomlinson submits that if
the
Court grants an order for
the
removal of
the
Website from
the
internet, then
the
Defendant cannot transfer
the
operation of
the
Website to a third party outside
the
jurisdiction. He could, however, remove
the
Website from
the
internet and then transfer
the
domain name and
the
data on
the
Website to a third party outside
the
jurisdiction with a view to their republishing
the
Website with its current content.
- In
the
absence of a continuation of
the
Transfer Injunction there is a clear and substantial risk that
the
Defendant will indeed transfer
the
operation of
the
Website to a third party operating out of
the
Court's jurisdiction. This is what he threatened to do on 2 November 2011. He is plainly a determined individual with a long standing animus against solicitors and appears to wish to continue to attack and abuse them by all available means.
The
transfer of
the
domain name and data would be an unlawful processing of
the
personal data of
the
individuals named on
the
Website and would continue their harassment from somewhere where it may be very difficult to obtain an effective remedy. In these circumstances,
the
Claimants ask
the
Court to continue
the
Transfer Injunction.
BACKGROUND
- At
the
start of his witness statement (at paras 1 to 9)
the
Defendant describes events between 2000, when he had instructed a firm which I shall refer to as
the
Defendant's Solicitors and 7 January 2004 when
the Law Society
's Adjudication Panel upheld a decision made on 16 September 2003 in which complaints by
the
Defendant against that firm had been upheld.
The
Defendant's solicitors were ordered to pay to
the
Defendant £500 in compensation.
The
decision was that that firm
"(a) failed to provide any client care and costs material at
the
outset of
the
retainer pursuant to their obligations under Solicitors Practice Rule 15 and
the
Solicitors' Costs Information and Client Care Code 1999 and further they failed to address and to conciliate complaints pursuant to their obligations under Solicitors Practice Rule 15; (b) they delayed in carrying out
the
[Defendant's] instructions; (c) they failed to respond to communications from [him]".
- It appears from
the
First Instance Decision that
the
Defendant had approached that firm having been told that his residential property was being used for purposes that were not appropriate within planning regulations. He subsequently suffered grave difficulties when his state benefits ceased, and again approached that firm.
The
Defendant complained that he had lost 'a window of opportunity' in relation to his Benefit Agency dispute. In a Formal Report on his complaint dated 22 July 2003 by a person described as 'Consultant Caseworker, Client Relations Office' it is recorded that
the
Defendant claimed to have suffered financial losses of £729,558.88 (how that figure is made up does not appear from
the
papers before
the
court). He states that he was not in a financial position to pursue that claim, and did not know of Conditional Fee Agreements, if they existed at that time.
- He goes on to state that he felt it his duty to share his experience with his solicitors on
the
internet, and created a website to warn others what might be in store for them. It was initially called by
the
name of his Solicitors. He was soon contacted by members of
the
public who had experienced similar problems with that firm and many other members of
the
public who had different problems with other firms. He states:
"I decided to re-name and re-engineer my website so that others could review or complain about their solicitor free of charge. Giving them at least some hope of relief".
- On 29 September 2005 www.SolicitorsfromHell.co.uk was registered.
The
first review posted was by himself regarding his Solicitors. All other submissions have been from members of
the
public. He explains how it is set up (see para 14 above). He states that some postings were removed by him, for example where he received evidence that they were harassment by disgruntled former employees or by individuals who had been in a personal relationship that had gone wrong.
- He states that in November 2009 he decided to introduce an 'Administration Monitoring' service. But he dropped it in December 2010 because solicitors were accusing him of extortion in charging for deleting their names.
- In September 2010 he was faced with a series of claims for libel. He states that he inferred that solicitors were abusing
the
site to post complaints about each other. So he started to require payment of a £1 payment through PayPal to enable him to trace who was making postings.
The
Defendant states that on 31 March 2011 he was contacted by
the
police from New Scotland Yard, and that he was interviewed on 10 April 2011.
The
subject of
the
interview was a complaint by
the Law Society
alleging blackmail on
the
basis of documents dated June 2010 relating to his 'Administration and Monitoring' service. He states that he has not been interviewed again, nor charged. Since then he states that he has "been reliant on verification by
the
author of
the
posting only". I take that to be a reference to other statements that he has made to
the
effect that he has stopped asking solicitors to pay him for deleting their names.
The
Defendant exhibits a number of witness statements. Some of them are in a standard form. He also exhibits what he states to be an online petition signed by over 5000 people. It is a document which headed with just these words: "
The Law Society
totally 'rejected' suggestions to work together to expose wrongdoing, where it exists, for
the
sake of
the
DECENT solicitors in
the
profession. If you are a 'decent' lawyer please sign".
The
Website has, from time to time, been used as a tool to demand money from those it names. See Phillips
v Kordowski
referred to above, and my own judgment of 1 April 2011 in Awdry Bailey Douglas
v Kordowski
[2011] EWHC 785 (QB) at para 23, where I also record that
the
Defendant stated that no solicitor ever pays it. However, there is a document headed Defence and signed by
the
Defendant on 20 September 2010. It relates to Harold Stock
v Kordowski
in which Sir Charles Gray struck out
the
Defence ([2010] EWHC 3898 (QB)).
The
Defendant referred to
the
allegation against himself of extortion and wrote: "Many solicitors have willingly paid their fee in a free market". In response to an e-mail of complaint sent on behalf of Harold Stock
the
Defendant wrote:
"You are correct, its an outrageous complaint. However, a valid one and it will stay published as a warning to others. For removal instruction, please se
the
bold text at
the
top of this page [and there is a hyperlink]"
- Mr Wilson in his first witness statement made on 11 October (paras 33-46) gives these and other similar instances of
the
Defendant demanding money, all taken from transcripts of proceedings and other documents. On occasions
the
demands are oblique, for example in an e-mail of 19 October 2010 to Mr Wilson
the
Defendant wrote:
"You will notice that
the
option for firms to pay to be deleted is no longer available. As a solicitor I am sure you are open to some lateral thinking. Perhaps next time we can come to some agreement?"
- In June 2010
the
Defendant launched a website called 'SolicitorsfromHeaven'. In his first witness statement Mr Wilson explains at paras 47-52 that this is similar to
the
Website, but gives members of
the
public
the
opportunity to submit postings commending
the
work of solicitors.
The
Defendant used this website in an attempt to obtain payment of a fee from a solicitor to be listed on that site. At
the
same time that would lead to removal of that solicitors name from
the
Website.
- In an email dated 8 May 2011 (which is exhibited to
the
Defendant's own witness statement)
the
Defendant demonstrates that he is still seeking payments for removal of postings. When asked by a new firm of solicitors "how much it would cost to prevent our name from going on
the
solicitors from hell website",
the
Defendant responds:
"Dear Sirs,
Thank you for your enquiry.
My 'Administration and Monitoring' scheme, which ensured a firm us never listed (and many other benefits), is no longer available.
However, please put forward a figure for my consideration. Perhaps we can work something out.
Regards,
Rick
Kordowski
"
- In an exhibit to his witness statement
the
Defendant has set out a list of 15 libel actions commenced against him in relation to
the
Website between 3 September 2010 and 13 May 2011.
The
Defendant has not successfully defended any of
the
claims that have proceeded to hearings. Judgment has been entered against
the
Defendant for substantial damages and costs on a number of occasions.
- As already mentioned,
the
Defendant was made bankrupt by a judgment creditor on 7 September 2011.
The
List of Creditors is made up of five of
the
firms of solicitors who had obtained judgment against him in libel actions. As a result
the
intellectual property rights in
the
Website and its contents are vested in his Trustee in Bankruptcy. However,
the
Claimants contend that
the
Defendant continues to control and operate
the
Website and to post new content on it. He remains
the
"publisher" of its content and
the
data controller of
the
personal data which is being processed.
JUDGMENT IN DEFAULT OF DEFENCE
- CPR Part 15.4 (1) provides that
"
The
general rule is that
the
period for filing a defence is –
(a) 14 days after service of
the
particulars of claim; or
(b) if
the
defendant files an acknowledgment of service under Part 10, 28 days after service of
the
particulars of claim."
- CPR Part 12.3 provides that
"(1)
The
claimant may obtain judgment in default of an acknowledgment of service only if –
(a)
the
defendant has not filed an acknowledgment of service or a defence to
the
claim (or any part of
the
claim); and
(b)
the
relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where a defence has not been filed, and, in either case,
the
relevant time limit for doing so has expired."
- I have set out above
the
relevant dates which mean that
the
Defendant is out of time for
the
service of his Defence. Mr Tomlinson submits that
the
applicable principles in such a case are as follows, and that
the
Claimants are entitled to judgment in default accordingly.
The
general rule is that where a defendant has failed to serve an acknowledgement of service or a defence within
the
prescribed time limits set out under
the
Civil Procedure Rules and
the
claimant has sought judgment in default, then
the
defendant will require
the
consent of
the
other parties or
the
permission of
the
Court to serve
the
defence out of time (see Coll
v
Tattum,
The
Times, 3 December 2001, Neuberger J at para [12]).
- Mr Tomlinson submits that
the
Defence served in this matter discloses no proper grounds for defending
the
action and, as a result, an application for permission to serve it out of time should be rejected.
The
factors taken into account when
the
court exercises its discretion should include those to be applied on an application to set aside or vary a judgment entered in default. In such a case CPR Part 13.3(1) provides that
the
court may set aside or vary a judgment if
"(a)
the
defendant has a real prospect of successfully defending
the
claim; or (b) it appears to
the
court that there is some other good reason why (i) judgment should be set aside or varied; or (ii)
the
defendant should be allowed to defend
the
claim".
- Regard should also be made to
the
overriding objective (Part 1) and
the
fact that allowing permission would lead to unnecessary court time and resources being wasted if
the
Claimants must then seek to strike it out under Part 3.2, or seek summary judgment under Part 24.
- I accept that this is
the
appropriate test.
- For
the
purposes of
the
claims in libel it means that, in so far as
the
Defendant does not admit that
the
words complained of bear
the
meanings attributed to them by
the
Claimants, or any defamatory meanings, I must decide whether he has a real prospect of defending
the
claims on
the
issue of meaning. For that purpose I must direct myself in accordance with guidelines established for determining
the
meaning which words complained of as defamatory are capable of bearing. These principles were summarised by Sir Anthony Clarke MR in Jeynes
v
News Magazines Limited [2008] EWCA Civ 130 at paragraph 14:
"
The
legal principles relevant to meaning … may be summarised in this way: (1)
The
governing principle is reasonableness. (2)
The
hypothetical reasonable reader is not naïve but he is not unduly suspicious. He can read between
the
lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non-defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4)
The
intention of
the
publisher is irrelevant. (5)
The
article must be read as a whole, and any "bane and antidote" taken together. (6)
The
hypothetical reader is taken to be representative of those who would read
the
publication in question. (7) In delimiting
the
range of permissible defamatory meanings,
the
court should rule out any meaning which, "can only emerge as
the
produce of some strained, or forced, or utterly unreasonable interpretation…" …. (8) It follows that "it is not enough to say that by some person or another
the
words might be understood in a defamatory sense."
- In his Skeleton argument
the
Defendant raises
the
unqualified Art 10(1) point I have already referred to. He disputes that
the
words complained of refer to all solicitors listed on
the
Website. He submits that
the
words complained of as referring to all
the
named solicitors are no more than a marketing tool to inform members of
the
public of their right to complain.
- Applying these principles (and subject to
the
issue of whether a representative action should be permitted in this case) I am satisfied that
the
words complained (in so far as not admitted by
the
Defendant) are capable only of a defamatory meaning, and that
the
Defendant has no real prospect of successfully defending
the
libel claims on
the
issues of meaning and reference, and that there is no good reason why judgment in default of defence should not be entered, or why
the
defendant should be allowed to defend
the
claim. I am equally satisfied that
the
words complained of as referring to all named solicitors do refer to all named solicitors.
The
argument that they do not because they are marketing tool is hopeless.
- As to
the
Second and Third Claimants, I am also satisfied on
the
basis of
the
evidence of Mr Morris and
the
Third Claimant that
the
allegations have been proved to be false. There is no direct evidence of falsity in relation to any of
the
Represented Parties So far as they are concerned, there is, of course,
the
presumption of falsity that applies in defamation.
The
relevance of that to
the
relief to be granted will be considered below.
- For
the
claim in harassment, I am similarly satisfied that
the
Defendant has no real prospect of successfully defending
the
claim, and that there is no good reason why
the
Defendant should be allowed to defend
the
claim.
The
evidence of Mr Morris and
the
Third Claimant is not contradicted, and could not be contradicted. It is plain that
the
requirements of
the
PHA are satisfied. Any normal person would be distressed at
the
course of conduct
the
Defendant has pursued in publishing what he has published about those solicitors. So I am satisfied that
the
Defendant has committed, and is threatening to continue to commit,
the
statutory tort of harassment, and that
the
victims are not only
the
Second and Third Claimants, but all solicitors and other lawyers named or to be named on
the
Website. There is no need for evidence of falsity for me to reach this conclusion. Even if there were evidence that
the
allegations were true,
the
conduct of
the
Defendant could still not even arguably be brought within any of
the
defences recognised by
the
PHA. No individual is entitled to impose on any other person an unlimited punishment by public humiliation such as
the
Defendant has done, and claims
the
right to do. His conduct is a gross interference with
the
rights of
the
individuals he names.
The
position is
the
same in relation to
the
DPA claim.
The
claim under
the
DPA is a claim that is based primarily on
the
facts that
the
Defendant's processing of
the
personal data of those referred to in
the
Website is unfair and unlawful, and contrary to
the
rights of
the
individuals concerned, and so contrary to
the
First and Sixth Data Protection Principles (para 77 above). Accuracy is a requirement of
the
Fourth Data Protection Principle. Inaccuracy or falsity of data may be sufficient to establish a breach of
the
DPA, but it is not necessary. Any unlawfulness will suffice for there to be a breach of
the
First Data Protection Principle, including harassment and libel. That principle is not confined to acts unlawful under that particular statute (para 78 above).
RELIEF FOR
THE
SECOND AND THIRD CLAIMANTS
- It would follow from
the
foregoing that
the
Second and Third Claimants are entitled to relief in
the
form of an award of damages. I have not been asked to assess damages, no doubt because there would be no point, given
the
bankruptcy of
the
Defendant.
The
relief
the
Claimants want is a perpetual injunction.
The
rules relating to interim injunctions no longer apply, since I have found that they are entitled to final judgment. This is not simply a default judgment. I have found that
the
Second and Third Defendants have each proved their case. So
the
position is as it would be at
the
end of a trial. It is discussed in Gatley on Libel and Slander 11th ed para 9.27 and following.
The
form of order which Mr Tomlinson has asked
the
court to make is as follows:
"1.
The
Defendant shall cease, forthwith, to publish of
the
website www.solicitors from hell.co.uk ("
the
Website") by removing
the
Website from
the
Internet in its entirety. For
the
avoidance of doubt, this includes all content relating to
the
Website, including but not limited to, electronic material, source code, meta data and hyperlinks;
2.
The
Defendant be restrained, whether by himself his servants or agents or otherwise from publishing or setting up any website with
the
same or similar name to
the
Website and/or inviting members of
the
public to post complaints about solicitors,
law
firms or other individuals and/or organisations involved in or connected with
the
legal profession (without proper verification).
3.
The
Defendant be restrained, whether by himself, his servants, agents or otherwise, from publishing in
the
future
the
names or identifying details of any solicitor, solicitors' firm or individual or organisation involved in or connected with
the law
by naming and/or listing and/or identifying them on
the
Website or on any website similar to
the
Website which lists or purports to list "solicitors from hell".
4.
The
Defendant be restrained, whether by himself, his servants agents or otherwise howsoever, from harassing (within
the
meaning of
the
Protection from Harassment Act 1997)
the
Third Claimant and all solicitors or other individuals involved in or connected with
the
legal profession, by naming and/or listing and/or identifying any of them on any website similar to
the
Website, which lists or purports to list or to identify "solicitors from hell.
5.
The
Defendant ceases to process any personal data concerning
the
Third Claimant and/or all solicitors, or other individuals involved in or connected with
the
legal profession via
the
Website or any similar website which lists or purports to list or to identify "solicitors from hell".
- These forms of order are not directed to protecting
the
Second and Third Claimants alone, but to all those who are represented. I shall consider
the
relief appropriate for
the
Second and Third Claimants separately from that asked for in respect of
the
Represented Parties.
- There is little guidance on when a perpetual injunction in libel ought to be granted. In Monson
v
Tussauds [[1894] 1 QB 690 Lord Halsbury LC said at p690: "In all cases where
the
Court shall think it just and convenient
the
remedy exists."
The
same principles apply in libel as in
the
case of any other form of perpetual injunction.
The
remedy is equitable. Further,
the
grant of a final injunction to restrain publication of speech is subject to
the
HRA s.12. That requires
the
court to have particular regard to
the
importance of
the
Convention right of freedom of expression.
- I would not grant
the
perpetual injunction sought by
the
Claimants unless I am satisfied that
the
words complained of are false. In other words, I would not think it just, or in accordance with HRA s.12, to grant it simply on
the
basis of
the
presumption of falsity.
The
form in which perpetual injunctions are usually granted (when appropriate) is an order restraining any further publication of
the
words complained of or any similar words defamatory of
the
claimant. So far as
the
claims of
the
Second and Third Claimants in libel are concerned, that would be an appropriate form of order to make in this case, and, subject to further submissions on
the
form of any order, I would make such an order.
- In respect of
the
claims in harassment by
the
Second and Third Claimants, I would (subject to further argument as to
the
form of any order) grant a perpetual injunction as provided for by PHA s.1(2)(b), that is, restraining
the
Defendant from any further publication of
the
words complained of or any similar words which amounts to harassment of those Claimants or any member of
the
Second Claimant firm.
- In respect of
the
claims under
the
DPA by
the
Second and Third Claimants, I would (similarly subject to further argument) grant a perpetual injunction as provided for by s.10, that is, to cease processing any personal data in respect of which
the
Third Claimant, or any member of
the
Second Claimant firm is
the
data subject. I would also make an order under DPA s.14 that
the
Defendant block, erase and destroy
the
data which is
the
subject of this action.
REPRESENTATIVE PROCEEDINGS
- Although a number of cases have been brought successfully in libel by individual solicitors and firms, Mr Tomlinson submits that this is a waste of court time and resources as well as an injustice to
the
claimants who are unable to recover their costs. Attempts to invoke
the
criminal
law
and
the
assistance of
the
Information Commissioner have failed. This is a case where some form of collective action is called for, and
the
procedure of CPR Part 19 is
the
appropriate avenue to pursue.
- CPR Part 19.6 provides:
"(1) Where more than one person has
the
same interest in a claim –
(a)
the
claim may be begun; or
(b)
the
court may order that
the
claim be continued,
by or against one or more of
the
persons who have
the
same interest as representatives of any other persons who have that interest
(2)
The
court may direct that a person may not act as a representative".
- In Independiente Ltd
v
Music Trading On Line (HK) Ltd ([2003] EWHC 470 Morritt
V
-C considered CPR Part 19.6 in a case where
the
claimants were suing for breach of copyright representing "all members of
the
British Phonographic Industry Ltd and Phonographic Performance Ltd who were owners and/or exclusive licensees of UK sound recordings" (see para [3]-[4]). It was accepted that that a representative claimant may sue in a representative capacity without
the
authority of those he claims to represent provided only that
the
claim satisfies
the
conditions prescribed by CPR Rule 19.6.(1) (para [16]).
- At para [23], Morritt
V
-C said:
"
The
provisions of
the
civil procedure rules, particularly CPR Rule 1.2, emphasise
the
need to interpret
the
phrase "
the
same interest" and to apply
the
provisions of CPR Rule 19.6 both flexibly and in conformity with
the
overriding objective. Accordingly there are three questions: do
the
individual claimants on
the
one hand and
the
Relevant Members as defined on
the
other have (1) a common interest, (2) a common grievance and (3) is
the
relief sought by
the
claimants in its nature beneficial to
the
Relevant Members? Counsel for
the
defendants submits that
the
answer to each of those questions is in
the
negative."
- At para 29 Morritt
V
-C concluded:
"
The
common interest arises from
the
fact that
the
claim as pleaded is made in respect of
the
UK copyright in a sound recording to which any Relevant Member is entitled as owner or exclusive licensee.
The
common grievance arises from
the
facts pleaded regarding
the
operation of
the
CD-WOW [web]site. There is at least a threat to supply a CD embodying a sound recording to which a Relevant Member is so entitled in response to an order placed on
the
website.
The
question whether that method of supply constitutes an infringement of
the
UK copyright in
the
sound recording is common to all Relevant Members because
the
same method is used for all supplies. Unless and to
the
extent that
the
defendants seek to put in issue
the
subsistence or ownership of
the
UK copyright contrary to
the
presumptions for which s.105 CDPA provides or
the
consent of a Relevant Member to
the
acts complained of
the
issues of fact and
law
will be identical however many sound recordings or Relevant Members are involved. It would be absurd and contrary to
the
propositions expressed by Megarry J in John
v
Rees [[1970] 1 Ch.345] and CPR Rule 1 if there had to be a separate claim in respect of each Relevant Member at least until it is seen if
the
issues in relation to that Relevant Member are substantially different from those relating to
the
generality of
the
Relevant Members."
- Mr Tomlinson also cited Emerald Supplies
v
British Airways [2011] 2 WLR 203, which is a case where Morritt
V
-C and then
the
Court of Appeal held that there should not be a representative action.
The
claimants had brought proceedings against
the
defendants contending that
the
defendant had been party to agreements and concerted practices with other air freight providers to fix prices at which air freight services were supplied with
the
object or effect of preventing or distorting competition contrary to article 81(1) EC of
the
EC Treaty and s.2 of
the
Competition Act 1998.
The
defendant contested that
the
character of
the
proceedings would be equally beneficial for all persons in
the
represented class. As Mummery LJ summarised it at para [15]:
"That would not be
the
case if, for example, there is a potential conflict between those in
the
class who "pass on" and those who do not "pass on" to their customers
the
inflated element of
the
illegally fixed prices. BA might be able to raise a "passing on" defence (i.e. a defence that no damage has been suffered) against some members of
the
represented class, but not against other class members."
- Morritt
V
-C had concluded at para 36 of his judgment [2010] Ch 48 (cited by Mummery LJ at para 28) that:
"36. It is not disputed that damage is a necessary element in
the
cause of action of individual members of
the
class. Whether or not an individual member of
the
class can establish that necessary ingredient will depend on where in
the
chain of distribution he came and who if anyone in that chain had absorbed or passed on
the
alleged inflated price. Given
the
nature of
the
cause of action and
the
market in which
the
relevant transactions took place, there is an inevitable conflict between
the
claims of different members of
the
class."
The
Court of Appeal upheld Morritt
V
-C for two reasons as follows:
"62. In my judgment, Emerald's case for a representative action, whether as originally pleaded or as proposed to be amended, is fatally flawed.
The
fundamental requirement for a representative action is that those represented in
the
action have "
the
same interest" in it. At all stages of
the
proceedings, and not just at
the
date of judgment at
the
end, it must be possible to say of any particular person whether or not they qualify for membership of
the
represented class of persons by virtue of having "
the
same interest" as Emerald.
63. This does not mean that
the
membership of
the
group must remain constant and closed throughout. It may indeed fluctuate. It does not have to be possible to compile a complete list when
the
litigation begins as to who is in
the
class or group represented.
The
problem in this case is not with changing membership. It is a prior question how to determine whether or not a person is a member of
the
represented class at all. Judgment in
the
action for a declaration would have to be obtained before it could be said of any person that they would qualify as someone entitled to damages against BA.
The
proceedings could not accurately be described or regarded as a representative action until
the
question of liability had been tried and a judgment on liability given. It defies logic and common sense to treat as representative an action, if
the
issue of liability to
the
claimants sought to be represented would have to be decided before it could be known whether or not a person was a member of
the
represented class bound by
the
judgment.
64. A second difficulty is that
the
members of
the
represented class do not have
the
same interest in recovering damages for breach of competition
law
if a defence is available in answer to
the
claims of some of them, but not to
the
claims of others: for example, if BA could successfully run a particular defence against those who had passed on
the
inflated price, but not against others. If there is liability to some customers and not to others they have different interests, not
the
same interest, in
the
action. "
- There are a number of harassment cases in which a claimant has been permitted to represent other persons who have been
the
subject of similar harassment and threats of harassment, in particular from animal rights activists. In SmithKline Beecham
v
Avery ([2009] EWHC 1488 (QB)) a personal claimant represented "
the
Protected Persons". As set out in para [45], they were defined as
"(i)
the
directors employees agents subcontractors and suppliers of all members of
the
GSK Group; (ii)
the
families, servants or agents of
the
persons mentioned in subparagraph (i) hereof; and (iii) all persons seeking lawfully to visit or work at
the
business premises of
the
First to Eleventh Claimants or any home or residence belonging to or occupied by any of
the
persons mentioned in subparagraph (i) and (ii) above".
- Jack J held at para [47] that
the
Protected Persons had a common interest in preventing acts of harassment by animal rights groups. He referred to Edo MBM where Gross J had said at para [36]:
"to my mind, Mr. Jones [
the
Second Claimant] and all those within C2 [
the
First Claimant's employees, whom he sought to represent] have a demonstrably common interest in not being harassed by
the
Defendants (if
the
alleged apprehension of such harassment is established)."
- Mr Tomlinson submits that in this action each of
the
Claimants is representing others who have a common interest and grievance in
the
proceedings and
the
relief sought is beneficial to all, and all
the
relevant conditions are met. A person may be represented without obtaining his consent, even where he can be found and his opinion sought consent is not a requirement of
the
rules (see PNPF Trust Ltd
v
Taylor [2009] EWHC 1693 (Ch), [47]). There is no limit to
the
size of
the
class that can be represented (see Emerald Supplies
v
British Airways [2010] Ch 48 [30]).
- This is not a case like
the
Emerald Supplies case where
the
class of persons who might be represented could not be identified until liability to each of them has been established:
the
determining factor is being listed on
the
Website or being
the
in class of individuals/organisations who are at serious risk of being listed on
the
Website.
The
case in respect of
the Law Society
is pleaded as follows in
the
Particulars of Claim:
1.2
The Law Society
sues in a representative capacity under CPR Part 19.6 on behalf of all solicitors in England and Wales who are members of
the Law Society
,
law
firms and other individuals and organisations involved with or connected to
the
legal profession that are at serious risk of being named on [
the
Website], as [
the Law Society
] has a common interest and/or grievance in relation to this litigation with those it represents, namely preventing
the
publication of their names on
the
Website (as to which see paragraph 17(b) below) and
the
relief sought in this litigation is beneficial to all...
14.
The
Website invites members of
the
public to post their 'complaints' about solicitors,
law
firms and others involved in or connected to
the
legal profession and there is a serious risk that any of
the Law Society
Represented Claimants will be
the
subject of postings on
the
Website. As a result, and for
the
reasons set out in paragraphs 15 and 16 below, there is an ongoing threat of defamatory publication by
the
Defendant against
the Law Society
Represented Claimants.
15. Any such publication would result in
the
following defamatory words being published or caused to be published by
the
Defendant of a
Law Society
Represented Claimant. A copy of a print out of
the
relevant pages of
the
Website is attached to these Particulars of Claim at Annex 5.
(a)
The
publication of their name on a website called 'Solicitors from Hell' … [there is then a pleading in terms identical to
the
paragraphs cited in para 32(b) and (d) above].
16. In their natural and ordinary meaning
the
said words would mean and would be understood to mean that
the Law Society
Represented Claimant acts oppressively, does not provide competent services, has been
the
subject matter of justified complaints and should not be instructed or dealt with.
17. For these reasons:…
(b) [
the Law Society
], on behalf of
the Law Society
Represented Claimants, seeks an injunction to restrain
the
continued publication of
the
names of any solicitors' firm, solicitor, individual or organisation on
the
Website to prevent threatened defamatory publications.
In support of
the
contention that they are entitled to such injunctions,
the
Claimants will also rely on
the
facts and matters pleaded at paragraphs 39-43 below….
43. For
the
reasons set out above, unless restrained by
the
Court
the
Defendant will:
(a) further publish or cause to be published
the
same or similar words defamatory of
the
solicitors, firms of solicitors, individuals and organisations named on
the
Website, including in particular
the
Complainants and Second and Third Claimants; and will in future publish defamatory statements about
the Law Society
Represented Claimants…"
The Law Society
has itself been
the
subject of defamatory postings on
the
Website, as described by Mr Wilson in his first witness statement at para 7, but it makes no claim in respect of these, nor does it claim on its own behalf relief on
the
basis of a threatened future publication (quia timet). Nevertheless Mr Tomlinson submits that it has a common interest and/or grievance in relation to this litigation with those it represents, namely preventing
the
publication of their names on
the
Website and
the
relief sought in this litigation is beneficial to all.
The
Second Claimant sues not only on its own behalf, but also in a representative capacity under CPR Part 19.6 on behalf of all
law
firms and organisations presently listed on
the
Website.
The
Second Claimant has a common interest and/or grievance in relation to this litigation with those it represents, namely
the
removal of their names and other identifying details from
the
Website and
the
relief sought in this litigation is beneficial to all.
The
Third Claimant sues on his own behalf and in a representative capacity under CPR Part 19.6 on behalf of all listed solicitors and individuals on
the
Website.
The
Third Claimant has a common interest and/or grievance in relation to this litigation with those he represents, namely:
the
removal of their names and other identifying details from
the
Website; preventing
the
harassment of solicitors and other individuals as a result of being listed on
the
Website; and preventing breaches of
the
DPA as a result of
the
existing postings on
the
Website; and
the
relief sought in this litigation is beneficial to all.
- This action is also brought by
the
Third Claimant on his own behalf and in a representative capacity under CPR Part 19.6 on behalf of all solicitors in England and Wales and other individuals involved with or connected to
the
legal profession that are at serious risk of being named on
the
Website.
The
Third Claimant has a common interest and/or grievance in relation to this litigation with those he represents, namely: preventing
the
harassment of individual solicitors; and preventing
the
breaches of
the
Data Protection Act 1998; and
the
relief sought in this litigation is beneficial to all.
The
Defendant submits that
i) not all solicitors have an interest in a claim against him. For example solicitors who have not been named on
the
Website have no interest in a claim;
ii)
the
majority of solicitors identified on
the
Website have not opted in to
the
claim and
the
are assumed to have rejected pursuing a claim;
iii) it is clear that
the
class of persons who might be represented could not be identified until liability to each of them has been established;
iv) any claim would not be equally beneficial for all
the
persons in
the
represented class.
- In my judgment
the
proceedings by
the
Second and Third Claimants in respect of
the
claims for harassment and under
the
DPA should be continued as they have been begun. Solicitors who have not been named have an interest in
the
injunction in so far it is quia timet. Consent to be represented is not required, as
the
authorities show.
The
class is readily identifiable once persons or firms are named on
the
Website. An injunction would be equally beneficial to all.
The
common interest arises from
the
fact that
the
claim as pleaded is made in respect of a course of conduct, which includes data processing, which is
the
same or similar in relation to all
the
Represented Parties.
The
common grievance arises from
the
facts pleaded regarding
the
operation of
the
Website. There is at least a threat to cause distress to all Represented Parties in circumstances where no defence has ever been raised by
the
Defendant, nor could be raised by him.
The
question whether that course of conduct constitutes a breach of
the
PHA or
the
DPA is common to all Represented Parties because
the
same course of conduct is used in respect of all of them.
- As already discussed, while
the
falsity or inaccuracy of
the
words (
the
course of conduct complained of) is not irrelevant to
the
claims under
the
PHA and
the
DPA, truth is not of itself a defence.
- So far as
the
First Claimant,
the Law Society
, is concerned, since it does not sue for any of
the
causes of action for its own benefit (whether existing or threatened) it does not have
the
common interest and grievance with
the Law Society
Represented Claimants that is required by CPR Part 19.6. But in my judgment
the
Second and Third Claimants have
the
required common interest with
the Law Society
Represented Claimants. Accordingly, pursuant to CPR Part 19.6(b), I order that
the Law Society
Represented Claimants be continued by
the
Second and Third Claimants in respect of
the
claims for harassment and under
the
DPA.
The
position in relation to libel seems to me to be different.
The
Second and Third Claimants have been careful to claim separately for those words which they claim refer to all solicitors named in
the
Website, as distinct from those which refer only to themselves. To
the
extent that they complain of words which refer to all solicitors named in
the
Website (that is both words already published and words which
the
Defendant threatens to publish in
the
future) I accept that there is a common interest. However, whether publication of those words is, or will be, unlawful does not depend on
the
conduct of
the
Defendant. It depends upon whether
the
words are true or false, or whether they can be defended under one of
the
other established defences in libel.
- Mr Tomlinson submits that, since damage is not a necessary constituent of
the
cause of action in libel (damage is presumed) inclusion of
the
name of any firm or person on
the
Website in
the
future would be prima facie unlawful. He submits that in
the
particular circumstances of
the
present case
the
court can proceed on
the
basis that if there were to be such a publication in
the
future,
the
Defendant would have no defence, and so
the
publication would be unlawful.
The
Defendant has not suggested that if he were to continue to operate
the
Website, he would do so under conditions in which he would claim to be able to raise a defence known to
the law
(other than
the
supposed unqualified Art 10(1) right that
the
courts have repeatedly rejected). So, submits Mr Tomlinson, in these circumstances it would be appropriate for
the
court to grant a quia timet injunction in libel as well as under
the
PHA and DPA.
- Given
the
history of
the
Defendant, I accept that it seems theoretical to talk of
the
Defendant raising any defences under
the law
of libel. That is not something he has ever attempted with success. But as in Emerald it seems to me that judgment in an action for libel would have to be obtained before it could be said of any person that they would qualify as someone entitled to an injunction against
the
Defendant, or to any remedy other than damages.
The
presumption of falsity may entitle a defendant to a judgment in default, for damages to be assessed, but to no more. I repeat
the
reasons set out in paras 138 and 139 above. And as Lord Denning MR said in Fraser
v
Evans [1969] 1 QB 349 at 361, explaining
the
rule in Bonnard
v
Perryman:
"There is no wrong done if [
the
defamatory allegation] is true, or if it is fair comment on a matter of public interest [or, he might have added, it is on an occasion of qualified privilege]".
- Accordingly, I would direct that in respect of
the
claims in libel
the
Claimants may not act in a representative capacity.
RELIEF FOR
THE
REPRESENTED PARTIES
- In
the
light of my decision on
the
representative claims in libel,
the
question of relief for
the
represented parties is to be considered only in relation to
the
claims under
the
PHA and
the
DPA.
The
form of order sought is set out at para 136 above.
The
wording of para 2 seemed to me to present a particular difficulty, to which I referred at
the
end of
the
hearing.
The
qualification 'without proper verification' is undoubtedly an encouragement to proper behaviour. But it does not reflect a defence that would be available to either cause of action. And it lacks
the
clarity that is essential to an injunction, which is an order
the
breach of which can be punished with imprisonment (see eg Thomas
v
Mold [1968] 2 QB 913, 922F).
- I note with interest that an injunction preventing
the
processing of personal data in relation to a website was granted in representative proceedings in SHG
v
Baines [2006] EWHC 2359. Mr Tomlinson refers to paragraphs 7, 25 and 26 of
the
judgment of Eady J.
The
terms of
the
injunction were to restrain publication of defamatory words and harassment as well as processing of personal data. In relation to harassment and
the
processing of personal data (but not
the
defamation)
the
injunction was in respect of
the
"representative parties" as well as
the
personal claimant. In relation to
the
application under
the
DPA it is to be noted that Eady J observed that this was a novel order, and one which he made on
the
basis that it was a temporary order, where there would be an opportunity to apply to discharge. So while it provides only slender support for
the
application in this case, it is some support.
- For
the
same reasons, I would also grant a perpetual order in
the
terms of
the
Transfer Injunction.
- In deciding that it is just and convenient to grant perpetual injunctions in these representative proceedings I have in mind
the
private rights of
the
Claimants and those whom they represent: justice to them requires that an injunction be granted. But before granting an injunction
the
courts may have regard to
the
rights of third parties and
the
interests of
the
public at large, as
the Law Society
submits that I should (para 15 above).
THE
PUBLIC INTEREST
- In
the
present case
the
rights of
the
interests of
the
public at large are strongly supportive of
the
need for an injunction.
- In Reynolds
v
Times Newspapers Ltd [2001] 2 AC 127 at p218 Lord Nicholls said:
"Your Lordships Committee were reminded that it was eloquently said by Judge Learned Hand in United States
v
Associated Press (1943) 52 F Supp 362, 372 that
the
First Amendment
"presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all."
In like vein was
the
pronouncement of Holmes J, dissenting but with
the
concurrence of Brandeis J, in Abrams
v
United States (1919) 250 US 616, 630, "
the
best test of truth is
the
power of
the
thought to get itself accepted in
the
competition of
the
market".
Such observations are most naturally apposite, however, to freedom to express ideas and convey news. Neither of
the
cases in which they were made was a defamation case. It would be dangerous to stretch them out of context. As to defamatory allegations of fact, even in
the
United States
the
opinions of jurists differ on
the
extent to which
the
collectively cherished right of free speech is to be preferred to
the
individually cherished right to personal reputation; and it is certain that neither in
the
United Kingdom nor anywhere else in
the
Commonwealth could it be maintained that
the
people have knowingly staked their all on unfettered freedom to publish falsehoods of fact about political matters, provided only that
the
writer or speaker is not actuated by malice."
- Freedom of expression can only advance
the
objective of truth if
the
participants in a debate aim at truth. As Baronness O'Neill said (
The
Financial Times 20 November 2011):
"Both false and unreliable reporting, and reporting that misrepresents its aims and its evidence, can silence, confuse or marginalise important issues or voices, can promote manufactured or manipulated 'news', and can make it hard or impossible for audiences to judge what they read, hear and view. Failure to maintain standards for adequate communication, including adequate standards for truth claims, can have heavy costs".
- If a free market is to work, consumers must assume that suppliers are offering their goods or services in good faith, and not deliberately misleading
the
public. Participation in a market involves responsibilities. In
the
same way
the
right to freedom of expression guaranteed by Art 10(1) is subject to
the
responsibilities referred to in Art 10(2). Deliberately to introduce falsehoods into public debate is like contaminating food in
the
shops. And where
the
internet is concerned,
the
motive is often
the
same: extortion or revenge.
The
effect of misinformation on those searching for true information is that they are likely to be misled by finding information that is in fact false.
The
common
law
, underpinned by
the
HRA, guarantees many freedoms, including free markets in goods and services for
the
benefit of
the
public both as consumers and as suppliers. These freedoms can only be enjoyed if there is extensive interference with freedom of expression in
the
form of regulations governing what can be said by suppliers.
- There is a large body of
law
prohibiting
the
making by suppliers of false and misleading claims as to
the
supposedly good qualities of their goods and services.
The
responsibilities imposed on suppliers by these
laws
are interferences with freedom of expression which are justified under Art 10(2). Until
the
internet made it possible for individuals to communicate with
the
public at large at virtually no cost, there did not appear to be a need for similar regulations to prevent
the
making of false and misleading claims as to
the
supposedly bad qualities of
the
goods and services of suppliers. Such false claims were made unlawful by torts such as defamation and malicious falsehood, and
the
economic torts. But these are not enforced on behalf of
the
public by public authorities. Victims are left to pursue their own civil
law
remedies for their own benefit.
- However,
the
public as consumers need protection not only from false claims to
the
supposedly good quality of goods and services, but also from false claims to
the
supposedly bad quality of goods and services. In extreme cases a false claim that a product is bad may cost lives, as happened in
the
recent case of
the
pharmaceutical product MMR. Discouraging people in need of legal advice from instructing good lawyers is as much against
the
public interest as encouraging them to instruct bad lawyers. At worst it may lead to miscarriages of justice (if clients do not take or follow advice because they do not trust their solicitors to give advice in their best interests). At
the
least it will lead to restrictions on
the
consumers' freedom of choice, and to distortion of
the
free market in legal services.
- If restrictions are to be enforced on behalf of
the
public, Parliament normally does this by legislation which makes
the
conduct in question a criminal offence.
The
DPA goes some way towards this. It can protect from unfair discrimination those suppliers who trade as individuals, as solicitors happen to do, as well as employees or prospective employees. And it does create criminal offences and a mechanism for enforcement by
the
Information Commissioner. Where
the
DPA does not apply,
the
suppliers who have large resources may invoke
the
common
law
to protect themselves. But there is a need for someone to protect
the
public.
The
procedural remedy of representative proceedings, coupled with an injunction, may be
the
best that
the law
can offer at present to protect
the
public from
the
unjustifiable dissemination of false information about
the
suppliers of goods and services. It is also
the
means by which
the
court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against
the
same individual on
the
same or similar facts.
The
Defendant is a public nuisance. He is in effect a vexatious litigant who is a defendant.
The
courts have had to devise means to protect
the
administration of justice from such people, when they are claimants or applicants, by
the
means of what are now civil restraint orders under Practice Direction 3C of
the
CPR. That is
the
jurisdiction that Smith LJ and Sir Richard Buxton were applying by designating
the
Defendant's applications for permission to appeal as totally without merit. Henriques J was calling for something similar to protect
the
court from defendants who mischievously provoke claims which they know they cannot defend.
CONCLUSION
- These are
the
reasons why on 15 November 2011 I made
the
order to prohibit further publication of
the
SolicitorsfromHell website. For
the
same reasons I shall grant perpetual injunctions as indicated above. I shall hear further argument on
the
form of
the order.