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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Merlin Entertainments LPC & Ors v Cave  EWHC 3036 (QB) (25 September 2014)
Cite as:  EWHC 3036 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1) Merlin Entertainments LPC (on behalf of its officers, employees and agents)
& (2) Merlin Attractions Operations Limited (for and on behalf of its officers, employees and agents)
& (3) Chessington World Of Adventures Operations Limited (for an on behalf of its officers, employees and agents)
& (4) Merlin Entertainments Group Limited (for an on behalf of its officers, employees and agents)
& (5) Nicholas Varney (for himself and on behalf of all of the officers and employees of the First, Second, Third and Fourth Claimants pursuant to CPR Part 19.6)
|- and -
Mr Strauss QC acting Pro Bono for the Defendant
Hearing dates: 26 August and 28 August 2014
Crown Copyright ©
Mrs Justice Elisabeth Laing DBE :
(1) He accepts that the Claimants do not have to identify every individual whom they represent. But, he submits, the Claimants do have to show that one or more individuals in one of two classes has a cause of action. Those two classes are the individuals named by Dr Cave in his communications, and the recipients of his mass emails (in particular, the employees of the corporate Claimants). He submits, in relation to both classes, that the conduct of which complaint is made is not harassment.
(2) He submits that however much distress is caused by conduct which is potentially defamatory, that conduct should not be restrained by interim injunction, if Dr Cave would seek to justify it at trial. That would infringe the rule in Bonnard v Perryman  2 Ch 269. That rule is that, in general, the court will not restrain by interim injunction the publication of statements which are said to be defamatory, but which a defendant will seek to justify at trial.
(3) In any event the terms of the order sought are unacceptably wide and vague. The parties agreed that I should deal with this issue after judgment.
(1) What test should I apply in deciding whether or not to grant interim relief? Is it the test in American Cyanamid v Ethicon  AC 396, which usually applies when a claimant asks for an interim injunction, or is it the more stringent test which applies as a result of section 12(3) of the Human Rights Act 1998 ("the HRA")?
(2) Is Dr Cave prevented, by a decision of Sharp J (as she then was), from arguing that the statements he has made in the course of his campaign are justified? I shall refer to this as the estoppel issue.
1. The facts in outline
2. The estoppel issue
3. The PHA
"It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd  EMLR 78 , para 30 (Lord Phillips of Worth Matravers MR). One of the more egregious forms of harassment is the stalking of women. But the Act is capable of applying to any form of harassment. Among the examples to come before the courts in recent years have been repeated offensive publications in a newspaper (as in Thomas); victimisation in the workplace (Majrowski v Guy's and St Thomas's NHS Trust  1 AC 224 ); and campaigns against the employees of an arms manufacturer by political protesters: EDO Technology Ltd v Campaign to Smash EDO  EWHC 2490 (QB)."
4. The relationship between the PHA and the Human Rights Act 1998 ("the HRA")
5. The test for granting an interim injunction
4. The incidents on which the Claimants rely
The IPO document
The December 2013 correspondence
The January 2014 website
The letters before claim
The 27 June 2004 email
The 3/4 July 2014 email
The 20 July 2014 email
The email of 2 August 2014
5. Is there a course of conduct?
(a) the employees
(b) the named individuals