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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Power Places Tours Inc & Ors v Free Spirit & Anor [2015] EWHC 3886 (QB) (10 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/QB/2015/3886.html Cite as: [2015] EWHC 3886 (QB) |
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QUEEN'S BENCH DIVISION
The Strand London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the High Court)
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POWER PLACES TOURS Inc. THERESA WEISS TOBY WEISS |
Claimants |
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- and - |
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FREE SPIRIT ALEXANDRA DITTMANN |
Defendants |
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AND BETWEEN: |
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THERESA WEISS TOBY WEISS |
Claimants |
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- and - |
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FREE SPIRIT |
Defendant |
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(a trading name of Opus 2 International Limited)
Official Court Reporters and Audio Transcribers
5 Chancery Lane, London EC4A 1BL
Tel: 020 7831 5627 Fax: 020 7831 7737
info@beverleynunnery.com
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MR. DAVID HIRST (instructed by Harcus Sinclair) appeared on behalf of the Applicants.
THE DEFENDANTS were not present and were not represented.
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Crown Copyright ©
HIS HONOUR JUDGE MOLONEY QC:
(a) Dr. and Mrs. Weiss are Americans who live in Colorado. They run a travel agency called Power Places Tours, which appears to specialise in tours to what I might loosely describe as "sacred places". Though the company is based in the United States, it advertises worldwide over the internet and no doubt gets business from time to time from people from the United Kingdom and the European Union.
(b) The first defendant, Mr. Free Spirit, is a New Age teacher with an interest in sacred places and matters of that kind. It would appear that he is a citizen of the United Kingdom, resident in the European Union, sometimes within the United Kingdom, sometimes in other countries in Europe. In 2011 Mr. Free Spirit and his then wife booked a holiday with Power Places Tours, departing in December 2012 and costing some $7,000. Regrettably, Mr. Spirit and his then wife appear to have broken up subsequently and a dispute arose as to whether he was going to go on the holiday with Ms. Dittmann, his new partner, and whether his wife was going to go as well, as she wished, or whether she would have to leave the tour. The net result of this family dispute was, it appears, that Mr. Spirit cancelled his reservation for himself and Ms. Dittmann but did so too late to get his money back pursuant to the company's standard terms.
(c) As is not unusual nowadays, having a dispute with the company he chose to pursue it by means of internet publications, posting a series of lengthy and critical attacks on the claimants and people associated with them in the business on various consumer review websites. These postings were put up from various places, probably in the United Kingdom and the European Union.
(d) This went on for several years and ultimately the claimants commenced the first action, Action 03284, in England in July 2015. It was a claim in defamation and in harassment.
(e) The first defendant acknowledged service and matters were proceeding when the parties negotiated and signed a compromise agreement in the familiar Tomlin order form with a very detailed and carefully worded settlement agreement as the annexe to the Tomlin order. As a result of that settlement agreement a statement in open court settling the defamation proceedings was read before Warby J in the Royal Courts of Justice in October 2015.
(f) Sadly, that was not the end of the matter so far as the first defendant was concerned. He has written subsequently, indicating that he no longer considers himself to be bound by the settlement agreement. The evidence before me, to which it is fair to say I have not heard his reply beyond the email to which I have referred, indicates that he has not fully complied with either the negative restraints in the settlement agreement against future publications of a similar nature or the positive obligations which it contains to take down from the web existing publications which remain there.
(g) The matter goes further. The evidence suggests that he has posted new postings of a similar nature and also that he has made frequent, unwelcome direct contacts with the personal claimants, Dr. and Mrs. Weiss, by means of emails to their personal address making various threats and demands.
(h) The first defendant's most recent email to the claimants' solicitors, made after the service of these applications, raises no substantive defence or even moral justification of his conduct, in particular his apparent breaches of the settlement agreement and his direct contacts with the claimants of an unwelcome nature. Instead, it reiterates the demand that he had previously made for $1.5 million, or £1 million, as the price of his silence for the future.
(a) The general American Cyanamid principle. The court does not need to be satisfied the claimants will succeed at the trial, just that they have a sufficiently strong case and that the order which is sought is that which best preserves the balance of justice between the parties pending trial, if any.
(b) Insofar as the relief sought involves restrictions on the defendant's right of free expression under Article 10 of the European Convention of Human Rights, as in this case in large part it does, the court must also apply a higher standard, that specified by s.12 of the Human Rights Act 1998, which in summary requires the court to be satisfied that the claimant is likely to succeed in getting final relief at the trial to prevent the publication sought to be restrained.
(c) Thirdly, I should mention the need for the court to exercise special caution in granting mandatory injunctive orders. The court should be slow to grant such orders at any time, but especially slow to do so on an interim basis. The court needs to take particular care to ensure that any mandatory requirement is clear, practicable and enforceable.
(a) This is a solemn agreement which the first defendant freely signed only two months ago. He has put forward no reason or excuse for what, on the evidence before me, have every appearance of clear breaches which are highly likely to be established as such at trial. There is strong reason in those circumstances to carry the settlement agreement into effect in order to protect the claimants' vested contractual rights under that agreement. I can see no reason the other way in terms of the balance of justice why the first defendant should suffer any prejudice from the proposed relief, which merely seeks to hold him to the bargain that he has already freely entered into.
(b) In those circumstances it will be clear that both the basic Cyanamid test and, more importantly, the test under s.12 of the Human Rights Act are met. I consider it highly likely that at trial the claim in respect of the settlement agreement will succeed and injunctive relief of the sort I am about to grant will be granted at trial.
(c) In the course of discussions with counsel, who has redrafted the order accordingly, I have taken care to ensure that insofar as the order contains mandatory provisions (as it must in order to ensure that the defamatory publications are cleared from the internet, because many of the websites require the participation of the author if these things are to be taken down) those mandatory requirements are as clear and simple as possible and can properly form part of an interim injunctive order.