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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Al-Ko Kober Ltd & Anor v Sambhi [2019] EWHC 2409 (QB) (13 September 2019) URL: https://www.bailii.org/ew/cases/EWHC/QB/2019/2409.html Cite as: [2019] EWHC 2409 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
(1) AL-KO KOBER LIMITED (2) PAUL JONES |
Claimants |
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- and - |
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BALVINDER SAMBHI |
Defendant |
____________________
Mr. Balvinder Sambhi appeared in person
Hearing date: 18th July 2019
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Crown Copyright ©
MR. JUSTICE SWIFT
A. Introduction
"Publication I
7. On 16 May 2017, the Defendant published a YouTube Video at the URL https://www.youtube.com/watch?v=mRIdkjD_K8E under the headline "THE REAL AL KO STABILISER SCAM!" which, as at 6 October 2017, had been viewed 4,803 times. The video shows footage of caravan accidents, and footage of a car towing a trailer which appears to be being towed using the Torquebar. The video contains the following words defamatory and seriously harmful of the First Claimant:
AL KO REAL TRUTH!
AL KO DOES NOT WORK
AL KO = ACCIDENTS
AL KO = RISKING LIVES
THINK AL KO! THINK ACCIDENTS!
DON'T TRUST AL KO!
AL KO SAFETY!
("the Scam Video")
Publication II
8. On 26 May 2017, the Defendant published a YouTube Video at https://www.youtube.com/watch?v=yGqoGgYMHPk under the headline "AL-KO UK CONCEDES ALKO STABILISERS DO NOT WORK!" which, as at 6 October 2017, had been viewed 2214 times. The video shows footage of caravan accidents, footage of a car which appears to be towing a trailer using the Torquebar, and an image of the First Claimant's AKS stabiliser range, taken from the First Claimant's website. The video contains the following words defamatory and seriously harmful of the reputation of the First and Second Claimants:
THE GREAT ALKO STABILISER SCAM
PAUL JONES AL KO UK KOBER LTD ALKO STABILISERS DO NOT PREVENT ACCIDENTS
…
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING!
…
"And the proof is in the videos what I have shown on the YouTube Channel that when you go down a straight line, your product doesn't work, because obviously, why are caravans toppling over on a straight line of motorway?"
…
"What are you trying to do Paul, you won't risk your life, that you're selling a product, you're saying that you're not risking your life…"
…
PAUL JONES ALKO UK WILL NOT RISK HIS LIFE! BUT YOU ARE RISKING YOUR LIVES!
"Then why don't you do this test, then? If you're not risking your life, you're asking people, millions of people to risk their lives, in buying one of your products, but you won't take this test."
…
"How many accidents on YouTube, they're all showing your stabiliser. All of them, showing your stabiliser. Do a real life test, you do the test, and then you prove that you're not risking your life, then why are you asking people to risk their lives, the public, if you're not willing to do a real life test, and you can test the conditions."
…
"The public have got a false perception that your stabiliser is safe, and it's not safe. And what I am saying to you is you're risking the public's lives. And by not doing this test, you have declined to do a test, you can check the vehicle, you can check the stabiliser, you can check the caravan, so everything's right, do a live test, you're not risking your life, cos you're asking people to risk their lives, but you ain't going to risk your life, that's what you're trying to say to me. If it's stable, you wouldn't risk your life."
PAUL JONES ALKO UK WILL NOT RISK HIS LIFE! BUT YOU ARE RISKING YOUR LIVES!
…
"No, but it's not the case. You're prepared to let the public risk their lives, by your selling the product, but you won't prepared to risk your life, because you're saying it's stable and safe, and so your life is not at risk, so why not take the test? It's for security, because this is why I put the videos up in the first place, Paul, because it is for security, you're going down a straight stretch of motorway and you're having an accident."
…
AL KO STABILISERS DOES NOT PREVENT SNAKING! SNAKING=ACCIDENTS AND CRASHES! CONFRIMATION BY PAUL JONES AL KO KOBER UK LTDWWW.TORQUEBARS.COM WWW.YOUTUBE.COM TORQUEBARS
("the Paul Jones video").
9. On 3 August 2017, the Defendant published a YouTube Video at the URL https://www.youtube.com/watch?v=Se4GUIEKelc under the headline "AL KO STABILISER FRAUD! PT2" which, as at 6 October 2017, had been viewed 707 times. The video shows footage of caravan accidents, and footage of the Second Claimant describing the First Claimant's AKS stabiliser range at two trade shows. The video contains the following words defamatory and seriously harmful of the reputation of the First and Second Claimants:
THE GREAT ALKO STABILISER SCAM
PAUL JONES AL KO UK KOBER LTD ALKO STABILISERS DO NOT PREVENT ACCIDENTS
…
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING
"No, no, you're not… it doesn't prevent snaking…"
…
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING
"No, no, you're not… it doesn't prevent snaking…"
AL KO STABILISERS DOES NOT PREVENT SNAKING! SNAKING = ACCIDENTS AND CRASHES! CONFRIMATION BY PAUL JONES AL KO KOBER UK LTDWWW. TORQUEBARS.COM WWW.YOUTUBE.COM
("the Fraud Video")
10. On 4 August 2017, the Defendant published a YouTube Video at the URL https://www.youtube.com/watch?v=sSnsUDXBC4k under the headline "AL KO STABILISER FRAUD! PAUL JONES, WOULD I LIE TO YOU REMIX" which, as at 6 October 2017, had been viewed 360 times. The video shows footage of caravan accidents, and footage of the Second Claimant describing the First Claimant's AKS stabiliser range at two trade shows. The video contains the following words defamatory and seriously harmful of the reputation of the First and Second Claimants:
THE GREAT ALKO STABILISER SCAM
PAUL JONES AL KO UK KOBER LTD ALKO STABILISERS DO NOT PREVENT ACCIDENTS
"It all starts with the stabiliser on the front which is probably the most iconic of products which we have manufactured in the past. It's a stability device which basically helps with the prevention of snaking." - WOULD I LIE TO YOU?
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING – "No, no, you're not… it doesn't prevent snaking…"
"Helps with the prevention of snaking" - WOULD I LIE TO YOU?
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING – "No, no, you're not… it doesn't prevent snaking…"
"Helps with the prevention of snaking" - WOULD I LIE TO YOU?
PAUL JONES CONFIRMS ALKO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING – "No, no, you're not… it doesn't prevent snaking…"
AL KO STABILISERS DOES NOT PREVENT SNAKING! SNAKING = ACCIDENTS AND CRASHES! CONFRIMATION BY PAUL JONES AL KO KOBER UK LTD WWW.TORQUEBARS.COM WWW.YOUTUBE.COM
("the Lie Video")"
B. The proceedings to date
"5. Section 12(3) of the Human Rights Act 1998 provides that interim relief that might affect the exercise to the freedom of expression will only be granted before a full trial if the court is satisfied that the applicant is likely to establish at trial that publication of the information in question should not be allowed.
6. In determining the outcome of this application, made before trial, I am bound by the rule in Bonnard v Perryman, which establishes that an interim injunction will not be granted restraining publication of allegedly defamatory material if the Defendant proposes to justify the publication at trial, unless it is plain that the plea of justification is bound to fail. The principle in Bonnard v Perryman applies equally to claims of malicious falsehood, see Bestobell Paints Ltd v Bigg [1975] FSR 421.
7. In other words, I could only grant the injunction sought in relation to malicious falsehood if I was satisfied that no judge or jury could reasonably conclude that the statements made by the Defendant were true (see Gatley on Libel and Slander 12th Ed, at paragraph 25.12 and Fn 59). However, in assessing whether the statements might be true, I am not bound simply to accept the Defendant's assertion that they are true and leave the matter to trial. In Sunderland Housing Company Limited and another v John Baines and others [2006] EWHC 2359 (QB), the Court (Eady J) held, in the context of defamation but in a passage which can readily be transposed to malicious falsehood, that the Court would expect, as the "very minimum", that the Defendant seeking to rely on a statement as true would file a witness statement verified by a statement of truth that he believes in the truth of the statements; and that although the Defendant is not bound at that stage to submit full evidence to support his contentions, "it will not do simply to put in a blanket statement of intention or hope and leave it at that" (see [18]). I interpret this as meaning that the Defendant has, at least, to explain the basis for his assertion that the statements are true, so that the Court is in a position to assess whether the Claimants' case on falsity might be controverted at trial."
Nevertheless, as she went on to explain in the remainder of her judgment, she was satisfied on the evidence before her that the requirements for an interim injunction were met.
"15. I am satisfied that a substantial number of persons would reasonably have understood the statements complained of to bear one or other of these meanings. Indeed, Mr Sambhi does not suggest otherwise. When I asked him what he meant in these videos, he said he meant to say exactly what the Claimants suggest … He goes on to say, however, that he believes the statements, understood in those ways, to be true. That then is the real issue in this case: are these statements false?"
As to whether the statements were false, Whipple J stated as follows (at paragraphs 16 – 20 of her judgment):
"16. Mr Sambhi has not filed a witness statement. He has not put before the Court any evidence to support his statements or his assertion that they are true. He has not done the "very minimum" which Eady J suggested is required. That is a poor start.
17. When I asked him what evidence he relied on in asserting that these statements are true, this is the answer he gave (I summarise). He said that it all came down to the lies that Mr Jones and the Company had told. Those lies, he said, related to what the Company and Mr Jones had said about the AKS stabilisers' effectiveness in preventing "snaking". Snaking is when a caravan starts to veer to left and right behind the towing vehicle; in serious cases, the towing vehicle can lose control resulting in an accident. Mr Sambhi pointed to some assertions made by the Company and by Mr Jones (for example in the Trade Show Footage) to the effect that the AKS stabiliser "helps to prevent snaking"; then he pointed to others to the effect that the product is "not preventative" or "does not prevent snaking" (for example, in [a recording made by Mr Sambhi of a phone conversation between him and Mr Jones]). Mr Sambhi handed up various print outs from websites belonging to third parties (for example, other caravan retailers) which referred to the AKS stabilisers in different ways, some of them saying that the products "prevent" snaking, others that the products "help to prevent snaking", and he argued that these references should be attributed to the Company and Mr Jones as further evidence of their dishonesty. He argued that the Company and Mr Jones have lied in suggesting that the AKS stabilisers are guaranteed to prevent snaking, and that each has acknowledged those lies by accepting that the AKS stabilisers in fact offer no such guarantee and merely help to reduce the risk of snaking. This lie, he says, is a deceit on the Company's customers and justifies (as true) the various statements that he has made in his videos.
18. As is immediately apparent to anyone reading this judgment, none of the assertions by the Company, Mr Jones, or any third-party amounts to a guarantee that snaking will not occur if the AKS stabiliser is fitted. The various descriptions of the AKS stabilisers made by the Company, Mr Jones and third parties are broadly consistent, and convey a very different message from that which Mr Sambhi urges on me. The message is that the stabilisers will help to prevent snaking. There is no guarantee against snaking offered. Thus, the whole of Mr Sambhi's case appears to be built on a false premise. There is no lie.
19. Against that background, I come to ask myself whether any judge or jury, properly directed, could reasonably conclude that Mr Sambhi's various statements with the meanings we are agreed on, could be true. The answer is no. As I have said, there is no lie. There is, in consequence, no reason to suggest that the Company is fraudulent, that it is scamming or conning its customers, that the Company and Mr Jones are killers, or that either is engaged in knowingly risking the lives of customers. These are the most extreme statements. There is no foundation for any of them. They are obviously untrue.
20. I have paused to consider carefully whether I should reach the same conclusion in relation to the statement that the AKS stabiliser is defective, because this is a less extreme statement, the converse of which is to determine that the AKS stabilisers are indeed safe products – which goes beyond what a court is usually willing to do at the interim stage. But here too, Mr Sambhi has provided no evidence at all to support his claim that the AKS stabiliser is defective. Further, his explanation for this statement is also based on the premise that the Company and Mr Jones have lied, a premise which I have determined to be entirely false."
Thus, Whipple J concluded that there was no possible basis on which any judge or any jury could do anything other than conclude that Mr Sambhi's statements were "groundless" and that "all the statements made in the videos are untrue".
"43. It is clear from Mr Jones's witness statement that he is suffering substantial damage and distress as a result of the processing of his personal data by Mr Sambhi, in the various uses to which Mr Sambhi has put the Recording, the Trade Show Footage, and other images of Mr Jones. The use of his personal data extends far beyond the sort of criticism which a senior employee of a large commercial organisation might have to put up with in the ordinary course. Mr Jones is being vilified and menaced by the way in which his personal data has been used and manipulated in the videos. This is an unwarranted attack on him personally.
44. I am therefore persuaded that this is an appropriate case in which to order the Defendant to take steps to comply with the notice. Mr Rushbrooke invites me to do so by simply requiring the Defendant to cease processing any personal data in respect of which Mr Jones is the subject. He showed me Law Society v Kordowski [2011] EWHC 3185 (QB) where Tugendhat J granted a perpetual injunction following a final hearing, on such terms. I agree that the order should provide that Mr Sambhi must not process, further process or cause or permit to be processed any audio recording, video recording, still photograph or other information, including by disclosing the same to the public, amounting to Mr Jones's personal data for the purposes of the DPA.
45. It is perhaps a footnote to this part of the Claimants' application that Mr Sambhi is not, in any event, registered with the Information Commissioner. He should not be processing anyone's data at all. See Sunderland Housing Company at [25]."
C. The application for summary judgment
(1) The defamation claim
"Mr Sambhi's justification for his extravagant claims seems to rest entirely on the proposition that AL-KO has guaranteed that once a caravan is used with one if its stabilisers there will never be any snaking or instability. But the Company has made no such claims and it is absurd to suggest that the average caravan owner would understand the claims made by the Company as amounting to some sort of absolute guarantee that snaking well never occur with an AKS stabiliser, far less that no accident will ever occur. It is self-evident that the sort of external factors I have set out above could all cause snaking to occur, and that whilst no stabiliser product could ever prevent or completely eliminate all snaking or similar instability, the AKS stabiliser would be seen as a product which helps to suppress snaking when it does occur and to assist in restoring stability. Ultimately, however, there will always be occasions when, for reasons of, for example, improper loading, or dangerous driving, or extreme weather conditions, even a stabiliser cannot prevent a caravan accident."
"A stabiliser coupling reduces your trailer's tendency to sway by automatically clamping down on the tow ball before swaying can develop."
"For those with larger trailers or caravans, AL-KO has developed a specialised coupling designed to help minimise and reduce trailer sway. The coupling incorporates a clamping system that grips the sides of a specially designed 50mm towball and resists movement of the trailer. In a nutshell, it slows down any tendency for the trailer to sway or veer from its straight trajectory which helps catch and correct trailer sway before it escalates."
Mr Sambhi further relies on the fact that that other companies (the caravan manufacturers, and those who make or sell related products) either on their websites or in their brochures, also describe the AKS Stabiliser as an anti-sway coupling. He has taken me to a large number of websites and brochures where the AKS Stabiliser is described in this way. He submits that AKKL ought to have required any such statement to be corrected, and further that because AKKL has not done this, the statements on these other websites and in the brochures are to be regarded as representations by AKKL that the AKS Stabiliser will prevent snaking.
(2) Malicious Falsehood
"(1) In an action for … malicious falsehood, it shall not be necessary to prove special damage –
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the claimant …"
In her judgment at paragraph 11, Whipple J stated as follows:
"… To establish "calculated damage", a party must show that the statement of which complaint is made is calculated, i.e., more likely than not, to cause him pecuniary damage: see Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs, see Tesla [37]. Mr Sambhi does not suggest that the effect of his statements would not be to put off some potential customers; indeed, his avowed specific purpose in publishing these statements is to do precisely that. It is self-evidently likely that the Company has suffered or will suffer pecuniary loss by way of lost sales as a result of the publication of the videos. These elements are therefore established."
The standard that a claimant must meet on an application for summary judgment is higher. But even applying that standard, the same logic is compelling. I can see no realistic prospect that a court would conclude that this element of the cause of action was not made out.
(3) The Data Protection Act claim
D. The application to strike out
E. Conclusion
Note 1 Following the hearing of this application, and at my request, AKKL provided me with a copy of the pagers from its own website relating to the AKS Stabiliser. This describes the AKS 3004 as a device that “noticeably suppresses snaking and pitching movements for a safe and relaxed journey”. However, since it is not clear to me whether the text on pages supplied to me which are from 2019, were the same as the text on the website in 2017, I have placed no reliance on this for the purposes of my decision on the application for summary judgment. [Back]