England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(Mr Justice Gray)

		The Royal Courts of Justice The Strand London Friday 31 May 2002

Friday 31 May 2002

1. LORD JUSTICE MUMMERY: This is an application by Dr Akena Adoko in person for permission to appeal against the order made by Gray J on 25 January 2002. The judge granted an application on the part of the defendant, freeserve.com.plc, dated 19 December 2001, for an order that Dr Adoko's claim against them be struck out. The judge dismissed the claim and ordered Dr Adoko to pay the costs of the action, to be the subject of a detailed assessment. He refused Dr Adoko's application for permission to appeal on the basis that it had no real prospect of success.
2. In order to obtain permission to appeal from this court, Dr Adoko has to satisfy the court that there is a real prospect of his appeal against the striking-out order succeeding. I have to consider, therefore, the nature and circumstances of the claim which Dr Adoko wishes to pursue against freeserve.com.plc ("Freeserve"). Freeserve is an internet service provider. One of its customers, Neelu Berry, operates a website with the address "http://www.sunaina.fsnet.co.uk". Dr Adoko is a colleague of Neelu Berry and operates a link from that website to a book which he has written. It is called "The most corrupt British judges". On 20 November 2001 Freeserve received a written complaint from a firm of solicitors, Bindman & Partners, alleging that Dr Adoko's book contained defamatory and serious damaging allegations about one of its partners, Mr Robin Lewis, who also holds part-time judicial office. Dr Adoko has referred to the letter of complaint, which says that the website which is linked to the book, contains defamatory and seriously damaging allegations about Mr Lewis, suggesting that he is guilty of criminal offences and various other serious actions. The letter says:

"Mr Lewis has a reputation in the profession that he values and the publication of these words has caused potential damage to his professional and personal reputation and caused him distress."

3. The letter requests that the website is no longer accessible for this material.
4. After receiving the complaint, Freeserve suspended the website, claiming that in doing so they were acting in accordance with the terms and conditions of use, under which they reserved the right to suspend, restrict or terminate access to the Freeserve service for any reason. They also relied on an express condition which Dr Adoko agrees applies. That condition imposes an obligation on customers of Freeserve "not [to] use the Freeserve Service to transmit or post any material which is defamatory, offensive or of an obscene or menacing character, or which may, in our judgment, cause annoyance, inconvenience or anxiety to any person."
5. When Freeserve sent a letter about locking the site, on the grounds already mentioned, Dr Adoko responded by saying that he had been briefed by his colleague, Miss Neelu Berry, that they had sent an e-mail about the complaint from Mr Robin Lewis. The letter said that the Sunaina website is published by Miss Neelu Berry in cooperation with him and that he was responsible for the publication on corrupt judges while she was responsible for publication on the death of Sunaina. I pause to mention that it is not relevant for the present application for me to deal with the matters for which Miss Berry is responsible. Dr Adoko alleged in his letter to Freeserve that the suspension of the site constituted a violation of various rights, particularly rights in the Convention on Human Rights, as well as United Kingdom statutes. He wrote in this letter before action that he intended to proceed against them in the courts unless they lifted the suspension within 48 hours. He said:

"If the suspension is not lifted, I will be obliged to institute forthwith an action for violations of my human rights and for a declaration that you are not a fit and proper organisation to manage a public internet service."

6. Dr Adoko proceeded with his claim, as Freeserve did not accede to his request. In the claim form, which he issued in the Queen's Bench Division, he summarised his claim as "Breaches of Human Rights". He set out the factual background, which I have already summarised, and alleged that the reasons given by Freeserve for suspending the website were contrary to the human rights requirements of proportionality and fell within Wednesbury unreasonableness. He set out in summary his allegations about Mr Lewis, stating that "It is in the public interest that the truth about the criminal and civil offences committed by Robin Lewis ... be published." He then alleged that in the circumstances the suspension of the website by Freeserve violated his freedom of expression, contrary to Article 10 of the Convention; that Article 14 had been violated by his being denied an opportunity of publishing his complaint of racial discrimination; that Freeserve had acted incompatibly with his human rights in breach of section 6 of the Human Rights Act 1998; that Article 17 of the Convention had been breached by denying him the use of public media to voice his complaints about discrimination; and that the suspension of the website amounted to punishment of him, contrary to the Contempt of Court Act 1981, without having had a hearing in open court; and finally that it was contrary to section 43B of the Public Disclosure Act 1998 to suspend the website, as that section protected him from punishment for publishing what amount to criminal offences committed by Mr Lewis. He claimed damages and a declaration that the suspension of the website violated his human rights and was unlawful.
7. Freeserve then applied to strike out the whole claim. Their application was supported by a witness statement from their solicitor, Geraldine Proudler. The matter came before Gray J. He found that the material published was clearly defamatory of Mr Lewis. He said that Freeserve was not a public authority so as to be susceptible to judicial review or to give rise to a liability on its part for breach of sections 6 and 7 of the Human Rights Act. He went on to hold that, even assuming that sections 6 and 7 of the Human Rights Act conferred on a private individual the right to sue another private individual for breach of the articles in the Convention, there had been no breach of Articles 10, 14 and 17 relied on by Dr Adoko in his particulars of claim. He expressed the view that the claim under the Contempt of Court Act was unclear and unarguable, and held that there were no rights breached in respect of any other domestic legislation. He concluded at paragraph 15 of his judgment, saying:

"It, therefore, follows that I must strike out this claim on all of the grounds relied on in the application notice. I would also, if necessary, have held that this was a case which had no reasonable prospect of success within Part 24."

8. Dr Adoko seeks permission to appeal on the grounds set out in his appellant's notice. He says that the decision of the judge is contrary to the EC Directive on Unfair Terms in Consumer Contracts 93/13/EEC and to the Unfair Contract Terms Act. He has produced for the court a copy of regulation 5 of the Unfair Terms in Consumer Contracts Regulations 1999, which states:

"(1) A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer."

9. He says that the decision is also contrary to section 4(1) of the Criminal Law Act 1967, Article 10 of the Human Rights Act (by which I think he means the Convention); Article 18 of the Convention; Article 6 of the Convention; sections 6 and 7 of the Human Rights Act; contrary to the principle of proportionality and to the law governing admissions under Part 14.3 of the Civil Procedure Rules. These grounds of appeal are then amplified by paragraphs of argument which have been developed by Dr Adoko in his oral submissions today.
10. The essence of what he says is that he has valid legal points for challenging the right of Freeserve to invoke the condition on which it relies to entitle them to suspend the website. He emphasises that, while admitting that he has called Mr Lewis names, he is entitled to do so because, in his view, what he alleges is true. In the circumstances, he says, the suspension of the website violates his right to speak the truth and seek justice.
11. I have considered the grounds of appeal. My views are as follows. First, there is no claim in relation to the Unfair Terms in Consumer Contracts Regulations, regulation 5. The internet service provided by Freeserve is subject to conditions, as Dr Adoko admits. The conditions in question are not exemption or limitation clauses, or unfair or deemed unfair provisions. They are legitimate conditions relating to the operation of the site. In view of the nature of the allegations made by Mr Lewis and the basis of his complaint to Freeserve about the dissemination of the allegations, Freeserve were entitled to say that in their judgment the material which Dr Adoko was disseminating on the website "caused annoyance, inconvenience or anxiety" to Mr Lewis, in which case they where entitled to suspend the website for breach of that user condition.
12. As to the other matters relied on, I have formed the view that any duty under the Criminal Law Act 1967 to report a criminal offence which is suspected to have been committed does not give the person a right to publish allegations of the perceived criminal offence. There has been no breach of Articles 6 or 18 of the Convention nor, in my view, of Articles 10, 14 and 17. The arguments about proportionality would only arise if there had been a breach of the articles. As for the argument about an admission under 14.3 of the Civil Procedure Rules, and any admission by Freeserve that the material on the website disclosed and/or alleged criminal offences, that does not amount, obviously, to any admission that the allegations were correct.
13. In my judgment this must also be seen in the context that the circumstances do not reveal that Dr Adoko has any right to bring a claim for breach of contract against Freeserve. He operates in association with others who are or may be contracting parties, so that even if he had some complaint about the way in which the condition was invoked, he could not rely on the law of contract for any cause of action. It seems to me that he appreciates this fact from the way in which he has formulated his claim as being claims for breach of his human rights. But for the reasons I have mentioned, I have reached the conclusion that none of the specified rights which he has set out in his particulars of claim have been breached and there is no reasonable prospect of him succeeding in these proceedings. I agree with the judgment of Gray J.
14. This appeal has, therefore, no real prospect of succeeding and I refuse permission to appeal.
ORDER: Application refused