England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice
		26th July 2006

MR. JUSTICE EADY:

1. This case was listed before me today for half a day, which was optimistic. The principal claimants are Sunderland Housing Company Limited and Mr. Peter Walls and they seek relief in respect of various causes of action including defamation, harassment and data protection. Different considerations may very well apply to each of the two principal claimants (as I have described them) because of the corporate entity status of the first claimant. It would not be right, in my judgment, to consider them simply as a package.
2. They also sue in a representative capacity on behalf of certain individual employees, in particular for relief in relation to harassment having regard to the jurisdiction under the Protection from Harassment Act 1997.
3. The claimants also seek what I think is conveniently described in shorthand as Norwich Pharmacal relief against defendants and some additional respondents. A certain amount of agreement and concession has taken place in relation to those. That relief is now sought finally upon a more limited basis than originally.
4. The causes of action arise out of what I think has been described fairly as a website campaign which has been going on for many months. Mr. Walls in particular has been accused of many different kinds of wrongdoing: various allegations of corruption, sexual misconduct and so on. Suffice to say at this stage the allegations are undoubtedly for the most part serious ones.
5. The relief sought is now to be found in a draft order which has developed on an evolving basis. Because much of the relief sought would restrict freedom of speech, as protected by Article 10, I have been referred to the provisions of s.12 Human Rights Act 1998. I naturally take those provisions into account.
6. It is probably convenient that I consider first the case which was argued most fully before me; namely the case against the first defendant, Mr. Baines, who was represented today by Mr. David Price. Mr. Price told me that he had only recently been instructed and was labouring to some extent at a disadvantage in the sense that, first of all, he had not had an opportunity to take full instructions from his client, and also was trying to deal on the hoof with a case which, as I said a moment ago, rather evolved. Nevertheless, he argued the case as best he could before me this morning, seeking to resist the relief sought against Mr. Baines.
7. The terms of the injunction, in so far as they are relevant, I should identify at this stage. Of course, they are relevant to other defendants also, but I shall not need to repeat the terms of the order as I turn to other parties. The injunction is in these terms:

"1 Up to and including trial or further order of the court (whichever is the earlier) the first, second, third, fourth and fifth defendants, whether by themselves, their servants, agents or otherwise howsoever must not :

1.1 publish or otherwise communicate words complained of by the claimant set out in Appendix A to the particulars of claim, or any similar words defamatory to the claimant;

1.2 Pursue a course of conduct which amounts to harassment of the second claimant or the representative parties by publishing or otherwise communicating anonymous statements about any of them in any form including on the website of the forum, in the newsletter;

1.3 Process any personal data related to the second defendant or the representative parties;

1.4 Save for taking down material from the website of the forum or material otherwise available online, delete from electronic storage, destroy or dispose of any document falling within the categories listed in Schedule 2 to the order, save that nothing in this order shall prevent the defendant from publishing or communicating any information for the purposes of obtaining legal advice or defending these proceedings. For the purposes of this the party which allows any material to remain on any website or otherwise to be available online when he has the means to remove it will be deemed to be continuing to publish, communicate and/or process that material in breach of paragraphs 1.1, 1.2 and 1.3 above."

8. The second paragraph is headed "Provision of Information" and is as follows:

"The first defendant shall, by no later than 4 p.m. on Tuesday 1st August 2006, provide to the claimant a witness statement verified with a statement of truth setting out the matters listed at Schedule 3 to this order."

9. There are also orders relating to some of the respondents set out in paragraph 7 which I shall return to later.
10. Mr. Price, on behalf of Mr. Baines, considered first the proposed injunction to restrain publication and took his stand on what he described as a point of principle; namely the principle which is familiar from the 19^th century in Bonnard v. Perryman, as explained and affirmed in later cases.
11. It is accepted now that the first defendant has published material on the website and is responsible for the website and that he is the person who has administered the website under the name "Jackpots". But reliance is placed on his witness statement, and in particular upon the proposition contained within it, that he intends to justify any defamatory allegations.
12. At the last hearing, which took place before Davis J. on 19^th July, the first defendant asked for an opportunity when he was acting in person to put in evidence in support of his proposed plea of justification. That opportunity was granted by Davis J. He now appears to have changed his mind, and having instructed Mr. Price, has apparently decided to rely on the point of principle to which I have already briefly referred.
13. Perhaps not surprisingly, in view of the rather wide nature of some of the allegations and the refusal to produce any supporting evidence as had been contemplated at the last hearing despite being given the opportunity to do so, the claimants and their advisers have considerable doubts now as to the bona fides of the first defendant. Nevertheless, it is right that I should refer to the principle in question. For convenience I was referred to para.25.6 Gatley on Libel and Slander (10^th edn) which is introduced by the rubric: "Defence of justification."

    "Where the defendant contends that the words complained of are true, and asserts that he will plead and seek at trial to prove the defence of justification, the court will not grant an interim injunction, unless, exceptionally, the court is satisfied that such a defence is one that cannot succeed. This was the decision in Bonnard v. Perryman [ [1891] 2 Ch 269 ]. Lord Coleridge [there] explained [at p.284] 'The right of free speech is the one which it is for the public interest that individuals should possess and, indeed, that they should exercise without impediment, so long as no wrongful act is done; and, unless an alleged libel is untrue, there is no wrong committed; but, on the contrary, often a very wholesome act is performed in the publication or repetition of an alleged libel. Until it is clear that an alleged libel is untrue, it is not clear that any right at all has been infringed... ' This statement of the law has been endorsed and applied consistently since 1891. That a claimant cannot obtain an interim injunction to restrain the publication of defamatory words in the face of a statement verified as true from the defendant stating that he can and will justify the alleged libel can now be regarded as an invariable rule, unless it is plain that the plea of justification is bound to fail. The claimant need not state that he will justify the particular words or allegation comprising the alleged libel: it is sufficient for him to declare his intention to justify the core or sting of the alleged libel, provided, of course, that the core or sting is a wider or more general meaning than that conveyed by the particular matters described in the words complained of, and is a meaning that the words are capable of bearing."

14. I should add that in footnote 23 the learned editors make this comment in the context of the words "a statement verified as true". What they say is this:

"An affidavit used to be required but under CPR the general rule is that at interim hearings evidence is by witness statement. (r.32.6(l))"

15. Mr. Price is arguing effectively that the Article 10 free speech rights of his client trump the claimant's Article 8 rights to the protection of reputation and privacy and the integrity of the personality. It is necessary to remember that clear denials of all the defamatory allegations have been made by Mr. Walls in his two witness statements. There is nothing at this stage to suggest that I should treat his evidence as false or dishonest as to its content. Is it right in those circumstances to refuse an injunction merely when there has been an expression of an intention to justify and then to permit a defendant to go on publishing widespread allegations which are as various and grave as these?
16. There is no doubt that Bonnard v. Perryman is powerful authority which has been endorsed not only in modem times but also subsequent to the coming into effect of the Human Rights Act. Some weight, of course, must now be given to Article 8 interests where they are engaged, especially in the light of the proposition advanced by their Lordships in Re S to the effect that when such rights are engaged no one Article will necessarily automatically prevail over another. There is no doubt that Article 10 will always weigh very powerfully, but Article 8 cannot simply be put out of account altogether.
17. It seems to me at least right for a defendant who seeks to resist an injunction against publication of defamatory words to identify the defamatory meaning or meanings which he intends to justify, and also to state in a witness statement verified by a statement of truth that he believes in the truth of the words in that meaning or those meanings. That, it seems to me, must be the very minimum. Of course, there is nothing to prevent a defendant, if he or she wishes, from adducing evidence to show the supposed strength of a proposed plea of justification but that is not something which is a necessary ingredient.
18. With respect to Davis J. it is not necessary in order to resist an injunction to produce "cogent evidence", although that phrase was used in the course of the last hearing when Davis J. was discussing the matter before giving his ruling, I think with Mr. Baines. Where there are many and various defamatory allegations, some of which are undoubtedly very serious, alleging criminal misconduct and matters undoubtedly of great public interest (which, in a sense, cuts both ways) it seems to me that it must be right that a defendant should be required at least to identify the extent to which he proposes and intends to justify. It will not do simply to put in a blanket statement of intention or hope and leave it at that. It is, in my judgment, too cavalier.
19. So far that has not been done. I will therefore grant the injunction against the first defendant, or rather continue the injunction against the first defendant unless and until the time comes when those basic requirements which I have identified have been complied with. At that stage, it is entirely open to the first defendant and his advisers to make an application to vary or discharge the injunction. But that will have to be addressed on its merits as and when the application is made.
20. Until that happens, it seems to me that there is absolutely nothing in the scales to set against Mr. Walls' very clear denials in his witness statement. At this stage it is not possible for me to say that there is a clear issue which has to be left to trial. At the moment, it is all too vague. That moment may come. Bonnard v. Perryman may then prevail, but at the moment it seems to me too early to give it that priority.
21. Mr. Walls was criticised in the course of argument for not condescending to detail in his denials. But that is somewhat ironic coming from the first defendant because he alleges, for example, against Mr. Walls that he has corruptly favoured "golfing friends" or words to that effect, without identifying the nature of the favour or the friend or friends in particular. There might be something to be said for a need on Mr. Walls' part to condescend to further detail when he is given further particulars of that kind. But so long as the allegation remains vague and general, it seems to me that he is entitled to put in a clear unequivocal denial that the allegations are true. It is not for him to anticipate some proposed indictment which might be drafted in the future.
22. I should say that it is part of the background to this case that in the context of the claimants' concerns about the first defendant's good faith that so far, despite the gravity of the allegations which have been made, there has been no reference to the police or to any regulatory authority with a view to having these serious allegations investigated. That is simply a factor in the background.
23. The second type of injunction which is sought is that in relation to harassment. At this stage, the claimant's draft has been somewhat narrowed so that, as I made clear earlier, what it is sought to restrain is harassment by publishing or otherwise communicating anonymous statements. Of course, the claimant would like to restrain on a wider basis, I have no doubt. But it has been narrowed. The reason for that is because there is a particular source of anxiety and concern and stress in being pursued or harassed by people anonymously because one cannot, in the nature of things, know quite what is going on. If one's accuser comes out into the open it may be unpleasant but it does not have quite that level of stress attached to it. For the moment therefore the second claimant is content to confine his claim to anonymous publication.
24. It seems to me that that relatively modest form of restraint against the background of the continued harassment over the past many months is reasonable and proportionate. I propose therefore to grant that injunction also against the first defendant. I shall consider the other defendants shortly.
25. There is now a third head of claim, as I already rehearsed, relating to the Data Protection Act. I have considerable sympathy with Mr. Price over this because he himself has not been in a position to research and respond to this in the detail that he would like. He says that the potential effect of such an injunction is very wide-ranging and potentially there would be a "floodgates" argument. That may be so, but Mr. Tomlinson QC appearing on behalf of the claimant (who has formulated this undoubtedly novel argument) puts it on the basis that because the defendant is not registered it is, in the nature of things, in a statutory environment created by Parliament, unlawful for him to be processing personal data in those circumstances. His remedy, says Mr. Tomlinson, if he wishes to take that course in relation to this claimant or anybody else, would be to be registered. Normally, when one is dealing with publications of this kind, Mr. Tomlinson submits, there is a registered person in the background and therefore one has the protection of the principles laid down by Parliament.
26. I appreciate that this is a novel and potentially wide-ranging order and that Mr. Price has not yet had an opportunity to deal with it fully. I shall, however, make the order - at least on a temporary basis. There will be the opportunity to apply for this also to be discharged if Mr. Price thinks it right as a matter of principle to make the application. But at the moment it seems to me to be an entirely proper order to make for the short reasons explained by Mr. Tomlinson.
27. I shall also make the order about not destroying or disposing of documents, as I rehearsed it earlier.
28. So far as the claimants are concerned, I am prepared, as I indicated earlier, to draw a distinction between the corporate claimant and the second claimant in so far as it matters in practical terms. I propose to confine the injunction in relation to para. 1.1 and para. 1.3 to the personal individual claimant. In other words, I am not going to grant that kind of relief to the corporate claimant. There is an argument, which has not been fully developed in the course of the hearing today (everyone has been under considerable pressure of time), that there would be an analogy here with the corporate claimant and 1 public body, in contemplation of their Lordships in Derbyshire County Council v. Times Newspapers, but apart from that, so far as defamation is concerned it seems to me that most of the defamatory allegations relate primarily to Mr. Walls or some other human individual rather than a corporate entity. That is because of the nature of the allegations which are made in Appendix A.
29. So far as the second and fourth defendants are concerned, they were represented before me today by Mr. Adam Speker. Witness statements have been put in which make it clear that their case is that they deny responsibility for the publications on the website in question. There are powerful arguments, which I have seen and considered, to the effect that there are reasonable grounds to suspect them of being involved, not least of course the use of stickers on the vans of the corporate fourth defendant which rather suggests some knowledge on the part of the second defendant. But in these circumstances it seems to me that suspicion is not enough. I am confronted with clear statements from them. Mr. Speker is, in my judgment, correct when he submits that I would effectively have to be finding at this stage on paper that I rejected that evidence as dishonest. I cannot do that. Of course, there are suspicions. Suspicions will have to be resolved at a later stage. As I say, the hurdle is not, in my judgment, sufficiently overcome to enable me to grant relief against the second and fourth defendants.
30. It must be remembered, after all, that the fundamental requirement for the granting of any interim injunction is that the court is satisfied that there is an apprehended wrong, in this case an apprehended tort in the form of libel or harassment. That is not to say, however, that Norwich Pharmacal relief should necessarily also go out of the window.
31. The case was developed before me briefly by Mr. Tomlinson in relation to the remaining defendants against whom he seeks relief. There is the third defendant, Mr. J. E. Smith, who has not partaken in these proceedings, but I record the fact that I have received a medical certificate and a covering letter from him stating that he is unable for health reasons to attend today. I think he has taken that stance before. I see no reason to go behind it, but it is noteworthy that he has not sought an adjournment and therefore it seems to me entirely appropriate for me to address the case against him in his absence. Of course, he will have automatic liberty to apply to discharge the injunction if he wishes to do so as and when he is here. But the case has been made out against him, it seems to me, that there is evidence that he is likely to publish defamatory allegations if he is not restrained. In this context it is important to have in mind particularly the statement of Mr. George Stevenson at para.6.
32. So far as the fifth defendants are concerned, this is a modem formulation. They are described as those persons responsible for the publication of the website www.dadsplace.co.uk and its associated chat forum and the publication and distribution of a newsletter, and a leaflet "Sunderland - the truth". That is based on modem thinking about defendants who are not able to be identified because they are, for one reason or another, keeping themselves from being identified by the claimant or by the court. Reference was made to the Harry Potter case and the judgment of Sir Andrew Morritt. It seems to me to be a formulation which is perfectly consisted with that and I shall grant the orders which I have already granted against the first and third defendants against the fifth defendants.
33. That leaves me to address the Norwich Pharmacal relief. That principle is now well-known. It is, of course, based on public policy, as was explained by their Lordships in the Norwich Pharmacal case [1974] AC 133 over thirty years ago. It is to enable people who have evidence of wrongdoing to identify the wrongdoer so that they can be brought to court.
34. In relation to this form of relief, and its alternative combination put on the basis of seeking further information, which was one of the arguments raised by Mr. Tomlinson, Mr. Price this morning raised, in a blanket way, s.10 Contempt of Court Act. He submits that the formulation, particularly against his client in relation to the provision of information in Schedule 3, would give rise automatically to an infringement of s.10 which is itself of course a manifestation of Article 10 European Convention on Human Rights. It is in these terms:

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, a source of information contained in a publication for which he is responsible unless it be established to the satisfaction of the court that the disclosure is necessary in the interests of justice or national security, or for the prevention of disorder, or crime."

35. Normally, of course, one thinks of that as being designed to protect the sources of journalists, and particularly of course investigative journalists. It is not so confined and it is important to see how it might apply in the context of the order sought against Mr. Baines. What the claimants wish to obtain is information relating to those people who have been involved in the website in the various roles identified in Schedule 3 - people who wrote material, provided written material, edited material, placed material on the website.
36. I can envisage circumstances where s.10 might be relevant. For example, if someone was responsible for the contents of a website, as Mr. Baines is in relation to this one admittedly, and someone posts on that website anonymously information about, let us say, a police officer being corrupt, and the person who is the primary witness to that corruption is the anonymous person who has posted the information. I can see that when the person in charge of the website is ordered to disclose the identity of the person posting that information under a Norwich Pharmacal order he might be able to rely upon s.10 because the information about corruption on the part of the police officer would be contained in a publication for which he was responsible. On the hypothesis which I have just identified, the source of information would be the author of the posting.
37. However, that is a very special case. It does not seem to me that it is inevitable that if I were to make an order against the first defendant in the terms sought by the claimant there would be infringement of s.10. It seems to me to be a proper order to make, subject to that. The way to deal with this, as I suggested in the course of argument, is for the first defendant and his advisers to take the point when it looks like arising in any particular circumstances. In other words, if there is danger or risk of a source being identified contrary to the protection of s.10 then that is the time to make the point. But in general terms, I think the order is a proper one to make.
38. I will check this in a moment but I do not think Norwich Pharmacal orders are sought against the second and third defendants. No. So I need not deal with that.
39. I turn, therefore, to the people who have been described as respondents. There were nine respondents. As a matter of fact, for one reason or another, either Mr. Tomlinson does not wish to proceed in respect of some of those today because further information has been obtained, or it is clear that no further information can be obtained. I was left therefore with four respondents: Mr. Andrew Foster, Miss Celia Tate, Mr. Lamb and Hotchilli Internet Limited.
40. The relevant evidence is to be found against Mr. Foster in para. 111 of the witness statement; Miss Tate, para. 140; Mr. Lamb, para. 148 and Hotchilli in PW1 file 2 tab 111 and tab 6 154, supplemental bundle tab 7 para.43. In relation to Mr. Lamb and in relation to Hotchilli Internet Limited there is no opposition to the order being made, subject to costs orders of various kinds, which I shall come to later. But the ground has been laid in respect of all those defendants in that evidence, it seems to me, to fulfil the requirements of Norwich Pharmacal relief. I shall therefore grant those orders.

There are now no doubt outstanding matters to deal with, but I think that deals with the substance of what I was asked to address.

(For discussion after judgment please see separate transcript)