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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th April 2013

MR. JUSTICE MACKAY:

1. I now give the reasons for findings of breach of injunction and contempt of court that I made in this court on 27th March last. This was an application by the claimants to commit the defendant for breach of the terms of an order of Tugendhat J dated 7th February 2013. This judgment should be read in conjunction with the short resume given on 27th March.
2. The background in short was that the defendant, Mr. Pead, was formerly a teacher employed by the first claimant who was dismissed from their service due to allegations of disciplinary breaches. He brought a claim for unfair dismissal in the Employment Tribunal and that claim failed. The third and fourth claimants respectively are the former Executive Director of the Children and Young Persons' Service in Lambeth Council and the Assistant Director of Standards. Each was involved in the proceedings which led to the termination of Mr. Pead's employment. The second claimant is a firm of solicitors who act for the other three.
3. There are two actions in being, HQ 13 X 00438 and HQ 13 X 00439, which have been called in these proceedings respectively the "harassment" and "privacy" actions. They result from a campaign which the defendant has run, as he sees it, to clear his name and expose a conspiracy to cover up wrongdoing and corruption in the running of the affairs of the first claimant. That includes allegations of mishandling of matters relating to the abuse of children. It was to that end the defendant co-authored a book entitled "From Hillsborough to Lambeth" purporting to be an exposé of such corruption. This book appears only ever to have been available for purchase on line.
4. On 30th January the claimants applied on short notice to Tugendhat J for injunctive relief and that was granted until the return date, the 7th February. In the harassment action the operative clause of the order made stated that the defendant must not

"(a) engage in any course of conduct amounting to harassment of the first claimants' officers and employees, the second claimants' partners and employees, the third and fourth claimants and each of them whether by the defendant committing them himself or by soliciting others to commit them including (but not limited to) the following acts:

(b) further publishing the book and the related claims, allegations and statements complained of in the Part 8 claim form and its confidential schedule in this action, or any similar claims …

(c) contacting the first claimants' officers and employees, the second claimants' partners and employees, the third and fourth claimants and each of them, by any means whatsoever including by telephone, e-mail, social network or any other electronic communication, or in writing, save that the defendant may correspond with Mr. Damian Crosse of the second claimants for the purpose only of the proper conduct of his defence of this action and any further action brought by the claimants herein against the defendant."

5. The defendant says that the claimants' advisers fraudulently deprived him of the right to attend the hearing on 30th January by giving inadequate notice and the order made is therefore void ab initio for that reason and for the reason of it being an abuse of process. He claimed that counsel and solicitors for the claimants misled the court on that occasion. On the return date of 7th February the defendant did appear at court and I have read the transcript of that hearing that day and a copy of the written reasons distributed five days later in support of the Judge's decision on 7th February to continue the orders made until trial. Tugendhat J summarised the issues in the litigation itself in this way:

"Since about August 2012 [the defendant] has been engaged in a campaign to proclaim his innocence. He has used websites and a book … which was published in December. The book contains information in relation to children for whom Lambeth had had responsibilities, and statements which the third and fourth claimants complain of as defamatory of them. There have also been a number of website postings relating to the third and fourth claimants and their alleged role in his dismissal by Lambeth. Other employees have also complained of being threatened by the defendant. These are under names which the claimants submit are probably pseudonyms of the defendant."

6. The Judge went on to find on the evidence before him that Lambeth was likely to establish at trial that publication of the information the subject of the privacy action should not be allowed under section 12(3) of the Human Rights Act and that it was likely to establish that the information was confidential or the publication of the information was unlawful under the Data Protection Act 1998. As to the harassment proceedings he noted the defendant had not put forward anything that might amount to a defence. The Judge had seen evidence that the defendant had been served with the papers on 2nd February. The defendant raised issues about this service but it is to be noted that (as he put it at page 6E of the transcript, referring to himself in the third person) despite the conflicts in the two accounts of the defendant and of the process server, they both agreed that "Mr. Pead was present at the time the process server served the documents".
7. The Judge found that the harassment claim was not just a good arguable case but was likely to succeed at trial. He did not find the defendant's statements of fact capable of belief. He continued the injunctions unchanged until trial. The Judge read out the terms of the orders to the defendant who said he understood them but he opposed their continuation, he said, on the grounds the Judge had been deceived. The Judge, as I have said, did not believe the case the defendant was presenting to him with the result that he did indeed continue the orders.
8. As to what followed, thereafter the claimants complain of continued breaches of the orders with the result that on the 26th February they served an application to commit the defendant supported by an affidavit from Mr. McBurney. On the 13th they noticed that their notice of application was defective, it did not incorporate a penal notice in accordance with CPR 18 PD 16.2. They amended that omission by an e- mail to the defendant adding a penal notice in the prescribed form. Miss Addy has taken me to the case of Nicholls v. Nicholls [1997] 1 WLR 314 and submits that the defect in the notice, which she accepts, was cured by this course of action. Nicholls was a case where the committal order itself had failed to include the right of the contemnor to apply to purge his contempt. Lord Woolf reviewed the consequences of irregularities in the obtaining of committals at 326C. I need not set out the quotation here. I agree with Miss Addy's submission no prejudice of any sort was caused to the defendant by this omission and the requirements of justice to both parties require me to consider the notice of application as having been validly served.
9. On 14th March 2013 the matter came before the court for the first time. The defendant sought an adjournment to obtain legal representation. That was granted. The court ordered the committal application adjourned to 27th March in order for him to obtain such representation and directed that any evidence he was to rely on be served by 21st March. No evidence was served by that time. On 21st March the defendant sent an e-mail to the court claiming he had only just received the order of 14th March. Be that as it may he cannot in any way have been unaware of its content. He said he had been unlawfully arrested and held in custody for some 24 hours or so from 15th to 16 th March; that had caused him to lose a considerable amount of time to find a barrister and prepare his defence. He believed himself to be not guilty of the allegations of contempt. Nothing more was heard from the defendant until the afternoon of 26th March, the day before the date fixed for the hearing, when he submitted a skeleton argument but no witness statement. On the morning of the hearing itself he produced further documents which included what he called an application to strike out both sets of proceedings.
10. I now turn to consider the allegations of breach. The first breach relates to the book "From Hillsborough to Lambeth" said to contain references to pupils or former pupils in the Pupil Referral Unit of Lambeth run by the first claimant. The order at paragraph 2 simply prohibited publication or any communication disclosing any such information. The evidence before me is that the book was still being offered for sale on line by certain retailers identified in the McBurney affidavit of 25th February 2013 as at 17:00 hours on 7th February. Subsequently, when the second claimants notified these retail outlets of the existence and terms of the injunction, they immediately removed the book from sale. The claimants say this is something the defendant could have done with ease whereas in fact he appears to have done nothing. The publisher of the book is a limited company called Invenire Limited. Its registered office shares the same address as that of the defendant and Mr. Pead admitted to the court that it was a company which followed his instructions and he had "an association" with it. He was no more specific than that. He claims that he had a lengthy lunch with the "printer and distributer" and had told them he would like them to comply with the order. They said it was difficult because it was on so many websites.
11. This I find to have been a specious and obfuscatory response by the defendant and I readily reject it. I am satisfied he controlled the retailing of the book in a practical sense. Even if he did not, had he done what the solicitors did and simply sent a copy of the order to these retailers, he would, I find, plainly have achieved the result that the solicitors later achieved. He was in clear breach of this provision. I find it proved to the criminal standard.
12. The next breach I consider is that set out in paragraph 24 of the McBurney affidavit. On 15th February an extremely unpleasant and threatening e-mail was sent to a trainee solicitor in the employ of the second claimant. It was apparently from the e-mail account of someone calling himself "Brian Hopkins" with an e-mail address of theatreoftheself@gmail.com. It was signed by someone calling himself Thomas Kelly. I am satisfied so that I am sure that this was sent by the defendant. Brian Hopkins purports to be the author of postings on the website www.corruptlambethofficialsblogspot.co.uk which carry the defendant's fundamental message. His e-mail address is listed on the website www.theatreoftheself.com which website lists Brian Hopkins and Michael Bird, the co-author together with the defendant of the book, as contacts, together with a mobile telephone number which has been clearly established by evidence to be that of the defendant. When asked about this e-mail the defendant said he had no knowledge whatever of it.
13. I reject that submission. I am sure that this was him using the convenient pseudonym "Brian Hopkins". It was a plain piece of harassment contrary to the terms of the order in the harassment action which clearly and expressly permitted the defendant only to contact the second claimant's solicitors through their partner, Mr. Crosse.
14. The other breaches complained of fell into three categories: first, allowing material containing pupil information (as I will call it for short) to remain on line; secondly, allowing internet postings prohibited by the harassment order to remain on line; and, thirdly, making fresh postings in breach of the harassment order. Miss Addy, at the court's request, selected samples of such alleged breaches and agreed that her application should be confined to consideration of them.
15. First, there were two postings on the site www.lambethchildabuseandcoverup.com, the first headed "Proposal for forfeiture of Dunipace OBE" and emanating for the "All Around Justice campaign for the forfeiture of the OBE by Ms. Phyllis Dunipace for her unlawful removal of Head Teachers Brian Pead and James Walker from the posts …" and the second entitled "Brian Pead makes a statement about child abuse in Lambeth to Essex Police". These were both pleaded in the claim form in the harassment action and both remained on the website as at the 18th February. The claimants say that it is the case and it is to be inferred irresistibly, that this is a site which is controlled by the defendant or sympathisers of his acting in concert with him. "All Around Justice" operates from a PO Box number in Southend on Sea where the defendant lives. It is plain the website is no more than a vehicle for the defendant's grievances as is evident from documents exhibited to Mr. McBurney's affidavit of that website and blogspot carrying that name, the latter document carrying links to other of the defendant's postings.
16. In my judgment it is clearly proved that the two postings are the work of the defendant. They have not been removed by him since the making of the orders in breach of those orders.
17. Examples of two postings discovered since the making of the order are a page on the www.lambethchildabuseandcoverupblogspot dated 29th January 2013 still on the website as at 18th February. It is entitled "Law firm threatened Brian Pead who uncovered child abuse and racism in the court". It is identical to a posting complained of in the Part 8 claim form. It plainly emanates from the defendant and I so find and it plainly breaches the terms of the order. A second posting in this category is on the www.allaroundjusticeblogspot.com entitled "Brian Pead makes a statement about child abuse in Lambeth to Essex Police" dated 13th January 2013. It was still on the blogspot as of 18th February 2013 and it too is plainly the work of the defendant and in breach of the terms of the order.
18. The next category of postings complained of are those discovered since the making of the orders not referred to in the pleaded case but said to be evidence of harassment in breach of paragraph 3(a) of the order. The first two are on the www.lambethchildabuseandcoverupblogspot.co.uk. The first is dated 20th January. It accuses Lambeth Council of corruption and contains a link to a posting complained about in the pleaded case. The second is on the same blogspot and it asserts that the third claimant is to be stripped of her OBE. Both these were still on the website as at 18th February. The third is on the website www.allaroundjusticeblogspot.co.uk headed "CRB checks in Lambeth not worth the paper they are written on" and dated 29th January. It accuses the first claimant of having a fundamentally flawed approach to child protection. It contains links to other postings complained of in the pleaded case. The entry at the foot of the page "About me" is plainly a reference to the defendant himself. He, as I find, is therefore responsible for the presence of all three of these pages and is in breach of the order thereby.
19. On the www.lambethchildabuseandcoverupblogspot.com are two entries each dated 2nd February 2013 and each still present on the website as at 18th February. The first accuses a supposed employee of the second claimant of assault and battery and dangerous driving. This would appear to be a reference to the process server who served documents on the defendant on 2nd February. Both are stated to be entries by the defendant himself and are fresh examples of harassment contrary to the terms of the order as I find.
20. Following the hearing on 7th February the defendant on the Lambeth Child Abuse and Cover Up website posted an entry headed "Gagging Order" with a tendentious and inaccurate account of the hearing that had taken place that day describing it as a masquerade for British justice and accusing the second claimants of having an attitude "We don't need to adhere to the official protocols, we will just say he is guilty and everyone will believe us". That page was still present on the website at the 18th February and it is to be found on other websites. It is plainly the work of the defendant as I find.
21. Finally, on the All Around Justice Blogspot on the 15th February under the heading "Rooting out corruption", the fourth claimant is accused of maintaining an unrelenting and irrational pursuit of an innocent man in her investigation of the disciplinary proceedings against the defendant which led to his dismissal.
22. The defendant having, as I say, obtained an adjournment for that express purpose failed to obtain either legal representation or file a witness statement within the time stipulated or at all. Instead, he filed a skeleton argument, as I have said. That, of course, does not have to be supported by a statement of truth and he did so on the afternoon before the hearing and served further documents on the morning of the hearing, none of which were of assistance to the court in the event. But the principal thrust of his submission was that the without notice order of 30th January was made contrary to his rights under Article 6 and was therefore void ab initio. It was all no real order as he put it, having been achieved fraudulently by flawed means. He appears passionately to hold to that belief. I believe that belief has coloured the view which I am sure he does hold, that he is not obliged to obey the terms of orders made against him.
23. I endeavoured at the outset of the hearing to explain to him that the claimants' application proceeded and had to proceed on the basis that the orders not having been appealed against or set aside, had to be obeyed until they were discharged: see Ketley v. Brent [2012] EWCA Civ 324 at paragraph 20. Despite that, Mr. Pead devoted much of the one and a half hours of his oral submissions to me to the support of what he called his proposed application to set aside both orders as an abuse of process. This was a vain exercise. He has never made any properly constituted application to that effect nor has he attempted to appeal the relevant order of 7th February.
24. His response to the allegations of breach set out in the evidence which he had been served with in advance of the hearing was to stress quite rightly that the burden of proving these breaches lies on the applicants which, at the outset I stated I accepted, and that they had to be proved to the criminal standard. Otherwise his attitude to the offending postings that I have set out above was effectively to say that these were all outside his control; he could not be responsible for what other people did, whether they were either people who supported his cause or people who wished to incriminate him by making such postings in order to get him into trouble.
25. He was quite unspecific in his submissions as to exactly what he had done in response to the order. In general terms and without any particulars he stated, "I brought it to the attention of those I know" and he said he could have brought a number of witnesses to that effect. He claimed to have done everything to comply. He went on to say he had at times removed certain posts. When I intervened to ask him to identify any posts he had removed he responded he would deal with that question in his own time in his submissions and return to it, but he never did. He said he had had a long lunch with the printer and distributer of the book and told them he would like them to comply with the order by removing it and they said that would be difficult as it was on 300 websites. Removing a link could leave a link active he claimed.
26. He argued these proceedings ought to have been brought by the Attorney General. pointed out that that related to contempt of court in criminal proceedings. He persisted in maintaining this fallacious view of the law. He argued that the application should have been brought by the court itself and he had not been summoned by the court. He was not aware of the terms of CPR 81 which make it clear that contempt proceedings are triggered by a notice of application by the party wishing to draw breaches to the attention of the court. In effect his overall position was that the case against him had not been proved; that anyone could have made these entries; there was no proof that he had done so or that anyone related to him had.
27. In the short reasons that I gave on 27th March I said, and I enumerated them, that I found that the selected breaches alleged had been proved to the necessary criminal standard and that they had been the responsibility of and committed by the defendant and he was therefore in contempt of court. I considered the consequences which ought to flow from that, the alternative ways of disposing of the matter short of a term of imprisonment, but I concluded that the breaches were sufficiently serious to warrant an immediate custodial return and I sentenced him to 28 days' imprisonment. I said on that occasion that I would give the reasons for my findings today and the matter was put over for that reason.
28. Yesterday the court received a letter from Mr. Pead, still then in prison, which I should read into the record. It was addressed to the Court Manager and it said:

"Re: Civil Contempt of Court

On Wednesday 27 March 2013 I was sentenced to 28 days' prison for civil contempt of court.

In accordance with the Civil Procedure Rules, I am writing to the court to purge my contempt of court.

I unreservedly apologise for any action or lack of action which was deemed by the court to be a contempt.

I wish to purge the contempt of court and can reassure the High Court that I will take all appropriate steps to comply with the orders of Mr. Justice Tugendhat. I will maintain a Log Book of all the steps which I (and others associated with me) take to comply with the orders. I will make the Log Book available to the court.

I cannot, of course, be held responsible for the internet per se and its propensity to maintain links that have been previously severed. I will, however, provide to the court evidence of all communications with internet service providers.

Nor can I reasonably be held responsible for any links or posts which are uploaded in my name or purported to be authored by me but which are not, in fact, connected to me.

In summary, I reiterate the following:

(i) a full apology to the court;

(ii) full compliance with the orders;

(iii) the creation and maintenance of a Log Book which will remain open to inspection by the court;

(iv) no further related posts uploaded to the internet;

(v) all other posts deemed to be offending to be removed.

I believe this letter provides to the court a full and unreserved apology by way of purging the contempt and an assurance that I will comply with the orders of Mr. Justice Tugendhat."

29. This morning Mr. Pead appeared in court and he did so as a free man, the early release provisions permitting his discharge from prison irrespective of any order that this court might or might not have made. I asked him what his position was in respect of his application to purge his contempt. He said (as I noted it) that he did not accept he was responsible for all the breaches alleged but, as he put it, "I do apologise to the court for potentially having committed breaches" and as he put it again in his later courteous submissions to me, "I am willing to accept some of the allegations I posted or others posted but I cannot accept the postings of third parties unknown to me". He thought he had been asked to make decisions about his position on the basis of insufficient information. He was happy to withdraw his application to purge if the court thought that right and then returned to the submissions he had made on the previous occasion when this matter was heard that anybody could cut and paste material from any site. He wanted to know, first, what I felt he was responsible for and, secondly, he wanted the claimants to explain to him how he could prevent third parties cutting and pasting. On that basis he was, as he put it, happy to apologise. But he did not know how to prevent, as he put it, malicious persons using his name.
30. So the position is that the apology which appeared on the face of his letter to be a full apology without any equivocal features turns out to be no such thing in the sense that it is limited, as it would seem, to those breaches which he accepts he was responsible for. In my findings, which I announced in principle on 27th March, I identified the allegations in the McBurney affidavit which I found proved and to be his responsibility and for which I have given my reasons today. They are what the court has found he has committed by way of breach of the orders. The court can go no further than that.
31. There is a sense in which the application to purge today is a highly technical one because it will not, as sometimes is the case, achieve the important factor of the release of the contemnor for prison. Mr. Pead is today a free man and is not subject to the court's order for committal. But I can see that there are advantages presentationally (may I put it that way) from Mr. Pead's point of view should there be any problems hereafter about continuing or repeated breaches involving material of this nature for him to be able to say that he adopted a moderate and sensible position in his approach to the court today.
32. I cannot go beyond saying that there is, in my judgment, something of a change in Mr. Pead's attitude to this litigation and the court's exercise of its powers in response to the applications by the claimants. It is, I regret to say, insufficiently clear as an apology. It is a conditional apology which is not one on which I consider it would be right to declare that the defendant has purged his contempt. I content myself with noting that there is, in my judgment, something of a change in attitude and respect for the orders of the court present today in Mr. Pead's presentation of his position that I did not find present on the last occasion.

Mr. Pead, you, I think would benefit from having a transcript of what I have just said.

THE DEFENDANT: That would be most helpful, my Lord.

MR. JUSTICE MACKAY: You have been trying to take notes and it is not easy.

THE DEFENDANT: No.

MR. JUSTICE MACKAY: So I think on this occasion I will order a transcript at public expense to you of what I have said today.

THE DEFENDANT: I am much obliged to you.

(Discussion followed re order and costs)

MR. JUSTICE MACKAY:

33. I am asked to make costs orders following my ruling in this case covering the three hearings, that is to say: the 14th March when the matter was adjourned at the request of the defendant; the 27th March when I heard the substantive application and gave my decision and identified the breaches that I found proved; and today, when there was an attendance for what might have been a simple purging of contempt but turned out to require the giving of the detailed reasons for my earlier decision.
34. These proceedings for contempt have proved to have been justified. Mr. Pead would like me to reserve the costs until the outcome of any trial. I do not think that would be the right order. They were necessary and justified for the reasons stated in my judgment. It is a self-contained episode in the case. The claimants have proved what they set out to prove and in principle should have an order for costs in their favour.
35. The principles that Mr. Pead relied on in opposition to the making of an order, he quoted from the procedure in criminal courts where contempt in the face of the court sometimes falls to be dealt with and the court is warned not to proceed too quickly, to give time for reflection and opportunity to consider to the contemnor. That is, of course, in a very different context. I think Mr. Pead has had opportunity to consider this matter. He was certainly given it on the 14th March. I do not believe he has taken the opportunity as fully as he could have done.
36. In principle the claimants should have the costs of these hearings. I have not received any submissions from Mr. Pead as to the quantum. As to the amount of each bill there does not seem to me to be any excessive billing such that I should interfere with on a summary assessment. So I do allow the costs of the hearings of the 14th and 27th March in the sum claimed, £21,601.60 and of today in the amount of £2,747.60.
37. I summarily assess those costs and order them to be paid by the defendant to the claimants.

MISS ADDY: Is it wise to put a time limit, my Lord? The usual is 28 days.

MR. JUSTICE MACKAY: Twenty-eight days to pay.

(To the Associate): That is the original of Mr. Pead's letter. Could you attach that to the file? Thank you very much.

I am leaving the original with the file. You have your copy of it. As I say, you will get a copy of the reasons I expressed this morning.

(Clarification of costs and time to pay followed)