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
		19 December 2014

Sir David Eady :

Introduction

1. These committal proceedings arise out of an order made on 9 May 2014 of which it is currently alleged that there have been no less than 40 breaches over the succeeding months. The application notice was issued in July and contained 19 specific instances. At the commencement of the hearing, I allowed an amendment which added a further 26. (Some were not pursued, as explained below.)
2. The First Claimant is the Royal Brompton & Harefield NHS Foundation Trust ("the Trust") and the Second to Fifth Claimants either work or have worked at Harefield Hospital, a hospital owned and operated by the Trust. The Defendant was also employed there as a trainee cardiac physiologist from March 2007 until June 2009, when he was dismissed for gross misconduct.
3. On 3 February 2011, the Independent Safeguarding Authority (whose functions are now carried out by the Disclosure and Barring Service) included the Defendant on the Adults' Barred List and on 6 June 2012 his name was added to the Children's Barred List. Those decisions meant that he was barred from carrying out certain regulated activities with, respectively, vulnerable adults and children. An appeal was rejected by the Upper Tribunal on 31 July 2014.
4. It seems clear that the Defendant resented his experiences at the hospital and also his dismissal. Unfortunately, he began to vent his frustrations by harassing and defaming the Claimants via the internet. Proceedings were therefore issued on 10 and served on 14 March of this year. In due course, judgment was entered in default on 9 May. It was on that occasion also that the injunction was granted in respect of which it is now said that the Defendant has been in breach.
5. In July 2014, His Honour Judge Moloney QC awarded damages to the Claimants for harassment and libel totalling £150,000. That assessment was made pursuant to a direction also given on 9 May.
6. The injunction of 9 May contained the following material provisions:

"2 The Defendant must not (whether by himself or by instructing or encouraging any other person):

(a) Harass any or all of the Second to Fifth Claimants or any of the current or former employees of the First Claimant identified in Schedule B;

(b) Communicate with any or all of the Claimants, whether by telephoning, text message, e-mail, or any other means (other than by letter and/or email addressed to the Claimants' solicitors or by telephoning the Claimants' solicitors);

(c) Submit applications for employment via the NHS website or at all in the name of any or all of the Second to Fifth Claimants and/or any of the current or former employees of the First Claimant identified in Schedule B;

(d) Set up accounts/profiles on LinkedIn and/or Facebook and/or Twitter or any other social media platform in the names of any or all of the Second to Fifth Claimants or any of the current or former employees of the First Claimant identified in Schedule B;

(e) Set up or cause to be set up any email accounts using Hotmail and/or Gmail and/or Facebook and/or any other email provider in the names of any or all of the Second to Fifth Claimants or any of the current or former employees of the First Claimant identified in Schedule B;

(f) Publish or cause to be published the statements and/or images about any or all of the Second to Fifth Claimants contained in the pages and/or websites and/or documents identified in Schedule A, or statements and/or images to similar effect.

3 The Defendant must not publish whether by himself his servants agents or otherwise howsoever the words complained of in this action or any similar words defamatory of the Second to Fifth Claimants."

7. It is accepted that the allegations of breach should be addressed by the court individually and that, in each case, it is for the Claimants to establish to the criminal standard of proof that there has been a contempt for which the Defendant was responsible. The Defendant has chosen not to put any evidence before the court and is under no obligation to do so. It is for the Claimants to prove their case. I need, therefore, to consider the evidence relied upon for each of the allegations. I will adhere to the numbering in the schedule produced by Mr Hudson at the hearing, as did both counsel in the course of their submissions, although it is to be noted that there will be a few gaps in the sequence of numbers, since some of the allegations have been removed for various reasons such as duplication.
8. Mr Hudson concluded his submissions by giving six reasons, of general application, why the court should be satisfied that each of the contempts alleged can be safely attributed to this Defendant:

i) A set of themes on the subject of Harefield Hospital and the individual Claimants, which had the individual stamp of the Defendant upon them, kept reappearing throughout the relevant publications.

ii) There was a close similarity between this later material and the original publications in respect of which judgment had been obtained on 9 May.

iii) Two USB sticks were lawfully seized from the Defendant while he was at West Drayton Police Station following his arrest on 27 July 2011. Mr Jaime Duggan gave evidence (which there is no reason to disbelieve) to the effect that two JPEG picture files (identified as GOLLY.JPEG and JRRR.JPEG) found on those sticks were shown to be an exact match for picture files (similarly named) that were found on two web pages which have already been found by the court to be the responsibility of the Defendant. He was ordered to stop publishing them on 9 May.

iv) Although no evidence has been given by the Defendant denying his responsibility, there has been a suggestion that there may have been some tampering with the sticks by an unidentified third party between the date of their seizure and the examination by Mr Duggan. In the absence of any evidence, however, I see no reason to doubt Mr Duggan's conclusion.

v) Evidence was given by Mr Sean Robbie on the subject of an IP address used by the Defendant to log on to his Hotmail address in February 2014. This was identical to the address used two days earlier when submitting a fake NHS job application in the name of the Fifth Claimant.

vi) Reliance is placed also on evidence given by the Defendant in the Disclosure and Barring proceedings (a transcript of which was exhibited by Mr Harris to his second affidavit). He there said inter alia that he was aware of the order of 9 May, but that he did not regard himself as bound by its terms since he had not been served personally.

Allegation 1: New blog at URL http://harefieldnhs.blogspot.ch

9. All the relevant blogs are addressed primarily in the affidavit evidence of Jeremy Harris. There was also added in the course of the hearing an affidavit from another solicitor in the firm, Emily Nuttall, who was able to confirm which of the material relied upon was still then available on the internet and how much had been removed.
10. The first one was headed The Real Harefield Hospital Cardiology Department and was still live at that point (the evening of 3 December). It is said by Mr Hudson to represent a breach of paragraphs 2(a) and (f) and of paragraph 3 of the 9 May order. It certainly would do so: the only question raised is whether it can be proved to the required standard that the Defendant was responsible for it and, if so, after the date of the order. (I do not intend to repeat the allegations made on the blogs and thereby give them further currency.)
11. Mr Brownhill argues that while the blog may well be defamatory and/or constitute harassment, it cannot be proved to be in contempt; that is to say, no relevant act of the Defendant can be shown to have occurred after 9 May. Mr Harris' evidence in his first affidavit is of a search conducted, first, on 2 and 3 June. Mr Brownhill acknowledges that it may well have been available then. Indeed, each of the blog printouts bears on its face the date on which it was downloaded. But the doubt raised, as I understand it, is that the Defendant (or someone else) may have posted it prior to 9 May and yet not have been able thereafter to bring the continuing publication to an end.
12. This would require me to speculate, without the benefit of any actual evidence to support the proposition that this scenario is other than theoretical. What evidence I have seems to point overwhelmingly towards the Defendant having posted the blog originally (whether before 9 May or not) and, later, having decided to do nothing to comply with the requirements of the order to prevent continuing publication. I am satisfied to the criminal standard.

Allegations 2 and 3: New blogs at http://harefieldnhs.blogspot.co.uk and [as before]. com

13. Ms Nuttall's evidence on these items was that they were no longer live on the evening of 3 December. I cannot say why that was, but it is possible that it was in belated response to the various requests from Kemp Little that they should be removed. The "co.uk" blog (Allegation 2) was headed The REAL Harefield Hospital Cardiology Department. It carried a picture of a Mr Andrew Howlett alongside a sub-heading Corruption at Harefield Hospital. It pursues a recurring theme, not to say obsession, about Mr Howlett. In the light of Mr Harris' evidence, it was clearly available some time before its removal. The ".com" blog (Allegation 3) merely served to redirect any "hits" to the other "co.uk" blog. Again, Mr Brownhill's point about these is that there is some doubt about their timing. Yet, as with Allegation 1, there is no evidence to suggest that the Defendant could not have terminated the publications in response to the 9 May injunction, even if the posts had been made before that date.

Allegations 4 to 6: Facebook pages

14. According to Ms Nuttall, these were no longer on-line when she checked, but the evidence of Mr Harris is that they were inspected on 3 June 2014. Each page shows a posting dated 29 May. They contain links to the blogs complained of and there would be a breach of the injunction, provided that it can be shown that the Defendant was responsible. It is said that these pages should be characterised as part of a campaign of harassment in respect of employees identified in Schedule B to the order.
15. In relation to each of these pages, Mr Brownhill submits that there is no hard evidence to link the Defendant; for example, there is no IP or email address. It is based purely on inference and the supposed modus operandi of the Defendant. He argues that the onus on the Claimants has not been discharged. I have to be realistic. Criminal cases are regularly proved by inference, sometimes overwhelmingly. These Facebook pages do not stand alone. Looking at the evidence as a whole, it seems clear to me that they formed part of a long and sustained campaign. What is more, it would be perverse, in the absence of any evidence, to draw an inference that anyone other than this Defendant is participating in it, and adopting his modus operandi or sharing his various obsessions (which I do not propose to describe explicitly in a public document). The inference as to the Defendant's responsibility can fairly be described, in my view, as overwhelming.

Allegation 7: Another Facebook page

16. Again, this appears to have been set up on 29 May and contains a link to the new blogspot ".com" blog. Mr Harris exhibits a screenshot of the list of pages found. Mr Brownhill's argument here is slightly different. He says that there is simply no evidence in relation to this and that the burden cannot be discharged. There is no evidence as to the page itself, or as to what it had on it, or the period during which it is said to have been on the internet. We know at least that it was gone by 3 December from Ms Nuttall's evidence. It is in my view probable that it formed part of the Defendant's campaign, but the evidence is rather thin and I will give him the benefit of the doubt.

Allegation 8: The Facebook page about "Gollywogs" at Harefield Hospital

17. This was no longer on-line at 3 December but had been seen, according to Mr Harris, on 3 June. It contained a link to the ".com" blog.
18. Mr Brownhill's argument replicates that deployed in relation to Allegations 4 to 6; that is to say, that the Claimants' case depends on inference from the modus operandi. The gollywog reference reflects one of the Defendant's obsessions or continuing themes. It is part of the harassment campaign and it would be fanciful to conclude that anyone but the Defendant was responsible.

Allegation 9: A Facebook page in the name of Andrew Howlett

19. As explained by Mr Harris at paragraph 29 of his first affidavit, he was alerted to the appearance of new online content on or about 2 June 2014. Links to a new blog were posted on a Facebook page established by a charity fundraiser (in connection with a charity football tournament in aid of the Trust's own charity). These links were posted using a Facebook profile in the name of Andrew Howlett, whose solicitors confirmed to Mr Harris that he did not set it up. The links were promptly removed by the administrator of the Facebook page, but this was what led to Mr Harris' further checks being carried out on 2 and 3 June. Mr Howlett is a former employee of the First Claimant who is named in Schedule B and in whom the Defendant appears to have taken a close interest. He is the subject of much of the original online material.
20. There is no screen shot available and Mr Brownhill observed that no one can say they saw it. It thus depends, he says, on hearsay from an unidentified source. His submission is similar to that advanced on Allegation 7, i.e. the standard of proof has not been achieved. Again, I think it likely that the Defendant was responsible but I will give him the benefit of the doubt.

Allegations 10 and 11: Further Facebook posts in the name of Andrew Howlett

21. These are two of the allegations added by way of amendment on 3 December. They both reflect the Defendant's Andrew Howlett theme and his apparent obsession with him. They provide a link to the ".com" blogspot and are clearly in breach of the order of 9 May. Mr Brownhill submits, however, that (as with Allegations 4, 5, 6 and 8) there is no proof of a connection to the Defendant. It is just inference based on his obsessions and established modus operandi. Again, I find the inference overwhelming and am satisfied that it has been proved to the required standard.

Allegation 12: A malicious referral

22. On 16 June a malicious and anonymous report was made via the Fraud and Corruption Reporting Line. The Trust was officially notified on 4 July in an "intelligence report" which Mr Harris exhibited. The false suggestion was made that three cardiologists (including the Fourth Claimant) lacked appropriate qualifications or experience. The Fourth Claimant was referred to as Mushtaq Ali (as opposed to Ken). According to the evidence, the only person known to refer to him as Mushtaq is the Defendant. I accept that is one pointer, but it would probably not be sufficient by itself to discharge the burden of proof.
23. Mr Brownhill described the intelligence report as no more than a piece of paper, which proves nothing. But it has an official status and there is no reason to suppose that it is not genuine or not accurate. The fact that a malicious report has been made, at that time, and by someone describing the Third Claimant as Mushtaq, points very powerfully to the Defendant. It is true that there is no record of who made the call, or of the gender of that person, or who received it, but it is difficult to see who else could be responsible against the background of the campaign and all the other evidence. I agree that this is a breach of paragraph 2(a) of the order and accept that it has been proved to the required standard.

Allegation 13: Twitter posts using "ghbrown5"

24. On or about 22 June 2014, new tweets were made from an account in the name of "ghbrown5", clearly a reference to the Third Claimant. They contained allegations of corruption at the Hospital and references to a Mr Terry White (an employee listed in Schedule B). There were also defamatory allegations about Claimants (other than Mr Brown). They were promptly removed following a complaint. Therefore the only documentary evidence of the tweets is a Vocus daily news alert.
25. Mr Brownhill submits that it is impossible to be sure who sent these tweets and when. He also added that there is no evidence as to Vocus or its status, or as to how the information came into Kemp Little's possession. Mr Harris was asked about the matter in cross-examination, but was able to throw little light. In the circumstances, while I find it quite likely that the Defendant is responsible, I believe that the evidence does not quite reach the criminal standard.

Allegation 14: [Removed for duplication]

Allegation 15: A fake LinkedIn account

26. This time the allegation is that inappropriate messages were sent in September via a fake LinkedIn account in the name of the Third Claimant, and that they amount to breaches of paragraphs 2(a) and 2(d) of the Injunction. The allegation was added by amendment. I am satisfied that this is clearly attributable to the Defendant. It is part of his campaign of harassment. I can see no other explanation.

Allegation 16: Facebook posts containing links to blogspot "co.uk"

27. This allegation was also added by way of amendment. These posts date from 26 September and hark back to one of the Defendant's obsessions, to the effect that the Hospital's employment policy involves having sexual relationships. There is also a suggestive diagram familiar from earlier communications.
28. Mr Brownhill argues that this is based on inference from modus operandi. Here, that seems to me to be very clear evidence and I regard it as proved to the required standard.

Allegation 17: Emails sent from account robbellbellend112@gmail.com

29. This is another of the allegations recently added. Robert Bell is listed in Schedule B to the order and is the chief executive of the First Claimant. On 5 October, according to Mr Harris' fourth affidavit, several people received emails via Facebook. At least two separate emails were sent. Kemp Little know of some eight recipients simply because that is the number of people who have made contact with them. (There may well be many more.) I shall not repeat the content of these messages. They are described at paragraphs 34 to 42 of the affidavit and also exhibited. Suffice to say, they are plainly in breach of the order of 9 May – provided the Defendant's responsibility can be established.
30. Mr Hudson placed particular reliance upon this allegation, as it involves so many pointers to the Defendant's modus operandi. There is no need to list them all. But, by way of example, there is a PDF attachment which is an exact copy of a document disclosed to the Defendant by Kemp Little. (That emerges particularly clearly from a copy exhibited by Mr Duggan: Vol 3, Tab 2, p.137).
31. Mr Brownhill once more raises the argument that there is no direct evidence of any connection with his client: it is based only on inference from the modus operandi and his specific obsessions. Here, however, the link is so clear that I am left in no doubt as to where responsibility lies. They could not have emanated from anyone else. There are breaches of the order at paragraph 2(e) and there is obviously harassment of the Fourth Claimant and of Mr Bell.

Allegation 18: Malicious referral to the Care Quality Commission ("CQC")

32. This allegation dates from early November and therefore also comes in by way of amendment. It was on 4 November that the CQC wrote to Mr Bell to notify him of the referral, which was described as coming from a "whistle blower". It was obviously taken seriously at first and this illustrates the scale of the potential harm that such communications can cause. The allegations included charges of dishonesty, cheating and lack of competence or experience on the part of Hospital staff.
33. Mr Brownhill submits that the evidence is not such as to discharge the burden. He says that we do not know who made the report, to whom it was made or when. The information supplied to the Trust by Susan Walker of the CQC is very detailed and reflects the familiar recurring themes which are readily attributable to the Defendant (including, for example, referring to the Fourth Claimant as "Mushtaq"). Again, therefore, it seems to me that the inference can safely be drawn, in the absence of any evidence raising even the possibility of any other authorship, or of any other person sharing the Defendant's obsessions.

Allegations 19-29, 31-32, 34-37 and 40: YouTube videos

34. Some of these allegations were contained in the original notice of application, but others only came to light (so far as Kemp Little were concerned) thereafter and have been added by amendment (i.e. Nos 23-29, 31-32, 24-37 and 40). Some of the allegations listed have not been pursued (i.e. Nos 30, 33, 38 and 39). Ms Nuttall has confirmed that the remainder were all still live on 3 December. All of them appear to have been viewed since the date of the order (9 May) and they clearly amount to harassment in breach of its terms. Mr Harris' first affidavit addresses Allegations 19-22 (at paragraph 36). His second affidavit deals with Allegation 23 (at paragraphs 49-51) and Allegations 24-29, 31-32, 34-37 and 40 (all at paragraph 52). This evidence in my view establishes that if the Defendant is responsible for these videos being on line, then he would be in breach of the order. They constitute harassment and they provide links to offending blogs.
35. Mr Brownhill's arguments were sub-divided as follows. As to Allegations 19-22, 26-29, 31-32, 34-37 and 40, he says that while the content may amount to defamation or harassment, it is not possible to prove contempt to the required standard. The evidence as a whole demonstrates in my view, however, that this distinctive material must have come from the Defendant. There is no other reasonable explanation. In closing, Mr Brownhill made specific points also in relation to Allegations 23 and 25. He said that they had been disabled and there was no evidence as to when they were available on-line. Ms Nuttall's evidence, however, refutes that in relation to Allegation 23 (see her exhibit at p.84). I will give the Defendant the benefit of the doubt on Allegation 25.

Allegations 41-44: Ongoing publication of blogs listed at Schedule A

36. Mr Harris' first affidavit addresses these allegations at paragraph 40. There is continuing publication of the original online content (all hosted by Wordpress.com), which infringes paragraphs 2(a) and (f) of the 9 May order. They amount to harassment of the various individuals and infringe the restraint on publication contained in paragraph 2(f).
37. Mr Brownhill submits, even though the material may give rise to harassment and/or libel, that it is necessary for the Claimants to prove his client's responsibility for any publication after 9 May in order to establish contempt. That is right. In view, however, of the recurring and familiar themes, it is clearly linked to the Defendant and it seems to me that I can assume that it would be in his power to have the material removed, in order to achieve compliance with the injunction, unless and until there is any evidence to suggest either that he cannot do so for some reason, or that he has tried and failed. There is, of course, no such evidence. I am therefore satisfied of his responsibility for these ongoing breaches to the required standard.

Allegation 45: Recently discovered material at http://harefieldhospital1.blogspot. co.uk

38. There is a good deal of material on this blog which corresponds to the Defendant's familiar themes and allegations. It was only recently discovered, as explained by Mr Harris in his fourth affidavit at paragraph 67. It is claimed on the face of the blog that it was posted on 1 June 2009. Whether this is true or not, it is again reasonable to assume that the defendant could have had it removed in order to comply with the 9 May order unless there is at least some evidence to suggest why this might not be so. In view of the evidence as a whole, as it now stands, I can be satisfied to the criminal standard.

Conclusions

39. For the reasons given above, I have concluded that the Defendant is responsible for the offending publications identified above as Allegations 1, 2, 3, 4, 5, 6, 8, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 26, 27, 28, 29, 31, 32, 34, 35, 36, 37, 40, 41, 42, 43, 44 and 45.
40. It seems clear that these are serious contempts, but I will make no further comment until I have had the opportunity to consider submissions at a later hearing as to what sanctions may be appropriate, and any reports or other relevant evidence.