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
		30 October 2019

Mr Justice Murray :

1. This matter concerns an application dated 10 September 2019 made by the claimant, Mr Kabir Jagwani, against the defendant, Ms Poonam Joshi Alles, for an interim injunction in the following terms:

"restraining the Defendant from further harassment whether by publishing any further defamatory material about the circumstances of the Claimant's marriage to and divorce from his ex-wife or inciting protests or violence against him or members of his family or encouraging her followers to share the article she published in Indian Ladies UK on 6 July 2019 or her subsequent posts. The Claimant also seeks for the operators of any such website on which the Defendant's defamatory statements against the Claimant are posted, to remove these statements."

2. Mr Jagwani has also brought a claim against Ms Alles, issued on 10 September 2019, in which he seeks a permanent injunction in the same terms, a declaration as to the falsity of the material published and/or posted by Ms Alles and aggravated and exemplary damages for defamation and harassment pursuant to section 3 of the Protection from Harassment Act 1997.

Application for adjournment

3. At the beginning of the hearing, I heard an application by the claimant to adjourn the hearing on the basis that the claimant's originally instructed counsel, a specialist in defamation and harassment claims, had a last-minute professional diary clash. Having heard submissions from Mr Gwyn Evans, of counsel, in favour of the adjournment and from Ms Alles, who appeared in person, in opposition to the adjournment, I refused the adjournment on the basis that the reason put forward was not sufficient to counterbalance the fact that the defendant, who was appearing in person, had attended and was prepared to proceed, that I had a duty, in accordance with the overriding objective, to ensure that the matter was dealt with expeditiously and that I perceived there would be no unfairness to the claimant in proceeding.
4. The diary clash appears to have been caused by a mistake of the originally instructed counsel. Mr Evans noted, quite properly, that he is not a specialist in defamation and harassment claims, I had, however, a full hearing bundle, including two detailed witness statements from the claimant with various exhibits, and a written position statement and skeleton submissions prepared by originally instructed counsel. I concluded that Mr Evans was capable of presenting the case on behalf of the claimant as it stood on the papers, as indeed he subsequently did, very clearly, succinctly and professionally. Accordingly, I concluded that the appropriate course, in accordance with the overriding objective, was to refuse the application for an adjournment.

The interim injunction application

5. I then proceeded to hear the claimant's application for an interim injunction. After hearing submissions by Mr Evans and by Ms Alles, followed by a brief reply by Mr Evans, I refused the interim injunction application, giving brief reasons at the hearing and indicating that a written judgment would follow. This is that written judgment.

The parties

6. Mr Jagwani is a secondary school teacher and assistant head teacher at the Cumberland School, a mixed state secondary school at Oban Close, London E13. He has been in the teaching profession for 13 years.
7. Ms Alles, who is also known as Poonam Joshi, is a journalist and a campaigner for women's rights, particularly those of Indian women. She was the proprietor of a volunteer organisation called Indian Ladies in UK CIC, a community interest company (Company no. 10065124) ("ILUK"), which campaigned on behalf of and worked to support first generation migrant Indian women in the United Kingdom as well as in India who fall victim to abuse and exploitation by non-resident Indian ("NRI") men, that is, men of Indian ancestry settled in the West as well as those born to Indian-origin parents. Ms Alles says that ILUK is no longer a going concern, having been dissolved in May 2019. Ms Alles, however, continues to be interested in and to campaign for these issues.

Factual background

8. Some time prior to August 2017 the claimant met Ms Kiran Parwani on a dating app. Ms Parwani is also known as Kiran Liladhar. She is a Singapore national of Indian origin, who lives with her parents in India. After meeting on the dating app, Mr Jagwani and Ms Parwani started talking regularly on the telephone, and the relationship developed from there.
9. On 26 August 2017, Ms Parwani travelled to the UK with her parents. On 30 August 2017, Mr Jagwani and Ms Parwani were married at a civil ceremony in London, with Mr Jagwani's family and Ms Parwani's parents in attendance. Ms Parwani then flew back to India with her parents.
10. In December 2017, Mr Jagwani flew to India, for a wedding ceremony between him and Ms Parwani, which took place there on 29 December 2017. The wedding was followed by a honeymoon in Goa between 1 and 4 January 2018, immediately after which the claimant flew back alone to the UK.
11. Mr Jagwani says that he separated from Ms Parwani, for various reasons, after she failed to take a flight to join the claimant in the UK on 17 March 2018 as planned. He says that:

i) His reasons for separating from Ms Parwani were due to difficulties that had arisen between her family and his family, on various issues, both before and after the wedding, including most prominently where they were going to reside after marriage.

ii) His position was that he could not live separately from his mother, father and uncle, as they all have serious health issues and he and his sister provide care to them and support them financially.

iii) Ms Parwani had insisted that they should have separate accommodation from Mr Jagwani's parents and uncle.

12. Mr Jagwani says that he had arranged for Ms Parwani to have a spousal visa to come to the UK, however after she received her visa their disagreements were such that he concluded their relationship would not progress. He therefore informed her on 1 April 2018 that their marriage was over, and he contacted the Home Office and requested that her visa be cancelled.
13. Mr Jagwani petitioned in England for a divorce from Ms Parwani in or about August 2018. He obtained a decree nisi of divorce in England on 12 June 2019 and a decree absolute of divorce on 4 August 2019.
14. On 11 July 2018 Mr Jagwani received an email from a police officer in Indore in India notifying him that the prior day Ms Parwani had filed a complaint against him there alleging that he had deserted her and alleging that he, his parents and his sister had abused her physically and psychologically. During a conference call he had with an Indian police officer, Sub-Inspector Shukla, Mr Jagwani denied the allegations on behalf of himself, his parents and his sister.
15. On 22 August 2018 Mr Jagwani was informed that Ms Parwani had made a further complaint to the police in Indore that he, together with his parents, had prior to their marriage demanded a dowry from Ms Parwani and her family, which is a criminal offence in India. He denies this allegation.
16. According to Mr Jagwani, Ms Parwani also made allegations that he had caused her financial loss, for example, by insisting that the wedding in India be a large one with numerous guests (roughly 1,500), by accepting gifts from her and in other ways. She has also alleged that Mr Jagwani raped and sexually abused her on their honeymoon in Goa. He refutes all of these allegations and says that there is no evidence to support them.
17. In her response to Mr Jagwani's divorce petition, which she received in September 2018, Ms Parwani stated that she had initiated three cases in India against Mr Jagwani, two of which were also filed against his parents and sister. They relate to the allegations I have briefly summarised and an action for spousal maintenance. These cases were filed by Ms Parwani in June and July 2018.

Procedural history

18. The interim injunction application initially came before Pepperall J on 23 September 2019, but, as Ms Alles had had only informal notice of the hearing and was not present, Pepperall J ordered that the application be adjourned to the first available date after 3 October 2019, to allow for Ms Alles to have formal notice and to attend.
19. At the beginning of the hearing before me, Mr Evans noted that the claimant had not received notice from the court, as required by CPR 10.4, that the defendant had filed an Acknowledgement of Service, although Ms Alles claimed that she had filed one. After enquiries were made, it was confirmed that the court received her Acknowledgement of Service on 11 October 2019.

The evidence

20. In the hearing bundle prepared by the claimant for his interim injunction application, in addition to the claim form and particulars of claim, I had two witness statements prepared by the claimant dated 10 September 2019 and 21 October 2019, together with various exhibits to each witness statement. The hearing bundle also included correspondence between the claimants' solicitors, RVS Solicitors Ltd, and the defendant. I had the opportunity prior to the hearing to read through all of that material, although the exhibits were not all read in detail.
21. On the day prior to the hearing Ms Alles filed a bundle labelled "Defence Packet", which included an unsigned document headed "Draft Defence", which appeared to be a combination of a defence to the claim and a witness statement, together with a range of other documents. The Draft Defence document was unsigned. Accordingly, I had no properly served evidence from the defendant in relation to the interim injunction application.
22. During her submissions in opposition to the interim injunction, Ms Alles attempted to give oral evidence on a number of points, including hearsay evidence based on statements made in India by, among others, Ms Parwani. I reminded her that I was not able to take evidence from her in that way, and that it was necessary to confine her submissions to matters of law and comment on the claimant's evidence.
23. In reaching my decision on the interim injunction application, I have relied only on the evidence provided by the claimant to determine whether the claimant has met the necessary test for the grant of an interim injunction under section 12 of the Human Rights Act 1998 ("the HRA"), which is engaged by the fact that the application affects the defendant's right to freedom of expression under article 10 of the European Convention on Human Rights ("ECHR").

Legal principles governing interim relief in relation to defamation and harassment

24. Section 12 (Freedom of expression) of the HRA reads as follows:

"(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression.

(2) If the person against whom the application for relief is made ('the respondent') is neither present nor represented, no such relief is to be granted unless the court is satisfied—

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.

(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.

(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to—

(a) the extent to which—

(i) the material has, or is about to, become available to the public; or

(ii) it is, or would be, in the public interest for the material to be published;

(b) any relevant privacy code.

(5) In this section—

'court' includes a tribunal; and

'relief' includes any remedy or order (other than in criminal proceedings)."

25. Although I must determine this application only on the claimant's evidence, that does not mean that I have to determine it on the basis that his evidence would be accepted unchallenged by a court hearing the claim. The defendant's time for the filing of her defence had not yet expired as of the hearing date. This is not a summary judgment application. As a matter of common sense, and as Ms Alles has made clear in correspondence with the claimant's solicitors, she will be raising defences of truth and honest opinion, if not other defences, in relation to the statements she has published that the claimant alleges are defamatory. I can only grant an injunction to restrain continued publication of such statements if I consider that the defendant would have no prospect of success in defending those statements: Bonnard v Perryman [1891] 2 Ch 269 (CA), summarised and reaffirmed by the Court of Appeal in Greene v Associated Newspapers Limited [2004] EWCA Civ 1462 at [42]-[66].
26. To the extent that the claimant is seeking an interim injunction to restrain continued or future publication of defamatory statements, I must refuse that part of the application on the basis of the rule in Bonnard v Perryman. I do not consider, having reviewed the claimant's evidence, that a defence by Ms Alles based on truth and/or honest opinion is bound to fail.
27. Accordingly, the real issue to consider on this application, as is clear from the way that the application has been drafted, is whether there is a basis for granting an interim injunction to restrain what the claimant characterises as harassment by publication.
28. The threshold test is not whether there is a serious issue to be tried, as in American Cyanamid v Ethicon [1975] AC 296 (HL), but whether "the court is satisfied that the applicant is likely to establish that publication should not be allowed", as required by section 12(3) of the HRA. This is because the interim injunction application engages the defendant's right under article 10 of the ECHR to freedom of expression.
29. Section 1(1) of the Protection From Harassment Act 1997 ("the PHA") prohibits a person from pursuing:

"… a course of conduct—

(a) which amount to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other."

30. Section 2 of the PHA makes such conduct a criminal offence. Section 3 of the PHA provides the person who is or may be the victim of such conduct with a civil remedy.
31. Section 1(2) of the PHA makes it clear that the test for determining whether a person whose course of conduct is in question "ought to know" that it amounts to or involves harassment of another is whether a reasonable person in possession of the same information would think that the course of conduct amounted to or involved harassment of the other.
32. Section 7(2) of the PHA makes it clear that references to harassing a person include "alarming the person or causing the person distress". The claimant has given clear evidence that he has been alarmed and distressed by publications of the defendant criticising his conduct in relation to his ex-wife, Ms Parwani.
33. Section 7(3) of the PHA makes it clear that a "course of conduct" in relation to a person must involve conduct on at least two occasions in relation to that person. The claimant refers to various publications by the defendant to establish that she has engaged in a course of conduct that amounts to harassment.
34. The word "harassment" is not defined in the PHA, but in Hayes (FC) v Willoughby [2013] UKSC 17 at [1] Lord Sumption said that harassment:

"… is … an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress … ."

35. Lord Nicholls of Birkenhead made it clear in Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34, [2007] 1 AC 224 (HL) that conduct must reach a certain level of seriousness before it amounts to harassment within the scope of section 1 of the PHA. At [30] he said:

"Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."

36. In other words, even conduct with a severe impact on an individual may not constitute harassment if it falls short of this standard.
37. Even in the case of conduct with a severe impact on an individual, section 1(3)(c) of the PHA makes clear that the conduct is not harassment if it was "in the particular circumstances, reasonable".
38. In Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [2002] EMLR 4, which involved repeated offensive publications in a newspaper, at [32]-[35], Lord Phillips MR provided guidance on what must be established to show that such publications are capable of amounting to harassment:

"32. Whether conduct is reasonable will depend upon the circumstances of the particular case. When considering whether the conduct of the press in publishing articles is reasonable for the purposes of the 1997 Act [the PHA], the answer does not turn upon whether opinions expressed in the article are reasonably held. The question must be answered by reference to the right of the press to freedom of expression which has been so emphatically recognised by the jurisprudence both of Strasbourg and this country.

33. Prior to the 1997 Act, the freedom with which the press could publish facts or opinions about individuals was circumscribed by the law of defamation. Protection of reputation is a legitimate reason to restrict freedom of expression. Subject to the law of defamation, the press was entitled to publish an article, or series of articles, about an individual, notwithstanding that it could be foreseen that such conduct was likely to cause distress to the subject of the article.

34. The 1997 Act has not rendered such conduct unlawful. In general, press criticism, even if robust, does not constitute unreasonable conduct and does not fall within the natural meaning of harassment. A pleading, which does no more than allege that the defendant newspaper has published a series of articles that have foreseeably caused distress to an individual, will be susceptible to a strike-out on the ground that it discloses no arguable case of harassment.

35. It is common ground between the parties to this appeal, and properly so, that before press publications are capable of constituting harassment, they must be attended by some exceptional circumstance which justi?es sanctions and the restriction on the freedom of expression that they involve. It is also common ground that such circumstances will be rare."

39. A restriction on freedom of expression may be justified if it conflicts with another fundamental right of an affected person, such as his or her right under article 8 of the ECHR to respect for private and/or family life. The House of Lords provided guidance on how the court approaches the reconciliation of a potential conflict between one person's rights under article 10 of the ECHR and another person's rights under article 8 of the ECHR in Re S (F) (a child) [2004] UKHL 47. At [17] Lord Steyn, among other things, made it clear that neither article has precedence over the other, there needs to be an "intense focus" on the comparative importance of the specific rights being claimed in the individual case, the justifications put forward for interfering with or restricting each right must be taken into account and proportionality test must be applied. Lord Steyn called this "the ultimate balancing test".

The facts relied upon by the claimant to establish harassment

40. It is not necessary to set out all of the facts alleged by the claimant. I will simply attempt to set out sufficient detail to make clear the nature of his case against Ms Alles.
41. Mr Jagwani stated in his first witness statement that Ms Alles contacted him by telephone at about 7:00 pm on 16 September 2018, introducing herself as a journalist and alleging that he had deserted Ms Parwani after raping and abusing her. He said that, during that call, apart from denying the allegations, he was not given the opportunity to put his side of the circumstances in which they had married and subsequently separated.
42. Mr Jagwani said that Ms Alles followed the telephone call with a text message saying that if Mr Jagwani failed to "resolve this amicably", she would stand outside his office and home, protesting for the rights of Ms Parwani. He appended a copy of this text message to his first witness statement. The full message reads as follows:

"Kabir, if you don't resolve this amicably, I will come after you. I will stand outside your office and home. Protest for the rights of Kiran, who has been used and abused by tou [sic] and your family. Those days r gone when Indian women could be dumped and men could walk free. I called up to see if we could talk and I could hear your side. But you clearly are in no mood to shed your ego.")

43. This appears to be the only time that Ms Alles contacted Mr Jagwani directly. Mr Jagwani said in his first witness statement that he reported this contact by Ms Alles to his local police station at Forest Gate. He did not hear anything more from her for another ten months, although, he notes, "it subsequently transpired this was not as a result of any action taken against her by the police".
44. Mr Jagwani stated in his evidence that on 6 July 2019 Ms Alles published an article on the website of the ILUK purporting to give Ms Parwani's account of her marriage to and separation from Mr Jagwani, headed "Indian bride, used, abused and discarded by East London school teacher" ("the July 2019 Article"), containing allegations by Ms Parwani (the principal ones being those that I have already summarised), all of which he considers false and defamatory.
45. Mr Jagwani noted in his evidence that Ms Alles also shared the July 2019 Article on Twitter and Facebook and posted or referred to it on other occasions between 6 July and 14 August 2019.
46. Mr Jagwani complained in his evidence that Ms Alles tagged the July 2019 Article to the Twitter account of the school where he works, and then, when he managed to have the school take down the link to the article, she posted on-line about her outrage that the school was supporting him.
47. Mr Jagwani said in his evidence that Ms Alles had the July 2019 Article republished by the Indian Express, presumably on its website, although he managed to persuade the editor of that newspaper to remove it. He stated that the article had been republished by at least four other websites and shared on at least one other Facebook group (SakhiIndianLadiesUK).
48. Mr Jagwani asserted that Ms Alles made further untrue and defamatory statements beyond those in the article, for example, saying in a social media post on 21 July 2019 that he had "cheated and dumped" Ms Parwani and in a social media post on 26 July 2019, that he was "a coward and a liar" who was "running scared" of Ms Parwani and "spreading lies". He said that on 14 August 2019, Ms Alles posted on social media for the first time regarding Ms Parwani's allegations that he had raped her for three days.
49. Mr Jagwani also asserted in his evidence that Ms Alles was inciting protests and even violence against him. As an example of this he referred to a social media post by Ms Alles on 6 July 2019 in which she included a quote from Margaret Atwood's, The Handmaid's Tale. Mr Jagwani said that this amount to an invitation to women "to come in groups after me". The entire post, which I note does not specifically mention Mr Jagwani, was attached to Mr Jagwani's first witness statement, and reads as follows:

"#JustWaitWeAreComingForYou Here's a quote from The Handmaid's Tale ….

'And here's what we do … We watch them, the Men. We study them, We feed them, we please them.

We can make them strong or weak. We know them that well.

We know their worst nightmares and with a bit of practice that's what we'll become … the NIGHTMARES!

One day when we're ready, we're coming for you … just wait!'

It immediately connected me to the women I work with, who have been dumped by their 'absconding nri men'. Men who think they will never have to pay for their sins … they will never be caught …. To all those men I'd say we are coming for you!!!! #NRINightmare"

50. Mr Jagwani says that as a result of Ms Alles's campaign, he has been taunted by students at his school, who have called him a "woman abuser" and "woman beater" and he has been abused on social media. His health has suffered, and he feels unable to do his job properly at the school. He was signed off work by his General Practitioner until October 2019 and not able to start his new role as assistant head teacher. Attached to his first witness statements were letters dated 23 and 29 August 2019, respectively, from his GP and from a Community Psychiatric Nurse working in the Assessment & Brief Treatment Team at East London NHS Foundation Trust. His GP's letter stated that he was suffering from a "severe reactive depression". The CPN's letter stated that he was suffering from "a moderate episode of anxiety with paranoid features". The CPN also noted that he "currently feels very unsafe at home and in his community".
51. In his witness statement dated 21 October 2019, Mr Jagwani gives further instances of Ms Alles republishing the July 2019 Article on-line in September and October of this year.

Discussion and conclusion

52. I do not doubt that Mr Jagwani has been distressed by the July 2019 Article, including the various instances of its re-publication and by adverse comments made in social media posts about him and/or his conduct by various individuals who have seen the article. I accept, for present purposes, his evidence as to the toll that these matters have taken on his physical and mental health. I am not, however, satisfied that the conduct he describes reaches the level of seriousness referred to by Lord Nicholls of Birkenhead in Majrowski at [30], such that the conduct would be "of an order which would sustain criminal liability under section 2 [of the PHA]".
53. In my view, the conduct of Ms Alles about which he complains does not even come close to that line. On his own evidence, she has contacted him only once directly by telephone and she has sent him one text message (the text of which I set out at [42] above), so his case is that the harassment he has suffered is harassment by publication of what he says are false and defamatory statements, through the original publication of the July 2019 Article and its re-publication on various websites, as well as comments made by Ms Alles in various social media posts.
54. In my view, having regard to the guidance of Lord Phillips MR in Thomas at [32]-[35], I cannot conclude, on an application for interim injunction, that the July 2019 Article and Ms Alles's related social media comments are "attended by some exceptional circumstance which justifies sanctions and the restriction on the freedom of expression that they involve". Mr Jagwani strenuously denies the allegations, but that is not sufficient to justify restricting Ms Alles's right of freedom of expression by way of interim injunction.
55. In his first witness statement, Mr Jagwani relies on an email dated 18 March 2018 (the day after Ms Parwani had been due to fly from Mumbai to London to join him) from Ms Parwani to him, which is headed "Kabir I Love You", in which she makes several repeated statements of her love for him, in which she refers to "every single moment with you was so wonderful and special" when they were together in Goa and in which there is no suggestion that there was any form of abuse by Mr Jagwani of Ms Parwani, much less rape or other sexual abuse.
56. It is clear from this email that Ms Parwani is begging Mr Jagwani to retract his decision to separate from her. She sent the email after returning home from Mumbai, where she had been the prior day in order to take a flight to London. The following extract gives a sense of the message:

"…

Kabir I called you from my main phone a few times before leaving [home the prior day] but there was no reply. Attached is the screenshot. Kabir I love you. I respect you. I respect your parents. I trust you and that is why I married you and we are together. I love you Kabir. Kabir you always keep saying I am stubborn. If I was would I have said yes for coming and staying with your parents.

Yes I took 2 days because from the time you were going you said that you will be looking for a house.

And all of a sudden you changed your mind that you want to stay with your parents. Which I said I need time. I took 1 day and discussed with honey [sic] that yes I will stay with you in your parents house with you supporting me.

Kabir for us marriage is a big thing. And remember once you said that if you marry you will never think of a separation. Kabir don't you want to start a new life with me. We have not even spent time with each other together. Goa was a holiday, that too only for 3 days. We have to start a new life together. We are married.

Your parents don't like me. You also know that. I don't know why you say I am stubborn. If so would I never say yes to stay with your parents.

…"

57. Given the purpose of this message, it is not surprising that Ms Parwani does not mention any abuse, sexual or otherwise, even if those allegations are true. It was sent only a day after she discovered that Mr Jagwani wished to separate from her and end their marriage. That is not evidence that clearly establishes that Ms Parwani's allegations, reported by Ms Alles and clearly believed by her, are false. That can only be properly tested at trial. I cannot rely on that email to justify granting Mr Jagwani's application for an interim injunction.
58. As to the post made by Ms Alles in which she quotes from The Handmaid's Tale, I do not consider that it can be viewed as a serious incitement to violence against Mr Jagwani, given that it does not mention him and viewing it with common sense and in context. It is deliberately heightened speech, in my view, intended to have a rhetorical effect, but nothing more.
59. Accordingly, I conclude that I am not satisfied that Mr Jagwani is likely to establish at trial that continued publication of the July 2019 Article or related comments by Ms Alles should not be allowed, as required by section 12(3) of the HRA. He may succeed, if this proceeds to trial, but his evidence falls short, in my view, of showing that he is likely to succeed.
60. For those reasons, I refuse Mr Jagwani's application for an interim injunction against Ms Alles on the terms sought.