Neutral Citation: [2016] IEHC 329
THE HIGH COURT
[2016 No. 3211 P]
BETWEEN
WILLIAM JONES
PLAINTIFF
DEFENDANT
JUDGMENT of Ms. Justice Costello delivered on 14th day of June, 2016
Introduction
1. The plaintiff is a former employee of Coolmore Stud, the defendant. The defendant is one of the largest commercial thoroughbred breeding and racing operations in the world and has a wide range of operations in Ireland, the United States and Australia. Its principal place of operations is from a stud farm in Co. Tipperary. Subsequent to the termination of his employment, which I shall explain more fully below, the plaintiff wrote and published a book about the operations and business of the defendant entitled “The Black Horse Inside Coolmore”(“the book”). These proceedings relate to the plaintiff’s book.
2. The plaintiff seeks four injunctions against the defendant as follows:-
“(i) Preventing the defendant and/or its representatives from threatening any bookshops or websites with legal action for defamation relating to the book, ‘The Black Horse Inside Coolmore’;
(ii) Compelling the defendant and its representatives to immediately withdraw in writing all threats of legal action previously made to bookshops and Amazon in relation to ‘The Black Horse Inside Coolmore’;
(iii) Declaring that ‘The Black Horse Inside Coolmore’ is not defamatory on the face of it and may be sold in outlets where books are sold; and
(iv) Instructing the defendant to provide the plaintiff in this action all evidence without exception relating to their claim that ‘The Black Horse Inside Coolmore’ is defamatory and if they refuse to do so they will pay the plaintiff’s costs unless the court decides the refusal is reasonable”.
3. The plaintiff commenced the proceedings by way of plenary summons issued on 13th April, 2016, and by an ex parte motion docket dated 8th April, 2016, he sought reliefs in precisely the same terms as the general indorsement of claim. No interim relief was granted but instead the matter has proceeded before me as an application for interlocutory injunctions as set out above.
4. The plaintiff was an employee of the defendant for nine years. In 2014 he brought a claim arising from his employment before the Labour Relations Commission. The claim was compromised, with the assistance of a Rights Commissioner, and the agreement was reduced to writing on 12th December, 2014. The agreement provides as follows:-
“1. It is agreed the claimant will retire on Friday 16 January ’15 as per his normal retirement date and all staff of the respondent will be informed accordingly.…
3. The claimant accepts he was provided with the opportunity to get professional advice prior to signing this agreement but he declined this offer and that he was happy to sign this as written.
4. The claimant accepts he has no further claim against the respondent under any other relevant employment legislation (including, but not limited to, Unfair Dismissals, Employment Equality and Protected Disclosures Acts), Personal Injuries or common law whatsoever.
5. He withdraws his claim r 147483-ir-14 which is before the Rights Commissioner.…
7. This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law. Confidentiality is an essential term of this agreement on both parties.
8. It is a term of this agreement that no records relating to animals or clients will be disclosed by claimant.
9. Both parties agree they will not make any derogatory comments about each other at any time in the future.…
12. The respondent will pay to the claimant the sum of €30,000 (net) as a gesture of appreciation (which shall be inclusive of redundancy) and no further sums are due to the claimant.”
5. The agreement was signed by both the plaintiff and Mr. David Gleeson on behalf of the defendant. The agreement has been performed by both parties: the plaintiff has vacated the property where he resided upon his retirement and has surrendered keys, equipment, and other property to the defendant. The plaintiff has withdrawn his claim before the Rights Commissioner. The defendant has paid the plaintiff €30,000.00.
6. On 23rd November, 2015, the plaintiff published the book. Prior to its publication by letter dated 8th June, 2015, the defendant’s solicitors, Arthur Cox, reminded him of his contractual obligations, in particular clauses 7, 8 and 9 of the agreement of 12th December, 2014. The plaintiff replied by e-mail dated 8th June 2015. He stated:-
“In writing my book I have already received barrister’s advice about what I can and can’t refer to and I have, accordingly, complied with the terms of the Agreement.”
7. On 29th July, 2015, Arthur Cox wrote asking if he would send them a copy of the manuscript of his book so that their client could satisfy itself that no breach of the agreement would arise by reason of the publication of the book. The plaintiff responded by e-mail dated 30th July, 2015, stating that he was under no obligation to show Arthur Cox a copy of the manuscript before the book went on sale. In reply, by letter dated 13th August, 2015, Arthur Cox stated:-
“We did not suggest that you were under any obligation to share your manuscript. Our client is however seeking assurance that its contents uphold and abide by the confidentiality agreement signed by both parties, and to ensure the privacy and confidentiality of clients and staff is upheld, and also that it does not contain any defamatory material. …
Please note that our client is committed to and has upheld its responsibilities under the confidentiality agreement.
Furthermore, after the lengthy exchange of correspondence and allegations made by you prior to your retirement, there are reasonable grounds for serious concern that individuals connected to and employees of Coolmore Stud may be defamed by your book.
We would be grateful if you could notify us of the distributors / sales outlets you intend for the publication of your book. We consider that it is reasonable and fair for them to be made aware of their liability in law if any defamatory material is contained in the publication, and it will advise them of same accordingly.”
8. The plaintiff replied by e-mail dated 14th August, 2015, stating:-
“I refer to your email dated 13 August 2015. I have previously stated my position and I believe your email is an attempt to harass and intimidate me. I have considered your reference to a liability in law for anyone connected with my book and your misplaced belief that you should be able to advise them accordingly. It will not be for you or your clients to decide if I defame anyone either now or in the future and whether connected to Coolmore Stud or a completely separate situation. It would be decided by an Irish court [sic].
I take this opportunity to remind you of point 7 of the agreement between your clients and myself dated 12 December 2014. ‘This agreement is strictly private and confidential to the parties involved except where called upon by the statutory bodies or by law.’ I am not impressed at all by your intimidation tactics. I will be more than happy to argue the toss with you in open court if that is what you want. It would be great publicity for my book. I also point out that I have an investigative journalist with RTE now shadowing my story, so please don’t think I am on my own.”
9. Arthur Cox wrote again on 19th August, 2015, reminding the plaintiff that the relevant terms of the agreement were not limited to clause 7 but also they would be relying upon clauses 8 and 9. The plaintiff replied by e-mail of 21st August, 2015, complaining that they were trying to harass and intimidate him and that they had already received his answer.
10. The defendant’s solicitors corresponded with Amazon EU Sarl, UK Branch, in advance of the publication of the book. The letter of the 19th August, 2015, was addressed to Amazon UK Services Ltd., Legal Department, and was headed “Re: NOTICE OF DEFAMATORY CONTENT ‘The Black Horse Inside Coolmore’ by William Jones”. The letter stated:-
“Our client is concerned that the Book could contain material which could be defamatory of our client and/or its customers, owners and staff. This letter therefore constitutes a Notice of Defamatory Content under your Conditions of Use and Sale.”
The letter outlined the concerns of the defendant in relation to the book and the potential reputational damage and damage to relationships of confidentiality with their clients which could arise from the publication of the book. The letter went on to state:-
“Having regard to all of the foregoing, we are seeking confirmation from you that Amazon will not distribute the Book until:
1. Mr Jones sends the Book to us for review on behalf of our client; and
2. our client is satisfied that Mr. Jones has not breached his obligations of confidentiality to our client and that the Book does not contain any defamatory material.
In this regard, we undertake on our client’s behalf that our review will be completed within 14 days of receipt of the Book. Please note that our client does not wish to prohibit the distribution of the Book outright, however it does wish to protect its rights and reputation, as well as those of its client.”
11. Amazon replied by letter dated 25th August, 2015, indicating that while it understood the defendant’s concerns it would be merely one of many potential retailers of the book and accordingly it suggested that the proper remedy lay with the author and/or publisher of the book.
12. Thus, prior to the publication of the book the defendant had made clear to the plaintiff that:
i. It was intending to rely upon the terms of the agreement of 12th December, 2014, and in particular clauses 7, 8 and 9 of the agreement.
ii. If the book contained any defamatory material it would make distributors and sales outlets aware of their potential liability in law arising from the distribution by them of defamatory material.
iii. It was not seeking to prohibit the distribution of the book outright, but it was prepared to protect its rights and the reputation of the defendant, its clients, employees, and persons associated with the defendant in reliance both upon the agreement and the law of defamation.
In addition, it is to be noted that the plaintiff stated that he had taken legal advice with regard to the contents of his book.
13. On 23rd November, 2015, the plaintiff published the book. It is the defendant’s case that in publishing the book the plaintiff is in breach of the agreement of 12th December, 2014. The book breaches the undertaking as to confidentiality, it discloses records relating to animals or clients of the defendant and it is replete with derogatory comments about the defendant. In addition they complain that the book contains material which is defamatory both of the defendant and other parties and contains material which infringes the copyright of a number of third parties. The plaintiff denies all of these allegations as I shall discuss more fully below.
14. However, the defendant elected not to sue the plaintiff, the author of the book, or his company, Gold Rush Publications Ltd., the publisher of the book. Instead it wrote to various distributors of the book, advising them of the fact that the book contained material which breached the defendant’s legal rights and which was defamatory. On 26th November, 2015, Arthur Cox wrote to Amazon, stating:-
15. This letter was followed up the following day by a further letter sent by email on 27th November, 2015, which stated, inter alia:-
“We have also spoken directly with customer service of Amazon today in order to emphasise the necessity that this issue is dealt with as a matter of urgency and have been informed that your legal department has been contacted to notify them that this is a matter to be dealt with as a matter of priority. Our client is extremely concerned that the [book] remains listed for sale through your website despite the fact that you have been on notice of its defamatory content since yesterday and were put on prior notice since 19 August 2015. We also confirm that the Irish book stores and online retailers that we are aware of that were stocking the book have on being contacted by ourselves on behalf of our client confirmed that they have removed it from sale immediately.”
The letter drew the reader’s attention to seven matters which the solicitors stated were false and seriously damaging to the defendant’s reputation and its relationship with its clients, breaches of copyrights and disclosure of commercially sensitive information and straightforward factual inaccuracies. The letter continued:
“This list is not exhaustive but there have clearly been a serious [sic] breach of our client’s rights which we are pursuing on its behalf directly with Mr. Jones.… You are also on notice that given the steps that we are taking on behalf of our client to notify any book stores that are selling this publication that Amazon may be the only retailer selling the [book].”
16. The defendant’s solicitors wrote to independent retailers in similar terms stating that the defendant considered that the book contained material which was defamatory of it and/or its customers, owners and staff, stating:
“We are hereby putting you on notice of the defamatory content of this publication. Our client also believes that the Book is a breach of confidentiality obligations owed by Mr. Jones to our client and breaches other legal rights including intellectual property rights and privacy rights.”
The letter went on to describe the business of the defendant and the relationship between the defendant and the plaintiff, and went on:-
17. Four such letters addressed to four different retailers dated 30th November, 2015, 11th January, 2016, 2nd February, 2016, and 11th March, 2016, were exhibited. The response of Amazon and each of the booksellers was to withdraw the book from sale.
18. The defendant’s solicitors wrote to the plaintiff on 26th November, 2015, stating that the following issues arose:-
“1. The book is defamatory of our client, its employees and individuals associated with our client and the defamatory content is such as may cause enormous reputational damage and a breach of our client’s relationship of confidentiality with its clients. This arises despite the assurances provided by you in previous communications that it would not contain defamatory material.
2. There is clearly a breach of the agreement dated 12 December 2014 between you and our client and in particular, clauses 7, 8 and 9 therein.
3. There is a breach of other rights of our clients, its employees and individuals associated with our client, including a breach of their right to privacy by the publication of personal details in relation to certain individuals and the reproduction of photographs without their permission or consent.”
The letter called upon the plaintiff immediately to cease distributing and selling the book and to recover any copies that had already been distributed and reserved the rights of the defendant to take such legal action as it considered necessary in order to protect and vindicate its reputation and the reputation of its employees and individuals associated with the defendant.
19. In response, on 27th November, 2015, the plaintiff complained that the letter gave him no specific details of what the complaint was about and asked the defendant’s solicitors to provide those details. The e-mail continued:-
20. The defendant’s solicitors responded by letter dated 4th December, 2015, stating that the book contained content which was seriously defamatory of the defendant and which was inaccurate and untrue. It also stated:-
“A further issue which you consistently chose to ignore in your communications with this firm, is that the contents of this book are also in breach of the agreement which you reached with our client on 12 December 2014….
You are clearly in breach of these obligations owed to our client. Your book also infringes other rights including intellectual property rights and privacy rights of our client, its employees and persons associated with our client by the publication of photographs and personal information without permission or consent.”
The letter set out the seven matters that were set out in the letter to Amazon in relation to allegations which were said to be false and seriously damaging and which amounted to a breach of copyright or breach of confidentiality obligations or were simply inaccurate. The letter explained why the defendant’s solicitors had written to the retailers of the book in the following terms:-
“We are entitled on behalf of our client to draw to the attention of any third party who may be involved in the distribution or sale of this book, the fact that this book contains defamatory content, which is untrue, breaches your obligations of confidentiality to our client and also infringes other rights of our client, its employees and other person [sic] associated with our client. Once those parties are on notice of this content, they have a potential liability to our client if they decide to continue selling the book. That liability is independent of any liability that you may have to our client in respect of being the author and publisher of the book. That is a matter between ourselves and the book sellers and our client has no intention of changing that position.”
21. It is clear therefore that the plaintiff had been plainly informed of the defendant’s position and of its justification for the manner in which it chose to deal with this book. The plaintiff does not accept that the defendant is entitled to act as it has done and continues to act. The plaintiff is of the view that his book is not defamatory because he says he can prove the truth of the contents of the book. He objects to the fact that the defendant would not sue him for defamation but instead instructed its solicitors to write to the various booksellers stating that the book contained defamatory material and, as he saw it, threatening them so that they were bullied into withdrawing the book from sale. He said that they were wrong to threaten the bookshops and that they should have gone to court and sued him. Furthermore, they had failed to specify fully what they say was defamatory. He therefore instituted these proceedings seeking the relief I have set out above. Initially he sought it on an ex parte basis but the matter has proceeded before this Court on an interlocutory basis.
The Law
22. Since Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 the test for the grant of a prohibitory interlocutory injunction has been that the applicant must establish:
However, where a party seeks a mandatory injunction the Supreme Court held in Maha Lingham v. Health Service Executive [2006] 17 E.L.R. 137 that the moving party must establish that he has a strong case in order to obtain a mandatory injunction. In Bank of Ireland & Anor. v. O’Donnell [2015] IECA 73, at para. 105 of the judgment, the Court of Appeal held that where:-
“the substance of respondents application for the interlocutory relief sought was mandatory it required to be considered in accordance with what has been referred to a variation of the ‘pure’ Campus Oil test where the courts have required the plaintiff not just to establish a fair or arguable case but rather the higher standard of a strong case in accordance with the Supreme Court judgment of Fennelly J in Maha Lingam.”
23. The first relief sought by the plaintiff is a prohibitory interlocutory injunction. The second and fourth reliefs in substance are mandatory injunctions in that they seek to compel the defendant to do something. I am thus satisfied that in respect of the first relief, the appropriate threshold to apply is the Campus Oil test of whether the plaintiff has established that he has a fair or arguable case. In respect of the latter two reliefs, he must establish that he has a strong case. It is not open to the court to grant a declaration at an interlocutory stage and the plaintiff has not advanced any basis for such relief at this stage in the proceedings.
Has the plaintiff established an arguable case?
24. The plaintiff alleges that the writing of letters to booksellers by the defendant’s solicitors is wrongful on a number of grounds. Firstly, he says it is incorrect to state that the book is defamatory as the book cannot be defamatory unless and until a court of law holds that it is defamatory. Secondly, he has a good defence to the allegation that the book is defamatory as he is in a position to establish that the book is true and therefore it cannot be defamatory. Thirdly, he says that the defendant ought to sue him in defamation rather than threaten booksellers. Fourthly he says the defendant should give details of what the defendant says is defamatory in the book. None of these arguments establishes an arguable case.
25. Even if a party has a cause of action against another party, there is no obligation on that party to sue. Therefore, the fact that the defendant has chosen not to institute defamatory proceedings against the plaintiff cannot constitute a wrongful act on the part of the defendant giving rise to a cause of action by the plaintiff against the defendant.
26. The defendant has written to third parties complaining about the book on various grounds as set out above. These letters were not improper letters to write. Still less, do they establish an arguable cause of action against the defendant. If a party has been defamed, it is appropriate to write a letter asserting that the publication was defamatory and calling upon the publisher of the defamatory material to withdraw the publication before instituting proceedings. Inevitably such a letter would have to assert defamation prior to the fact of defamation being established at trial. It simply cannot be correct that a party cannot protect his rights by asserting that he has been defamed and calling upon a party to remedy the alleged wrong on the grounds that a court has yet to hold whether or not the material is defamatory of the plaintiff. The argument is circular and means that a party defamed can never seek a retraction or apology prior to succeeding at trial. This is clearly not so.
27. The right to send such a letter is inherent in the right of access to the courts. Furthermore, it is implicit in the Defamation Act 2009. Section 27 affords a defence of innocent publication. It provides as follows:-
“27.— (1) It shall be a defence (to be known as the ‘defence of innocent publication’) to a defamation action for the defendant to prove that—
(a) he or she was not the author, editor or publisher of the statement to which the action relates,
(b) he or she took reasonable care in relation to its publication, and
(c) he or she did not know, and had no reason to believe, that what he or she did caused or contributed to the publication of a statement that would give rise to a cause of action in defamation.
(2) A person shall not, for the purposes of this section, be considered to be the author, editor or publisher of a statement if—
(a) in relation to printed material containing the statement, he or she was responsible for the printing, production, distribution or selling only of the printed material,
(b) in relation to a film or sound recording containing the statement, he or she was responsible for the processing, copying, distribution, exhibition or selling only of the film or sound recording,
(c) in relation to any electronic medium on which the statement is recorded or stored, he or she was responsible for the processing, copying, distribution or selling only of the electronic medium or was responsible for the operation or provision only of any equipment, system or service by means of which the statement would be capable of being retrieved, copied, distributed or made available.
(3) The court shall, for the purposes of determining whether a person took reasonable care, or had reason to believe that what he or she did caused or contributed to the publication of a defamatory statement, have regard to—
(a) the extent of the person’s responsibility for the content of the statement or the decision to publish it,
(b) the nature or circumstances of the publication, and
(c) the previous conduct or character of the person.”
28. The seller of defamatory material is potentially liable to a defamed person for publishing defamatory material separately from the liability of the author of the defamatory material. Section 27 of the Act was inserted to afford a defence to a person, such as a retailer, who did not know and had no reason to believe that what he did caused or contributed to the publication of the impugned statement. It is inherent in this section that the person claiming to be defamed may notify any such third party publisher of his belief that the statement is defamatory of them. It is then a matter for the third party publisher to make his or her own assessment as to whether or not to publish the statement. This means that the person alleged to be defamed may be protected against further unwitting- and unintentional- publication of defamatory material on the one hand, and that publishers of potentially defamatory material are given a fair opportunity either to withdraw or cease the publication concerned, or to proceed, but in the knowledge that the defence of innocent publication may no longer be available to them. I do not accept that it was wrong, much less an actionable wrong, for the defendant to instruct its solicitors to write in the terms of the letters quoted above to the retailers of the plaintiff’s book.
29. The plaintiff says that he can prove the truth of the contents of the book and accordingly the letters in dispute are wrong and the defendant’s solicitors had no right to send the letters on behalf of the defendant. The fact that a party may have a full defence to a letter threatening proceedings does not mean that the writing of such a letter itself ,whether to the party concerned or a third party, gives rise to a cause of action. It is possible that a letter written without any justification, mala fide and with a view to causing damage to another party rather than a bona fide defence of the rights of the letter writer, could give rise to a cause of action but that is very far from the case here. The evidence establishes that the defendant has at all times been anxious to rely upon the agreement of 12th December, 2014, and to defend itself, its staff and persons associated with it from defamation. This is entirely legitimate and in the circumstances the writing of the letters in question does not give rise to a cause of action by the plaintiff against the defendant.
30. Finally, it is not necessary to set out in such a letter the entire case in defamation as it will be pleaded if the matter goes to court. Therefore the plaintiff’s complaint that the defendant has not detailed every matter which it says is defamatory cannot give rise to a cause of action by him against them.
31. The matter might well be different if the publisher of material said to be defamatory was genuinely anxious to remove offending material from a publication so that the work could be published without defaming anyone. That is not the case here. The plaintiff’s correspondence with the defendant’s solicitors and his submissions to court shows that he does not admit that any of the contents of the book is defamatory and he will, if necessary, seek to prove the truth of everything he has said in the book. As the plaintiff does not wish to engage with the defendant to try to agree what he may or may not publish, the request for particulars, for such in effect it is, is not made with a view to resolving the dispute between the parties. It follows that no useful purpose would be served by the defendant detailing each and every item which they allege ought not to be published on the grounds that it is defamatory. In any event, this argument also overlooks the fact that the defendant says that the plaintiff is not entitled to publish the book on the grounds that it breaches the terms of the agreement of 12th December, 2014.
32. In summary, the plaintiff has not established that he has an arguable cause of action against the defendant and on that basis he is not entitled to an interlocutory injunction against the defendant. As I have held that the plaintiff has not established an arguable case and therefore is not entitled to the first relief he seeks, it follows that he also has failed to establish that he has a strong case for relief as required by Maha Lingham and therefore he is not entitled to reliefs 2 and 4 of his notice of motion on this basis also.
Are damages an adequate remedy?
33. It is well established law that a plaintiff will be refused an interlocutory injunction if, were he to succeed at full trial, the financial loss suffered by him between the date of the refusal of the interlocutory relief sought and the date of judgment would be quantifiable in money terms. It is clear that this is the case in respect of the plaintiff’s claim. In his e-mail of 7th December, 2015, he stated that he would hold the defendant “responsible for any lost sales of my book from the date the book was withdrawn from any shop or website and I will be taking legal action for damages as a result.” He concluded by stating that if the defendant did not retract its communications with bookshops and websites he would “pursue a claim for damages for any losses and costs I incur as a result.” He followed with a further letter on 4th January, 2016, stating that he would make “a substantial claim for damages as a result of [the defendant’s] actions”. Quite apart from the fact that this correspondence suggests that the plaintiff himself believes that the damage he may suffer will be measured by loss of sales of the book and therefore is quantifiable, in a letter of 11th March, 2016, written to the defendant’s solicitor, the plaintiff stated that he had “now all but sold out of the first edition of [his] book”, so the substance of his claim is open to question.
34. The nearest he comes to making a claim that his losses do not sound in damages is to be found in para. 15 of his affidavit when he stated that as a result of an article appearing in the Sunday Times on 3rd April, 2016, he had an opportunity of a deal with “the largest book wholesaler in the UK to have my book distributed anywhere in the world.” He gave no detail in respect of this possible deal other than to say that he would be unable to secure the deal “with the threats made by the Defendant’s solicitors hanging over bookshops and websites.”
35. While I acknowledge that the plaintiff is representing himself, nonetheless I may only act upon the evidence put before me. The plaintiff has had a number of weeks in which to present his case and in which to reply to the affidavits filed on behalf of the defendant in opposition to his application. There is no evidence before the court which would justify me in concluding that damages would not fully satisfy the plaintiff’s claim were he to succeed at the trial of the action. Accordingly, on this ground also his claim to relief must be refused.
Equitable relief
36. Injunctive relief is equitable relief and a court will not grant equitable relief where the party seeking the relief has himself behaved in an inequitable fashion. In this case the defendant’s primary objection is that the plaintiff has acted in breach of the agreement of 12th December, 2014, in publishing the book. It submits that the plaintiff is not entitled to equitable relief which has as its object and effect the protection of breaches of negative covenants binding upon him. Mr. David Gleeson swore the principal affidavit on behalf of the Defendant. At para. 6 he avers:-
“The Book contains multiple references to records relating to animals or clients of Coolmore and contains numerous derogatory comments about Coolmore, its employees and persons associated with Coolmore.”
37. In para. 10 of his affidavit he quotes comments which are derogatory of Coolmore, its employees and persons associated with Coolmore at pp. 70, 113, 121, 123, 137, 147, 148 and 270 of the book. He states that these are illustrative but not exhaustive. Having read these comments, I am in no doubt that they are derogatory of the defendant and persons associated with it and prima facie constitute breaches of the agreement.
38. At para. 9 of his affidavit Mr. Gleeson gives two examples from the book of material relating to animals and clients of the defendant which he says was published in breach of the agreement. Pages 89 - 90 of the book discloses information regarding an operation carried out on the stallion Galileo, information regarding Galileo’s daily routine, his foals and the defendant’s breeding practices. At p. 116 the book discloses information regarding certain clients of the defendant who entered into a foal sharing deal with the defendant in relation to the stallion Sadler’s Wells.
39. In answer to the allegation that the publication of the book constituted a breach of the agreement of 12th December, 2014, quite apart from any issue of defamation, the plaintiff asserted that he was not bound by the terms of the agreement as the agreement had been procured by duress. This cannot provide an answer to the clear express terms of the agreement. In the first place, the plaintiff has received benefit under the agreement. He cannot now ignore it and he has not sought to set it aside. Accordingly he remains bound by it. Secondly, in correspondence with the defendant’s solicitors he himself purported to rely upon the agreement and made no assertion that the agreement was void for duress until 7th December, 2015, one year later. Thirdly, he has given no sworn testimony to this Court to support the assertion that the agreement was procured by duress. The sole reference to duress is in the letter of 7th December, 2015. On the other hand he confirmed in oral submissions what is recorded in the agreement: that he had the opportunity to obtain legal advice at the time and declined to accept it.
40. In addition the plaintiff submitted that he was entitled to refer to information that was in the public domain despite the terms of the agreement of 12th December, 2014. It is no answer to the obligations set out in clause 8 to state that the information in respect of world renowned horses is already in the public domain. The use of the material is in breach of this agreement regardless of the fact that the information may or may not be readily available to other persons.
41. As things stand I must proceed on the basis that there is an existing valid agreement and quite clearly the actions of the plaintiff in publishing this book amount to grave breaches of that agreement.
42. The defendant also adduced evidence that the book breaches the copyright of four individuals who have sworn affidavits in support of the defendant in these proceedings. The affidavits establish that there was considerable plagiarism of the book “Northern Dancer: the Legend and His legacy” by Ms. Muriel Lennox. The plaintiff was aware of the fact that he was required to obtain her permission prior to using her material as he submitted that he had contacted her and asked for her permission to use the material but had received no reply. It would appear that he did not attempt to contact the other three individuals who have shown in their affidavits that their writings in respect of which they asserted copyright were copied verbatim or virtually verbatim by the plaintiff in his book. The plaintiff has not produced any evidence controverting this evidence.
43. It follows, that if the plaintiff were to obtain the injunctive relief he seeks, the court would be assisting him in relation to clearly established breaches of an agreement which has been performed by both parties and under which the plaintiff received a benefit. It would also involve affording protection to a work which itself infringes the copyright of four individuals. Even if the plaintiff satisfied the tests required in Campus Oil and Maha Lingham, which he has not, in my judgment it would not be appropriate for a court to grant equitable relief in these circumstances.
44. Finally, it is relevant to note that the plaintiff has chosen not to avail of the opportunities afforded to him to resolve any issues between himself and the defendant outside of court. The correspondence both prior and post publication reveals that the plaintiff had little interest in abiding by the terms of the agreement of 12th December, 2014. On the contrary, it indicates that if anything, he was anxious for the defendant to sue him. He clearly welcomed the opportunity to argue a defence of truth in defamation proceedings which he anticipated the defendant would bring against him in respect of his book. In the event, his wish was not fulfilled due to the approach adopted by the defendant as I have outlined in this judgment. In the circumstances, it is open to the Court to conclude that these proceedings were brought because the plaintiff was frustrated by the failure of the defendant to sue him for defamation and not because he had a genuine belief that the defendant had acted wrongfully towards him. It is of course important to note that it is not open to the plaintiff to sue the defendant in respect of any wrongs allegedly perpetrated by the defendant to third parties such as Amazon or the various booksellers contacted by the defendant.
45. For these reasons, I refuse the application.
