Jersey Unreported Judgments

Data protection - application for a finding that the respondent has failed to comply with court order.

[2013]JRC219

Royal Court

(Samedi)

14 November 2013

Advocate F. B. Robertson for the Representors.

The Respondent did not appear and was not represented.

judgment

the commissioner:

1.        This is an application by the four representors for a finding that the respondent, Mr Stuart Syvret, has failed to comply with an order of the Court made on 1^st August, 2013.  The representors further seek a finding that the respondent has been guilty of contempt of court by reason of his non-compliance with the orders of the Court. 

2.        It is necessary for us to set out as briefly as possible the relevant history of the proceedings which can be summarised as follows.  On 13^th August, 2012, Commissioner Page granted an injunction restraining the respondent from posting on, or in way adding to, his blog or any other blog website or similar media of any material relating in any way to the representors or any of them. 

3.        At a hearing held in private on 13^th May, 2013, the Court refused an application by the respondent that the injunction granted by Commissioner Page be discharged.  Although the respondent had notified the Court that he wished to apply for the injunction to be discharged, he did not in the event appear at the hearing of the application. 

4.        On 1^st August, 2013, the Court refused the application of the respondent for the discharge of the injunction granted on 13^th May, 2013.  The Court continued the injunction previously granted against the respondent and made a Final Order that the respondent delete forthwith reference to the representors' personal data from his blog. 

5.        In the judgment of the Court dated 1^st August, 2013, I dealt, at paragraphs 26 to 28, with the question as to what action should be taken in regard to the persistent failure of the respondent to adhere to the previous orders of the Court and, in particular, breaches which had occurred since the date of the substantive hearing.  I concluded for the reasons set out in paragraph 28 that no further action should be taken at that time in relation to the flouting by the respondent of the Orders made by the Court. 

6.        By the present application the representors seek from the Court a finding that the respondent has been guilty of contempt by failing to comply with the order of 1^st August, 2013, that he remove the data of the representors from his blog and that he has continued to process more of the data of the representors on his own blog as well as by posting or linking such data to other blog sites.  The Final Order was served on the respondent on 13^th August, 2013, and the final judgments were handed down on 4^th September, 2013. 

7.        Not only did the respondent fail to comply with the Final Order, he included in his posts the names of the four representors and accused them of gross misconduct.  The representors will rely in support of this contention upon the contents of paragraph 12 of the affidavit sworn by the fourth representor on 20^th September, 2013. 

8.        The grounds of the application now before the Court are that since the handing down of the Order made on 1^st August, 2013, the respondent has:-

(i)        failed to remove the representors' data from his blog and has indicated that he has no intention of doing so; and

(ii)       continued to process the representors' data in breach of the order of 1^st August, 2013. 

9.        The representors accordingly now seek:-

(i)        a finding that the respondent is in contempt of court in that he has breached the terms of the Final Order of the Court made on 1^st August, 2013, as referred to in paragraph 5 above;

(ii)       such orders as are appropriate for the contempt alleged; and

(iii)      an order for costs on an indemnity basis. 

10.      The respondent did not appear at the hearing which took place on 4^th September, 2013, although we are satisfied he had previously been notified of the date and time of the hearing. 

11.      Such being the history of these prolonged proceedings we are now in a position to set out our findings.  It is abundantly clear that the respondent has determined to disregard orders made by the Court.  Not only has he failed to obey orders made by the Court for the removal of the data from his blog and from the blogs of others to whom that data was provided by the respondent by means of hyperlinks, he has also made clear that he has every intention of continuing to post more data including, for example, in a post on 5^th September, 2013, addressed to the fourth representor.  Moreover he has directed by means of hyperlinks those who read his blogs to view the blogs of others.  We are also satisfied that the respondent has allowed others to post on the respondent's blog comments by third parties which disclose the identities of one or other of the representors and contain defamatory and/or offensive material relating to the representors.  We refer to paragraph 8 to 13 of the affidavit sworn by the fourth representor on 20^th September, 2013. 

12.      In addition we accept that the respondent has made clear by his comments when interviewed by the media that he has no intention of removing postings from his blog as he has been ordered to do by the Court.  Further he has indicated an intention to publish more postings on his blog in contravention of the orders made by the Court.  We refer to paragraphs 14 and 15 in the fourth representor's affidavit sworn on 20^th September, 2013. 

13.      We are entirely satisfied that the respondent has deliberately and persistently breached orders made by the Court and that he has indicated an intention to do so in the future. 

14.      The question which we have to decide is what penalty we should impose upon the respondent.  Advocate Robertson invites us on behalf of the representors to punish the respondent for what we are satisfied amounts to persistent and wilful contempt of the Court and deliberate breaching of orders made by the Court for which no apology or expression of regret has been made by the respondent. 

15.      On behalf of his clients Advocate Robertson rightly indicated in the course of his oral submissions that for the continued and deliberate flouting of orders made by the Court, it was a matter for us to decide what punishment should be imposed. 

16.      In that regard we were referred to Taylor-v-Chief Officer of States of Jersey Police and anor [2004] JLR 494, at paragraphs 29 & 30, for the proposition, which we accept, that the test for determining whether an alleged contemnor  has been guilty of contempt is an objective one.  Intention is relevant only to the question of penalty.  As we have made clear we are satisfied beyond doubt in the present case that the respondent has deliberately breached orders of the court over a prolonged period. 

17.      Amongst other authorities cited by Advocate Robertson was Caversham Trustees-v-Patel and ors [2007] JLR N 60.  The court in that case indicated that a custodial sentence would be imposed for "a blatant and aggravated contempt" particularly in cases where the contemnor has been clearly warned as to the possible consequences of defying an order. 

18.      We were also referred to A-v-G [2009] JRC 116, where a sentence of 8 weeks' imprisonment was imposed on a father who removed his child to Italy in breach of an order of the Jersey Court.  We note that in paragraph 22 of that case the Court referred to an observation made by Sir Thomas Bingham M.R. (as he then was) in Delaney-v-Delaney [1996] QB 387 at 400 where a judge is uncertain what sentence he should impose, he can impose a sentence at the top of the appropriate bracket while at the same time directing that the matter be restored for further hearing.  At that further hearing it would be open to the judge to:-

(i)        affirm the original sentence;

(ii)       order the immediate release of the contemnor; or

(iii)      set a further date for the release of the contemnor. 

As the court in Delaney observed this course enables the Court to review the sentence whilst at the same time giving the contemnor every incentive to purge his contempt. 

19.      Advocate Robertson also referred us to an English authority namely Burton-v-Winters [1993] 3 All ER 847.  Whilst we see the benefit of adopting the course suggested in Delaney, namely that a sentence at the top of bracket coupled with an opportunity for the court subsequently to review that sentence would or might coerce a defendant to comply with a court order, we are doubtful if the respondent in the present case would be coerced by such an order into obedience in the future. 

20.      In the present case we are satisfied that the contempts committed by the respondent have been persistent and deliberate and have, we are satisfied, caused real distress to the representors.  No apology or expression of regret has been forthcoming.  We cannot avoid the conclusion that a custodial sentence is essential in the circumstances of this case. 

21.      We have concluded that the only appropriate sentence in all the circumstances of this case is a custodial one.  The sentence of the court is one of 3 months' imprisonment. 

22.      As regards the costs of the application to commit we accept that the appropriate order is that the costs of the representors are paid by the respondent on an indemnity basis, to be taxed if not agreed.  

Authorities

Taylor-v-Chief Officer of States of Jersey Police and anon [2004] JLR 494.

Caversham Trustees-v-Patel and ors [2007] JLR N 60.

A-v-G [2009] JRC 116.

Delaney-v-Delaney [1996] QB 387.

Burton-v-Winters [1993] 3 All ER 847.