Full case report

QRS v Beach (No. 2)

Reference [2014] EWHC 3319 (QB)
Court High Court (Queen's Bench Division)

Judge Stuart-Smith J

Date of Judgment 16 Sep 2014


Summary

Harassment – injunction – default judgment – permanent injunction – anonymity – representative proceedings


Facts

These were representative proceedings in which C, a solicitor, applied on his own behalf and on behalf of others who had an identical interest to his own, for an injunction. D1 was a disgruntled former client and D2 was the operator of the website solicitorsfromhell.co.uk, against whom judgment had been entered in Law Society v Kordowski [2011] EWHC 3185 (QB). The hearing was the return date of a successful application for an interim injunction to Slade J on 13 August 2014 (QRS v Beach [2014] EWHC 3057 (QB). The background facts can be found in the report of her decision.

At the 13 August hearing, only limited orders were made against D2 because it became apparent during the hearing that he had not been properly served. In the intervening period, both Ds had been properly served with the orders of Slade J, the amended claim form and Particulars, and a response pack. On 19 August D1 posted new material on one of the websites showing that he was aware of the proceedings, and suggested that the claimants should engage in court.

As a result of Slade J’s order the websites that the Ds had been using were removed from the internet, although adverse search engine results and snippets persisted. There was clear evidence that further websites had been set up to carry on the campaign of harassment. D1 started publishing derogatory material on 3 further websites on about 6 September 2014. Those were taken down on 8 and 9 September, but two further sites were used to publish similar or identical derogatory material. The Ds had failed to acknowledge service of the proceedings or serve defences.

C applied for judgment in default of defence and a permanent injunction.


Issue

1) Were the necessary procedural conditions for judgment and a permanent injunction satisfied?

2) Should judgment in default and a final order be made?


Held

Giving judgment for C and issuing a permanent injunction:

1) The hearing proceeded in the absence of the Ds pursuant to the discretion provided by CPR 23.11. It was clear that the Ds had been properly served and were fully aware of proceedings and the order of Slade J, as well being properly served with the instant application.

The conditions for judgment in default had been satisfied, the amended claim form and particulars of claim had been deemed served, and the last day for service of acknowledgement of service had passed.

Since the amending of the Particulars of Claim on 15 August 2014 six additional websites had emerged, each being clearly related to the websites identified in the amended claim form and the amended Particulars of Claim, having similar names and similar or identical material. The Cs wished to obtain an order which encompassed the later websites. While it was not appropriate for the court to make an order going wider than the claim form and statement of case being considered when the order was made, it would be unjust if a defendant could stymie the court’s powers and process by replicating previous conduct under a different name. Leave was therefore given to re-amend the amended Particulars to incorporate the later websites. It was ordered that further service be dispensed with before the making of the main order to which the judgment related. Frustrating the court’s process by publishing on additional websites would have been an injustice to C, and there would have been no injustice to the Ds in doing so.

2) The evidence showed a clear course of deliberate and unlawful harassment of C and the protected parties. It was highly probable to the point of virtual certainty that unless restrained the Ds would continue to harass C as they had done before and since Slade J’s order. The prejudice and inconvenience to C and the protected parties was high. The order sought was necessary and proportionate to protect the C from further harassment.

The Judge had given particular attention to the effect of the proposed order upon the Ds’ right to freedom of expression. Since the Ds had chosen not to take their opportunity to assert it by serving any response to the claim or application, there would be final judgment. C was entitled to a permanent injunction to vindicate the right proved against each D, as indicated by Tugendhat J in ZAM v CFW [2013] EWHC 662 (QB).

The anonymity order granted by Slade J was continued as this was necessary to prevent identification of C and the protected parties.


Comment

The Judge affirmed that in spite of the defendant’s right to freedom of expression, a Claimant may be entitled, along with final judgment, to a permanent injunction to vindicate the right proved against each defendant. In doing so he referred to the observations of Tugendhat J in ZAM. It is noteworthy that, in granting this injunction, the Judge said that he had reviewed the merits of the application and given judgment on them. In making an assessment of the merits at this stage, he appears to have taken a role similar to that assumed by the court on a summary judgment application.


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Instructing Solicitors

Brett Wilson LLP for C