Full case report

QRS v Beach

Reference [2014] EWHC 3057 (QB)
Court High Court (QBD)

Judge Slade J

Date of Judgment 26 Sep 2014


Summary

Harassment – Interim Injunction – online publication – service – Civil Procedure Rules


Facts

The Claimant was a partner in and Chairman of a firm of solicitors and the First Defendant a former client of the firm. It was alleged that the First Defendant, with the Second Defendant’s assistance, had posted material on some of his own websites and on another one controlled by the Second Defendant. The material was said to be offensive and distressing to the Claimant and the firm’s staff.

The Claimant brought proceedings under the Protection from Harassment Act 1997 in a personal capacity and on a representative basis (under CPR 19.6) on behalf of (a) employees of the firm currently named on the websites, (b) employees and future employees of the firm not named on the websites but at risk of being so harassed, and (c) all lawyers and other persons acting for the Claimant in these proceedings. It was contended that each of these persons was either being harassed or was at serious risk of being harassed by the Defendants.

The Claimant applied for an interim injunction asking the court to make orders requiring the removal of the online material, preventing the Defendants from reinstating that material or any similar material, and restraining the Defendants from harassing the Claimant or other current or future employees of his firm.

During the course of the hearing the Claimant’s lawyers became aware that the Second Defendant no longer lived at the residential address where the case papers had been left for the purpose of serving them on him.


Issue

1) Should the case proceed against both Defendants when the Second Defendant had not been served with the case papers?

2) Should the case proceed against the First Defendant in his absence.

3) Should the hearing be held in private so that publicity did not defeat the purpose of the application?

4) Could the Claimant proceed in a representative capacity under CPR 19.6 on behalf of the three categories of persons whom he sought to represent?

5) Should an interim injunction be granted?


Held

1) The Judge was not satisfied that the Second Defendant had been served with proceedings, and the hearing should not proceed against him without notice.

The Judge accepted there was a real risk that the Second Defendant might, nonetheless, have come into possession of the case papers and that unless restrained he might disseminate sensitive information contained in the papers. Thus the Judge granted an order restraining the Second Defendant from publishing, communicating or disclosing such papers (with certain limited exceptions).

2) Although the First Defendant had been served with proceedings, he had not appeared at the hearing and had given no reason for not appearing. The Judge exercised her discretion under CPR 23.11(1) to proceed in his absence.

3) The hearing should not be held in private; a more limited order was appropriate. Making public the identity of the Claimant and those he represented and/or the names of the websites and their content would be likely to lead to others accessing the material giving rise to a risk of further harassment. Thus the Judge was satisfied that it was strictly necessary to make an order withholding those matters from the public.

4) The basis for the Claimant continuing the proceedings in a representative capacity was analogous to that in The Law Society v Kordowski [2011] EWHC 3185 (QB), [2014] EMLR 2. However, the Judge was not satisfied that the proposed category of “future employees of the firm” was sufficiently certain. The Claimant could proceed in a representative capacity on behalf of all the other represented parties.

5) Granting an interim injunction against the First Defendant:

a) There was evidence that the offending websites and their content had been drawn to the attention of the Claimant and the other represented individuals, or it was to be inferred that this was likely to occur. One posting by the First Defendant had the express intent of attracting the attention of the Claimant. Citing Dowson v Chief Constable of Northumbria Police [2010 EWHC 2612 (QB), Thompson v James [2013] EWHC 515 (QB) and The Law Society v Kordowski the Judge found that the actions of the First Defendant constituted a course of conduct.

b) The allegations included in the material on the websites were serious and offensive. They had caused real concern and apprehension within the firm. Some solicitors had received enquiries about the websites from actual or potential clients. They crossed the line into “torment” of the subjects, or vilification. The First Defendant knew that his conduct constituted harassment.

c) On the evidence before the court there appeared to be no defence to the claim for harassment.

d) An interim injunction affecting freedom of expression should not be granted “unless the court is satisfied that the applicant is likely to establish that publication should not be allowed” (s.12 Human Rights Act 1998). Applying the test in Cream Holdings Ltd v Banerjee [2005] 1 AC 253, that “likely” means “probably (more likely than not)”, the Judge was satisfied that the Claimant was likely to establish that publication should not be allowed.


Comment

As in The Law Society v Kordowski the Court granted a harassment injunction not just to protect a particular individual from harassment, but to prevent the harassment of entire classes of individual. In this way the Court has shown itself willing and able to put a stop to campaigns of vilification online, without the need for each individual affected by the harassing websites to take action on his or her own behalf. The capacity of the Protection from Harassment Act 1997 to tackle offensive and distressing conduct online has been demonstrated once again


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Instructing Solicitors

Brett Wilson LLP for the Claimant