Full case report

Al-Ko Kober Ltd & Anor v Balvinder Sambhi (contempt)

Reference [2018] EWHC 165 (QB)
Court High Court (Queen's Bench Division)

Judge Nicklin J

Date of Judgment 2 Feb 2018


Summary

Contempt of court – committal proceedings – injunction – malicious falsehood – Data Protection Act 1998


Facts

C1 was a UK company and part of the business Al-Ko VT which is a leading brand in the towing and trailer industry, and C2 was C1’s marketing manager (together, “the Cs”). D was a person who claimed to have developed a product called the ‘Torquebar’, which would be a competitor product to stabiliser products manufactured by the First Claimant.

D made various videos which refer to the stabilisers and to the Cs in various ways which were derogatory of the stabilisers and the Cs. The videos were published on the Defendant’s Torquebar YouTube channel.

The Cs sought and obtained an interim injunction against the Defendant to restrain him from publishing (or continuing to publish) the videos on the grounds that their continued publication constituted malicious falsehood and/or breach of the Data Protection Act 1998 (“the Injunction Application”).

The Injunction Application came before Whipple J on 22 September 2017. Judgment was handed down on 6 October 2017 ([2017] EWHC 2474 (QB)). Granting an interim injunction, in summary, the Judge prohibited D from publishing further malicious falsehoods in relation to C1 or from processing C2’s personal data (“the Order”).

The Cs contended that D had breached the terms of the Order and was therefore in contempt of court and that he had done so by publishing statements prohibited by the Order in two ways. First, by publishing (pseudonymously via various YouTube accounts) further videos that contained prohibited statements. Second, at the Motorhome and Caravan Show 2017, which took place on 17 October 2017 (“the Exhibition”), by handing out a leaflet to people at the Exhibition that contained prohibited statements (“the Exhibition Handout”).

The Cs had not served D personally with the Order as required by CPR Part 81.5(1) and applied for the Court to dispense with service of the Order pursuant to CPR 81.8 because: D was present at the hearing of the application which led to the Order being made; D was provided with the draft judgment on 29 September 2017 and asked to provide the Judge with submissions as to the form of order consequent on the judgment; D was provided with a draft order by the Cs and stated that he did not agree with its terms; and D was emailed a copy of the final judgment (as handed down) together with the Order made by the Judge, along with an explanation of the effect of the Order, an email to which he replied.

The Cs had not served D personally with the application notice and the evidence in support on the committal application as required by CPR Part 81.10(4) and applied to the Court to dispense with personal service under paragraph (4) since it was “just to do so”. They did so because, following a failed attempt to serve the documents by a process server, on 4 January 2018, the Cs’ solicitors served the Application Notice on D by email, by ordinary first-class post and also by recorded delivery to the Defendant’s home address. The letter drew D’s attention to Grounds attached to the Application Notice and also advised him that he could apply for legal aid to be represented at the hearing.

At the hearing, D admitted responsibility for publication of the Exhibition Handout. The Exhibition Handout contained the words “AL-KO KOBER LTD AND MR PAUL JONES ARE SCARED OF THE REAL TRUTH THAT IS WHY THEY HAD TO COMMENCE LEGAL ACTION TO THE HIGH COURT UK ON 22 SEPTEMBER 2017!”

The Cs contended that the publication of the Exhibition Handout was a breach of paragraphs of the Order of 6 October 2017 because it amounted to words or a statement to substantially similar effect to the statements that “AL-KO is trying to keep hidden the failure of its stabiliser product” and that “AL-KO and/or Paul Jones are using solicitors to try to hush up the fact that they have been lying to the public”.

The case against D over the publication of the YouTube videos, which he did not admit responsibility for, was based entirely on circumstantial evidence. However, the Cs submitted that, as in criminal trials, circumstantial evidence is capable of providing an evidential foundation upon which the relevant tribunal can be sure of a respondent’s guilt.


Issue

(1) Should personal service of the Order be dispensed with?

(2) Should personal service of the committal application be dispensed with?

(3) Was D guilty of contempt of court in respect of a) the Exhibition Handout and (b) the YouTube videos?


Held

Dispensing with personal service of the Order and committal application and finding D guilty of contempt of court:

(1) D was fully aware of the terms of the Order as a result of his being sent the Order by email from the Judge’s clerk on 6 October 2017. D accepted at the hearing that he was aware of the terms of the Order, and the Judge dispensed with the requirement that the Order be personally served on the Defendant under CPR Part 81.8.

(2) Although not “personally served” under the CPR, the Defendant had been effectively served with the Application Notice. D confirmed during the hearing that he had received emails sent by the Claimants’ solicitors and the Judge was satisfied that he received the email of 4 January 2018 which attached the Application Notice, Statement of Grounds, the first affidavit of the Cs’ solicitor, and a draft order. It was just to dispense with personal service of the Application Notice.

(3) In relation to the Exhibition Handout, the Court applied the principles relevant to the determination of meaning in defamation. However, the Judge held that the standard of proof was important and that he had to be sure that the meaning conveyed was a breach of the order. The Judge held that the meaning conveyed by the Exhibition Handout was that “there is a High Court case involving the Cs. In those proceedings statements have been made as to the effectiveness of C1’s stabiliser product to prevent caravan snaking. Those statements are not true and are contradicted by other statements the Cs have made. The Cs are scared that the truth will become known and so have resorted to legal proceedings to try and prevent this.”

The Judge was not sure that this meaning was “substantially to similar effect” as the statements prohibited by the Order and that it was therefore a breach of the terms of the Order.

In relation to the YouTube videos, the Judge assessed whether D was responsible for the anonymous YouTube accounts which republished them.

The Cs obtained information from YouTube by means of a Norwich Pharmacal Order as to the activity related to the accounts. The Judge held that, because of the timing of the creation of the accounts, the details of their operation, and the nature of the videos uploaded to the accounts, which had all previously been available on D’s Torquebar YouTube channel, that the same individual was responsible for the uploading of the videos to the accounts and that he could be sure that that person was D.

The Judge then determined that the videos published by D contained statements that were prohibited by the Order and that he could be satisfied so that he was sure that: the Defendant uploaded the videos that were the subject of the Grounds for committal; those videos published statements that D was prohibited from publishing by the injunction Order of 6 October 2017; and that D knew that publication of those videos was a breach of the injunction Order of 6 October 2017.

In consequence, D was found guilty of contempt of court.


Comment

The issues on the application underline the procedural complexity in bringing applications for contempt of court, where there are a number of safeguards for the interests of contemnors built into the CPR. The decision makes clear that the criminal standard of proof applicable in contempt will be the threshold for a determination of the meaning of the words or publication which is alleged to be in breach of an order.


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