February 24, 2016
Pre-action disclosure in Heir Hunters dispute
Ruling breathes new life into unused disclosure jurisdiction
Anglia Research Services, a leading genealogical research company has obtained an order for pre-action disclosure against competitor Finders International in respect of an alleged online ‘dirty tricks’ campaign.
Anglia and one of its directors Philip Turvey discovered from a series of Norwich Pharmacal disclosure orders against internet platforms that its competitor’s employees and managing director, Daniel Curran, were behind two Twitter profiles impersonating Mr Turvey and his father, Anglia’s founder, and had left signposts to and defamatory comments beneath a vexatious third party Change.org petition which made highly damaging and false allegations about Mr Turvey. When Anglia took these matters up with Finders through lawyers an email came to attention which sent a copy of the defamatory petition to a client of Anglia along with warnings against dealing with it. It transpired at least three clients, to Anglia’s knowledge, appeared to have been contacted in this way, over several months. Anglia and Mr Turvey alleged a number of claims in defamation and harassment in relation to the online activities and applied for pre-action disclosure of all instances of Finders’ sending out the defamatory petition to Anglia’s clients and prospective clients, on the basis that these were targeted communications calculated to cause them loss and damage to reputation and they were only aware of the ‘tip of the iceberg.’.
Finders denied the claims, but admitted sending out an email to an Anglia client and posting adverse comments under anonymous pseudonyms, for which they apologised and undertook not to do anything similar again. They distanced themselves from their employee’s Twitter activity and a posting resolving to a company agent, and resisted the disclosure application on the basis that claims could be pleaded without disclosure and amended later, the applicants were ‘fishing’ for a case and on the grounds that a protective claim form issued prior to the application in respect of alleged libels published openly on websites meant there was no jurisdiction to order pre-action disclosure.
HHJ Moloney QC sitting as a Deputy High Court Judge rejected those arguments and ruled that the application, and preceding correspondence, had always sought disclosure in relation to publications and a cause of action which formed no part of the issued claim form, and that any proposed further claim forms would not be abusive, being based on separate publications and facts, and different potential losses, and the Court had both jurisdiction and the threshold and discretionary requirements were met. There was a ‘strong prima facie case‘ the Deputy Judge noted and Finders had not refuted the inferential case that they had ‘both retained and made systematic use of the Change.org petition for the purposes of competition with the Claimants‘. Finders were ordered to look for all documents on their systems which contained links to or attached the defamatory Change.org petition.
The case breathes new life into the pre-action disclosure jurisdiction in defamation, in which there has been no reported decision for over a decade. As the Deputy Judge observed, since the introduction of s. 1 of the Defamation Act 2013, libel like harassment is subject to a threshold of seriousness requirement which is likely to lead claimants to make ever more careful assessments of the value and validity of their claims before proceeding with them, an assessment which in some cases will be notably assisted by applying for disclosure from a prospective defendant before commencing.
5RB’s David Hirst was counsel for Anglia Research Services Ltd and Mr Turvey and was instructed by Carter-Ruck.
The judgment can be found here.
Two leading genealogists clash in High Court defamation battle – Daily Telegraph