Alexander Amir Aslani v Paulina Sobierajska
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 28 July 2021 |
| Neutral Citation | [2021] EWHC 2127 (QB) |
| Docket Number | Case No: QB-2020-004166 |
| Court | Queen's Bench Division |
[2021] EWHC 2127 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mr Justice Saini
Case No: QB-2020-004166
Steven Reed (instructed by Pinder Reaux Associates Limited) for the Claimant
The Defendant did not appear and was not represented
Hearing dates: 26 July 2021
Approved Judgment
This judgment is in 6 parts as follows:
| I. Overview: | paras. [1–3] |
| II. The Facts: | paras. [4–11] |
| III. Legal Principles | paras. [12–15] |
| IV. Quantum: | paras. [16–34] |
| V. Conclusion: | paras. [35–36]. |
| Annexe I: the publications. | |
| Annexe II: the pleaded meanings. |
I. Overview
This is an assessment of damages and ancillary relief in a libel claim brought by Dr Alexander Aslani (“the Claimant”) against Paulina Soberiskja (“the Defendant”). The Claimant is a respected plastic and reconstructive surgeon with particular expertise in a form of buttock augmentation surgery known as Brazilian Butt Lift (“BBL”). The Defendant is a former patient of the Claimant and is a social media “influencer”.
BBL surgery was performed by the Claimant on the Defendant on a number of occasions. The Claimant has used social media to libel the Claimant in relation to his conduct and abilities as a surgeon, as I shall describe in more detail below. The claim was issued on 18 November 2020 and relates to four defamatory publications made by the Defendant between 3 August 2020 and 4 October 2020. These publications are attached to this judgment as Annexe I. The Defendant, aside from some preliminary exchanges in correspondence in October 2020, has ignored these proceedings. Default judgment was entered on 6 January 2021 Master Thornett on the failure of the Defendant to serve an acknowledgment of service.
In addition to damages for libel, the Defendant seeks injunctive relief and an order under section 12 of the Defamation Act 2013. The Defendant had notice of these proceedings and did not attend the hearing. I was satisfied for the purpose of CPR 39.3(1) that I should proceed with the hearing having considered the guidance in Sloutsker v Romanova [2015] EWHC 2053 (QB) at [26]
II. The Facts
The Claimant is a well-known and highly surgeon, who is also the CEO of Cirumed Clinic (“the Clinic”) in Marbella, Spain, where he operates and has specific and targeted expertise in body contouring surgery including BBL. On the evidence before me, I am satisfied that a large proportion of the Claimant's clients are domiciled in England or Wales.
The Defendant is a social media “influencer”, who operates the Instagram profile ‘thegiirlyouhate’. That profile, as at the date of the Particulars of Claim, had more than 52,800 followers and now has over 96,000 followers. It is also appears that the Defendant operated ‘cirumed_clinic_reviews’, which had 673 followers at the time the claim was initiated. The Defendant also operated under the username ‘3unsuccessfulrounds’ on realself.com (“RealSelf”), a website where customers leave user-generated reviews of plastic surgeons and dermatologists.
The Defendant is a long-standing patient of the Claimant; he had performed three major surgeries on her in February 2018, June 2019 and March 2020. The Defendant paid for the first two surgeries and the third was carried out free of charge, as a gesture of goodwill. The Defendant had created significant social media interest in both the Claimant and his clinic by posting positively about them and “tagging” them in Instagram posts. Indeed, on the evidence before me, the Defendant continued to post positively about the Claimant after her third surgical procedure had been carried out.
Prior to the publications complained of, the Defendant had not complained to the Claimant nor expressed any dissatisfaction with any of the procedures. I turn to those publications in Annexe I followed by a table which sets out the meanings as pleaded in the Particulars of Claim.
There are four publications complained of:
i) On 14 October 2020, the Defendant published a video on ‘thegiirlyouhate’ Instagram profile. The video was accompanied by prominent onscreen captions referring to ‘Aslani’ or ‘Dr Aslani’ (“the 1st Publication”).
ii) On 14 October 2020, the Defendant published a message on the ‘thegiirlyouhate’ Instagram profile which read ‘to the girls who are following me because they want to go to my previous surgeon…DON'T DO IT..” (“the 2nd Publication”).
iii) On 3 August 2020, the Defendant published a review under the username ‘3unsuccessfulrounds’ on RealSelf. On 5 August 2020, the Defendant replied to a comment left by another user on her post (“the 3rd Publication”).
iv) On or around 1 September 2020, the Defendant created the Instagram profile ‘cirumed_clinic_reviews’. The ‘bio’ for the profile states: ‘This Instagram account was created to share honest reviews on your surgery experience in Marbella by Dr.A [needle emoji]’. 46 posts had been published at the time of the Particulars of Claim alongside numerous Instagram stories. (“the 4th Publication”).
The Claimant complied with the Pre-Action Protocol for Media and Communications claims by a letter dated 14 October 2020 sent to two email addresses for the Defendant, which the Claimant had on file. The Defendant responded from one of those email addresses. After reasonable enquiries, the Defendant made an application on 18 November 2020 for an order for alternative service by email. The Court made an order for alternative service on 4 December 2020 permitting the Claimant to serve he Defendant at the two email addresses. The order was made pursuant to CPR 6.15 on the basis that the Defendant was within the jurisdiction.
In accordance with the order of 4 December 2020, the Claimant served the Defendant with the Claim Form, Particulars of Claim, Response Pack and the Order by alternative service via email on 15 December 2020. The Defendant did not engage or otherwise respond, as I have already indicated. On 6 January 2021 Master Thornett entered default judgment against the Defendant. As explained in New Century Media Limited v Makhlay [2013] EWHC 3556 (QB), at [30], that where default judgment is granted “The Particulars of Claim are, in effect, a proxy for the judgment, setting out the basis of liability”.
After inspection of the Defendant's social media profile on Instagram, it became apparent that the Defendant was ostensibly not within the jurisdiction nor was there any indication she would return to settled residency in the near future. Accordingly, to avoid any contention that the Defendant had not been properly served, the Claimant made an application on 11 March 2021 for the Court to order retrospectively that service of the Claim Form was dispensed with and that the service carried out on 15 December 2020 was good service. That order was made on 8 April 2021.
III. Legal Principles
I will begin with the relevant legal principles and then turn to the specific facts and findings (including inferential conclusions as to the facts). It is established that libel damages have a threefold purpose namely: (1) to compensate for distress and hurt feelings; (2) to compensate for actual injury to reputation which has been proved or might reasonably be inferred; and (3) to serve as an outward and visible sign of vindication.
The relevant principles as to assessing damages in a defamation claim were described in some detail in the Claimant's submissions by reference to the main cases including Barron v Vines [2016] EWHC 1226 (QB) at [20]–[21]. I was also taken to defamation awards in what were said to be analogous cases. I will not set those cases out and I bear in mind that every case is decided on its own facts and there is no direct comparator.
CPR rule 12.11(1) provides that: “ Where the claimant makes an application for a default judgment, judgment shall be such judgment as it appears to the court that the claimant is entitled to on his statement of case.” Accordingly, the court proceeds to grant relief on the basis of the unchallenged statement of case unless the claim is for some reason impossible or any required legal threshold has not been met: Sloutsker at [84]–[86] and Suttle v Walker [2019] EWHC 396 (QB) at [36].
Besides being satisfied that the claim is sustainable, the court must be satisfied it has jurisdiction pursuant to sections 9 and section 10 of the Defamation Act 2013 to hear the claim ( Brett Wilson LLP v Persons Unknown [2016] 4 WLR 69 at [18]–[32] and Al Sadik v Sadik [2019] EWHC 2717 (QB)). These provisions are concerned, respectively, with whether a defendant is responsible for publication and whether England and Wales is an appropriate jurisdiction.
IV. Quantum
Whilst the natural and ordinary meanings of the 1 st Publication and the 2 nd Publication are different, the Claimant accepts that they were published on the same day and from the same Instagram profile and therefore accepts that these should be compensated by one award of damages. However, it was argued on his behalf that the 3 rd Publication and the 4 th Publication should not the subject of a single award. I was referred to the facts that they were published on different dates, on different platforms and materially different in content. It was also said that whilst there may have been some crossover in terms of those who viewed the publications, they will also have had separate viewers. Accordingly, it is argued the 3 rd Publication and the 4 th Publication should be met by separate awards.
It was however accepted that it was for me to determine whether a single or separate awards should be made. I have decided that the just approach is to make a single award as regards...
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