Andrew Guise v Rajeev Shah
| Jurisdiction | England & Wales |
| Judge | Mr Justice Dingemans |
| Judgment Date | 06 July 2017 |
| Neutral Citation | [2017] EWHC 1689 (QB) |
| Docket Number | Case No: HQ15D05048 |
| Court | Queen's Bench Division |
| Date | 06 July 2017 |
[2017] EWHC 1689 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Dingemans
Case No: HQ15D05048
Richard Munden (instructed by Brett Wilson LLP) for the Claimant
David Hirst (instructed on Direct Access) for the Defendant
Hearing dates: 2 nd, 3 rd, 5 th, 8 th and 11 th May 2017
Judgment Approved
This is the hearing of claims for libel, harassment and for infringement of the Data Protection Act 1998 ("the DPA") made by Dr Andrew Guise ("Dr Guise") against Mr Rajeev Shah ("Mr Shah"). It is also the hearing of claims for harassment and for infringement of the DPA made by Mr Shah against Dr Guise. A claim for malicious falsehood made by Mr Shah against Dr Guise was discontinued on the first day of trial.
Dr Guise had provided services to Dental CPD Services Limited trading as Dental CPD Pro ("DCPD"), a company controlled by Mr Shah and which provides Continuing Professional Development ("CPD") training for dentists, and Mr Shah. There was no written contract and a dispute arose between Mr Shah and Dr Guise about the terms of Dr Guise's engagement and in particular what, if anything, was owed by DCPD to Dr Guise, and the engagement was terminated.
As a result of the dispute about what, if anything, was owed by DCPD (or others) to Dr Guise, the relationship between Dr Guise and Mr Shah broke down. There is a dispute about whether Dr Guise started threatening to publish and did publish confidential information relating to DCPD and Mr Shah after the breakdown of the relationship. Mr Shah then created a website ("andrewguise. com") in which he made various statements about Dr Guise, which Dr Guise contends are inaccurate and defamatory. Mr Shah said that he created this website in an attempt to de-escalate the dispute between Dr Guise and Mr Shah, but if that was the intention it had the opposite effect. Dr Guise then published a website ("rajeevshahdental. com") in which he made various statements about Mr Shah, which Mr Shah contends are inaccurate. The claims under the DPA are made in respect of the inaccuracies alleged on both websites. Both Dr Guise and Mr Shah allege that they have been harassed by the other, giving rise to the claims for harassment.
Procedural issues
The parties were, at various times in the proceedings, acting in person. Timetables for disclosure and exchange of witness statements were extended by the parties and, by the time of the trial, witness statements had only been exchanged on 22 nd April 2017, some 10 days before trial, and there were a number of procedural issues to be resolved. This was not a satisfactory or sensible way to prepare for trial. However I should record my thanks to the legal teams on both sides who, after their respective appointments, co-operated with each other and the Court to ensure that the trial was effective and completed within the original time estimate.
Mr Shah had applied for permission to reamend the Defence and Counterclaim to plead loss and damage for the claim for malicious falsehood. As noted above the claim for malicious falsehood was discontinued on the first day of the trial, and this application was not therefore pursued. In closing submissions Mr Shah made a second application to reamend the Defence and Counterclaim to plead justification for the meaning of the word "scam" used on the "andrewguise. com" website. I reserved that application to be determined with the judgment and will address it later in the judgment.
There was an application for a witness summons to be served on Erika Kilburn, a witness for Mr Shah, who had changed her mind about whether she would attend the trial. I granted permission for a summons to be issued because it appeared that Ms Kilburn had relevant evidence to give, and because Ms Kilburn had appeared to be willing to give evidence in the lead up to the trial. In the event Ms Kilburn attended and gave evidence.
There was an issue about whether Dr Guise should be entitled to rely on the witness evidence of Robert Dyas and Anthony Kilcoyne. It was said that the evidence was relevant to show that Mr Shah had a propensity to act in a certain way, but Mr Shah contended that part of their evidence was not relevant. I agreed to consider the evidence de bene esse, and then to assess it in the light of the other evidence and after hearing closing submissions. However Mr Dyas then issued an application to set aside a witness summons which had been served on him by Dr Guise, on the basis that he was concerned that giving evidence would put him in breach of a settlement agreement that he had reached with Mr Shah in relation to a separate and unrelated dispute between them. Mr Shah's legal team provided reassurance to Mr Dyas and Mr Dyas did give evidence. However I restricted his evidence to what he alleged were threats made against him by Mr Shah, and did not permit him to give evidence about his separate and unrelated dispute with Mr Shah. This was because evidence of his dispute with Mr Shah was not going to assist me to determine this case.
After Mr Dyas had given evidence there was an application for a disclosure order against Derbyshire police, which was said to be relevant to the issue of whether that police force had contacted Mr Shah in relation to a complaint made by Mr Dyas. It became clear that Mr Shah's evidence that he had not been contacted by that police force was not challenged, and therefore it did not become necessary to make an order.
There were disclosure applications about emails and copies of police documents. These were addressed and resolved during the course of the trial.
Mr Shah, who has considerable experience in IT matters but who does not write software and is not a "coder", disputed the authenticity of a number of emails which had been disclosed by Dr Guise and sought permission to instruct an expert to determine the authenticity of the emails. As the process of disclosure had been ongoing up to the trial and because these emails had been disclosed very late, I did grant permission to both parties to instruct an IT expert to give evidence on the genuineness of specified emails. It was apparent that the evidence at the trial would conclude on Monday 8 th May 2017, that the experts would be available to give evidence on Thursday 11 th May 2017, and that if closing submissions were adjourned after the evidence concluded on 8 th May 2017, then 11 th May 2017 could be used to hear expert evidence and closing submissions. In the final event the expert evidence did not support Mr Shah's case and in closing submissions the suggestion that Dr Guise had doctored emails was withdrawn, and Mr Shah apologised for making this allegation.
During the course of the trial a number of further statements were adduced on procedural matters. In one of them Mr Shah disclosed that he had located one of the disputed emails (dated 2 nd December 2014) on one of the data backups to an email account, although for reasons which were not clear to him it had not been delivered into his email inbox. Mr Shah therefore withdrew the allegation of fabrication of this email in his fourth witness statement, although it might be noted that he did not then apologise for making the allegation. It is fair to point out that when this had been identified Mr Hirst did, on behalf of Mr Shah, apologise for this false allegation of fabrication. Dr Guise has relied on Mr Shah's conduct of the defence in these proceedings as justifying an award of aggravated damages, should any award of damages found to be due to him.
Applicable legal principles
There was no material dispute between the parties about the applicable legal principles, which I have set out briefly below.
The meaning of the words published in libel actions
When deciding the meaning of words, a judge is providing written reasons for his conclusion as to the meaning to be attributed to the words sued upon. A Judge should not fall into the trap of conducting an over-elaborate analysis of the various passages relied on by the respective protagonists. The meaning is to be determined from the viewpoint of the layman, not by the techniques of a lawyer, see Waterson v Lloyd [2013] EWCA Civ 136; [2013] EMLR 17 at paragraph 53. The exercise has been described as one of ascertaining the broad impression made on the hypothetical reader by the words taken as a whole. The natural and ordinary meaning of words includes what the reasonable man will infer from the words. It was common ground that the Court is entitled to reach its own conclusions on meaning, and is not required to adopt meanings advanced by either party. The applicable principles were summarised by Sir Anthony Clarke MR in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at paragraph 14.
Fact or comment/opinion
When a meaning is determined, the Court will have to consider whether the meaning is a statement of fact or comment, now referred to as opinion by the Defamation Act 2013. The parties have referred to comment and opinion interchangeably, and it is not suggested that anything turns on the difference of wording. Opinion must be recognisable as an opinion, as distinct from an imputation of fact. The opinion must explicitly or implicitly indicate, at least in general terms, what are the facts on which the opinion is formed, otherwise the opinion will be treated as a statement of fact. It has been said that the sense of opinion " is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, remark, observation, etc.", see Branson v Bower [2001] EWCA Civ 791; [2001] EMLR 32 at paragraph 12 and the authorities there considered. A statement may be fact or opinion, depending on context.
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...from that which has been examined in this case. It has recently been the subject of consideration by Dingemans J in Guise v Shah [2017] EWHC 1689 (QB). And in the circumstances, including those summarised at [97] above and [136] below, has not been necessary or appropriate to explore whethe......