Brett Wilson Llp v Person(s) Unknown, Responsible for the Operation and Publication of the Website www.solicitorsfromhelluk.com (Defendant(s)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 16 September 2015 |
| Neutral Citation | [2015] EWHC 2628 (QB) |
| Docket Number | Case No: HQ15D03283 |
| Court | Queen's Bench Division |
| Date | 16 September 2015 |
[2015] EWHC 2628 (QB)
Mr Justice Warby
Case No: HQ15D03283
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Iain Wilson for the Claimant
No appearance for or on behalf of the Defendants
Hearing date: 7 September 2015
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Members of the legal profession and other readers of the law reports will be familiar with 'Solicitors from Hell'. It is the name used for and by a variety of websites which, over a period of years, have been used as a vehicle for denouncing solicitors and other member of the legal profession in the most outspoken terms, for alleged misconduct. The original website, set up by Rick Kordowski, was at www.solicitorsfromhell.co.uk. That site was closed down some years ago.
The solicitors firm which is the claimant in this action acted for the claimants in the litigation against Mr Kordowski, in which orders were made that closed down the original Solicitors from Hell site: Law Society v Kordowski [2011] EWHC 3185 (QB), [2014] EMLR Now the firm itself has been targeted, via a web address which is a simple variant of the original. I shall refer to the new site as SFHUK. com.
Some of the claims made against the operator(s) of Solicitors from Hell websites in the past have been for harassment. The majority have been in libel, as is the present claim. There are two aspects to this claim. The first complains of the listing of the claimant firm as one of the 'Solicitors from hell'. The site is, as its home page explains, devoted to complaints about 'Solicitor fraud, misconduct, incompetence, negligence, dishonesty, overcharging, corruption, embezzlement, lying/perjury and racism.'
The second aspect of the claim arises from some words which refer specifically to alleged conduct of the firm. An item referring to the claimant appears on the site in the 'complaints' section. It is headed with the firm's name and address, and the headline or subject line 'Harassment'. The item takes the form of a letter of complaint by an anonymous client of the firm. In summary, the letter accuses the firm of seeking to charge three times the quoted fee for a simple letter and then, when the client refused to pay, unjustifiably threatening legal action and engaging in a campaign of harassment.
The offending words first appeared on SFHUK. com at some point between 2 October 2014 and 15 January 2015, which is when the claimant discovered their presence there. The words complained of were still on the site at the date of the application before me in September 2015.
The claimant firm has tried, in conjunction with the Law Society, to find out the identity of the people who operate SFHUK. com, but without success. They have discovered that the WHOIS registry lists 'Anonymous Speech' as the website owners. Anonymous Speech is a proxy registrant service. It claims to move its servers from one country to another on a regular basis. It further claims to ignore court orders originating from the EU or US. It appears to be an organisation which specialises in providing proxy services to those who do not wish to be traced.
A letter of claim dated 20 February 2015 was emailed to an "info@" address of SFHUK. com, but received no response. On 24 April 2015 the Law Society and the claimant obtained a Norwich Pharmacal order against Anonymous Speech, requiring it to disclose identifying information in relation to the owner/operator of SFHUK. com. The order provided for its service by email to contact@anonymousspeech. com and abuse@anonymousspeech. com and two physical addresses, one in Tokyo and the other in Panama. There was no response. So when, on 28 July 2015, the claimants started this action claiming damages for libel and an injunction to restrain the continued publication of the words complained of, they issued their claim form against Persons Unknown.
The legitimacy of this procedure has been recognised for over a decade, since Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] 1 WLR 1633. It is necessary for the unknown persons to be identified by description, in such a way as to identify with certainty those who are included within it and those who are not. That criterion has been met here by describing the defendants as "Persons Unknown responsible for the operation and publication of the website [SFUK. com]".
There is no difficulty in principle, if an action may be brought against persons unknown, in granting an injunction to restrain those persons from carrying out acts such as the misuse of unlawfully obtained copies of a book prior to its official publication date (as in the Bloomsbury case), or harassment (as in Stone & Williams v "WXY" [2012] EWHC 3184 (QB), and Kerner v WX [2015] EWHC 128 (QB)). In each of the last two cases the defendants were described as "Persons Unknown responsible for pursuing and/or taking photographs of" the claimants at specified places on specified dates.
Although the injunctions granted in the cases just cited were all interim, the court can grant final injunctive relief against persons unknown. McGowan J did so in Novartis Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty & Ors [2014] EWHC 3429 (QB), where she concluded on the written evidence put before her that the test for summary judgment in CPR 24.2 was satisfied.
The relevant procedural safeguards must of course be applied. A difficulty that can arise in cases of this kind is that of ensuring that the unknown defendants have been duly served with the proceedings, and with any application for interim or final relief. Kerner v XY provides an illustration of some of the difficulties: see the judgments at [2015] EWHC 178 (QB) and [2015] EWHC 1247 (QB). In the present case, however, the claimant applied on 28 July 2015, the day the claim form was issued, for permission pursuant to CPR 6.15 to serve the claim form, Particulars of Claim, any other statements of case, application notices and documents in these proceedings by an alternative method, namely by email to the two addresses mentioned above. Master McCloud allowed that application to be made without service on the defendants, and granted permission. As submitted by the claimant, the email addresses are given as contact addresses by Anonymous Speech, and it is reasonable to infer that they are genuine addresses, and that emails sent to them will be brought to the attention of the domain owners.
On the evening of 28 July the claimant emailed those two addresses with the claim form, Particulars of Claim, Response Pack, Master McCloud's order and the documents that had been put before her. Certificates of service were completed the following day, pursuant to CPR 6.17(2). I am satisfied that the proceedings were duly served. Pursuant to CPR 23.10(1) the defendants had the right to apply to set aside or vary the order of Master McCloud. Paragraph 3 of the order itself pointed this out. The time limit for making such an application is 7 days after the date the order was served on the person making the application: r 23.10(2). No such application was made within that time limit, or at all. Nor did the defendants file an acknowledgment of service or a defence by the deadline for doing so which has been calculated as, and I accept was, 13 August 2015. Indeed, nothing at all has been heard from the defendants.
It is against that background that on 19 August 2015 the claimants issued the application now before me, and served it on the defendants by the method authorised by the order of Master McCloud. The application seeks, inevitably, default judgment pursuant to CPR 12.3(1) and 12.4(2). It also seeks "summary disposal of the case pursuant to section 8 of the Defamation Act 1996 with the following relief: (a) damages, (b) an injunction and (c) costs." The application is supported by a witness statement of Mr Iain Wilson, a partner in the claimant firm. Mr Wilson is not a solicitor-advocate but has prepared a skeleton argument and appeared before me on the application and I have allowed him to advance submissions.
The first issue to be addressed is whether it is right to hear and dispose of the claimant's application in the absence of the defendants. I accept Mr Wilson's submission that I should follow the approach I identified in Sloutsker v Romanova [2015] EWHC 545 (QB) [22]–[23]:
"Where a party fails to appear at the hearing of an application the court may proceed in their absence: CPR 23.11. This is a power that must be exercised in accordance with the overriding objective. Ms Page properly referred me to authority making it clear that the court should be very careful before concluding that it is appropriate to proceed in the absence of a litigant in person who is seeking for the first time to adjourn a hearing: Fox v Graham Group Ltd (26 July 2001) (Neuberger J); SmithKline Beecham Ltd v GSKline Ltd [2011] EWHC 169 (Ch) (Arnold J), [6]. That is not the situation here, however. The defendant has not sought an adjournment. …
Where a litigant fails to appear without giving a reason it is necessary to consider first whether they have had proper notice of the hearing date and the matters, including the evidence, to be considered at the hearing. If satisfied that such notice has been given, the court must examine the available evidence as to the reasons why the litigant has not appeared, to see if this provides a ground for adjourning the hearing."
The application in Sloutske...
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