Donna Desporte v Gareth Bull
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 25 August 2021 |
| Neutral Citation | [2021] EWHC 2370 (QB) |
| Docket Number | HQ17M04570 (‘The Privacy Claim’) QB2018000465 (‘The Second Libel Claim’) QA2019000028 (Appeal of the Order of Master McCloud dated 10 January 2019 (‘the Appeal’)) |
| Court | Queen's Bench Division |
[2021] EWHC 2370 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Julian Knowles
HQ17M04570 (‘The Privacy Claim’)
HQ18M02371 (‘The Libel Claim’)
QB2018000465 (‘The Second Libel Claim’)
QA2019000028 (Appeal of the Order of Master McCloud dated 10 January 2019 (‘the Appeal’))
Donna Desporte appeared in person
Chloe Strong (instructed by Howes Percival) for Gareth Bull
Hearing dates: 9 February 2021
Approved Judgment
Introduction
As will be clear from the front page of this judgment, the litigation with which it is concerned is extensive. It has also become procedurally convoluted. The papers for this hearing are substantial. After several years of litigation, there has been a lot of detail to go through. Even determining what was before me at the hearing took some working out.
The litigation involves several claims between Donna Desporte (DD) and Gareth Bull (GB). The litigation began in 2017. For convenience, I will refer to the various claims according to the nomenclature suggested by Ms Strong in her Skeleton Argument. Before explaining what matters I have to decide, it is necessary to sketch out the history. I emphasise the word ‘sketch’. At my request Ms Strong prepared a Chronology of the litigation; it runs to seven pages and has many entries. What follows is what I judge necessary for an understanding of the issues now before me.
In late 2016 and early 2017 DD and GB were in a relationship. A few years earlier GB had been the subject of media publicity when he and his then wife won several tens of millions of pounds on the National Lottery. In due course GB separated from his wife and they subsequently divorced. The relationship between DD and GB also came to an end, and later in 2017 she wrote and self-published a book (in paperback and ebook) on Amazon whose full captioned title was Google Me — No Lies: The True Incredible Heartbreaking Amazing Story of a Survivor Featuring the Relationship with £41 Million Lottery Millionaire Gareth Bull, focussing very largely on their relationship. I will refer to the original edition of the book as ‘the Book’ or ‘the original Book’.
The Book contained private information about GB, including details of his sexual relationship with DD and details about his divorce, as well as other matters. Accordingly, on 20 December 2017 he applied for, and was granted, an interim nondisclosure order (INDO) from His Honour Judge Moloney QC sitting as a High Court judge to prevent DD from disclosing four categories of private information in the Book.
Amazon were notified of the making of the INDO and removed the print and digital editions of the Book from sale on its website shortly afterwards.
In late December 2017 GB began proceedings for breach of privacy and breach of copyright, the latter in relation to photographs he had taken and which DD had included in the paperback version of the Book (but not in the ebook). This is the Privacy Claim. In January 2018 DD served a defence and counterclaim.
It is important to emphasise that the INDO only restrained the publication or communication of the four categories of private information specified in the order. It was not concerned with copyright at all.
On or about 3 January 2018 DD produced a second version of the book, Google Me No Lies Redacted: Redacted Version, which was again sold by Amazon as a paperback and an ebook. Neither version contained the photographs. GB's name was changed to ‘Gary Ball’, and there were other minimal name changes, but the private information was still contained in the book. I will refer to this as ‘the Redacted Version’.
On 3 January 2018 James Howarth, the partner with conduct of the case at Howes Percival, GB's solicitors, wrote to Amazon to inform it that the Redacted Version was being sold and that it was in breach of the INDO. Shortly afterwards Amazon removed the Redacted Version from sale.
On 5 January 2018 Howes Percival submitted standard DMCA notices to remove the original paperback version of the Book from sale on the following Amazon websites: Amazon US, Amazon Italy, Amazon Japan and Amazon Germany (Amazon required separate notices for each jurisdiction). The notices referred to the original paperback version of the Book (for which the unique ISBN number was given) and stated that the Book contained three photographs which infringed GB's copyright. The photographs were described and their page numbers in the Book were given. (DMCA stands for Digital Millennium Copyright Act, a 1998 United States copyright law. In simple terms, a DMCA notice informs a company, web host, search engine, or internet service provider that they are hosting or linking to material that infringes copyright and requires them to take it down.)
On 12 January 2018 DD received an email from Amazon saying that the original Book and the Redacted Version had been removed from sale because of ‘defamatory content’.
Also on 12 January 2018, DD served a defence and counterclaim.
In a witness statement dated 26 January 2018 Mr Howarth explained that Amazon's assertion about defamation had been wrong, and that no complaint of defamation had ever been made by his firm on behalf of GB. Mr Howarth's witness statement is exhibited as Ex VKH2 to the witness statement of Victoria Howe of 17 April 2019 for this hearing. Ms Howe is an Associate with Howes Percival. What appears to have happened is that on 19 December 2017 Howes Percival emailed Amazon at the email address defamation-notice@amazon.co.uk to notify it of the INDO application the following day. Mr Howarth said that this appeared to be the only remotely relevant email address. It would appear that through an automated process, or otherwise, this led eventually to Amazon sending DD an email saying (wrongly) that the Book contained defamatory content. Howes Percival clarified the position with Amazon.
Mr Howarth's witness statement was produced in response to an injunction application begun by DD on 23 January 2018 to restrain GB from making ‘false and malicious statements’, which she particularised in proposed amendments to her counterclaim. This application appears to have been prompted by Amazon's ‘defamation email’ to her.
Mr Howarth's witness statement contained a number of exhibits, including Howes Percival's correspondence with Amazon in early January 2018 about the Redacted Version (Ex JEH5), and this was served on DD.
On 23 January 2018 DD sought to amend her counterclaim to include complaints about false and malicious claims of defamation to Amazon on or before 12 January 2018.
On 30 January 2018 Rowena Collins Rice (sitting as a deputy High Court judge) refused DD's application for an injunction and ordered her to pay £14 000 plus VAT in costs.
Later in 2018 Howes Percival discovered that the paperback version of the Book was being sold by an American publisher Lulu Press Inc (Lulu), based in North Carolina, but the Book could be purchased from the UK (and it carried out a test purchase). On 31 May 2018 Howes Percival wrote to Lulu informing it of the INDO.
On 13 June 2018 a CCMC took place in the Privacy Claim before Master McCloud. Paragraph 1 of the Master's order provided that unless before 4pm on 11 July 2018 either DD provided security to the satisfaction of GBClaimant for the costs ordered by Rowena Collins Rice on 30 January 2018 and the costs awarded in her Order at [21], or discharged at least half of the total sum of those costs and then discharged the remaining amount by 4pm on Wednesday 8 August 2018, the counterclaim would be struck out.
DD did not comply with this order. She did not provide security and did not pay any costs.
On 18 June 2018 DD made a number of applications in the Privacy Claim. These were either refused, or held not necessary for determination, by Whipple J on 2 July 2018. Three of them were certified as having been totally without merit (TWM).
On 3 July 2018 DD issued the Libel Claim against GB in respect of the letter sent by Howes Percival to Lulu in May 2018.
Later in 2018 DD then produced a third version of the book, Google Me No Lies USA Edition (the USA Edition) which, despite its name, was still published within this jurisdiction as an ebook on Amazon's website. It did not contain any photographs. In that edition GB was re-named as ‘John Smith’, but again it contained the private information. Howes Percival became aware of the USA Edition on or about 22 October 2018. I will refer to the Redacted Version and the USA Edition collectively as ‘the Redacted Versions’.
On 13 November 2018 Howes Percival sent a letter to Amazon UK about the USA Edition requesting that it be removed from sale because it breached the INDO. They also pointed out that despite the name change, GB was still identifiable (Ex VKH10).
On 30 November 2018 DD sent a letter before claim by email to Howes Percival in respect of supposed false and malicious allegations of breach of copyright in its letter of 13 November 2018 to Amazon (Ex VKH11). DD's complaint was that Howes Percival had falsely and maliciously claimed that GB held the copyright in the text of the USA Edition (sic):
“It is expressly denied that the said work Google Me- No Lies USA Edition contained any copy written material belonging to your client Gareth Bull or otherwise, and that accordingly the comments were made in malice to induce the entity to withdraw the title, which they consequently did....
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...to comply with a rule, practice direction or court order.” 22 The rule was considered recently by Julian Knowles J in Desporte v Bull [2021] EWHC 2370 (QB) in a lengthy judgment deciding a variety of applications in related libel and privacy claims with a complicated procedural history. Th......