Isaac Sarayiah v (1) David Williams
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 23 February 2018 |
| Neutral Citation | [2018] EWHC 342 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: IHQ17/0424 |
| Date | 23 February 2018 |
[2018] EWHC 342 (QB)
Sir David Eady
(Sitting as a High Court Judge)
Case No: IHQ17/0424
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Applicant in person
Adrienne Page QC and David Hirst (instructed by Pinsent Masons) for the Respondents
Hearing dates: 17 January 2018
Judgment Approved
The applications before the court
These are Norwich Pharmacal proceedings which seem to have taken on a life of their own. The present application, dated 5 December 2017, is for the enforcement of the order made by Fraser J on 20 September 2017 and, nominally at least, for committal of the Respondents for no less than 42 supposed breaches (the last of which was added with the permission of Master Thornett on 27 October 2017). Whereas one normally thinks of Norwich Pharmacal relief as ancillary to another substantive claim, there is as yet in this instance no such primary claim. The Applicant has threatened defamation proceedings against the Respondents in respect of various publications, but so far has not even formulated any such claim even by way of letter before action. He has suggested that he will not be in a position to do so until the Respondents have fully complied with the September order. But meanwhile, despite expressing concerns about limitation on 20 September, he has allowed the 12 month limitation period relevant to the most significant publications, in November 2016, to slip by without making any claim.
There is another application before me dated 6 December 2017, but at the conclusion of the hearing on 17 January 2018 the Applicant asked me to adjourn it until the outcome of the committal application was known. That was, in part at least, because he was understandably feeling tired by that stage. The primary purpose of the second application was, under s.32A of the Limitation Act 1980 (as amended), to “disapply” or exclude the 12 month limitation period in respect of potential defamation claims, although it is quite clear from s.32A(4) that any such application should be made in the defamation proceedings themselves – not by way of a separate free-standing claim (or in Norwich Pharmacal proceedings).
The application of 6 December also seeks an order permitting the inspection of a number of original documents which have already been identified pursuant to the order of Fraser J.
The background to the dispute
The background of the dispute is as follows. The first Respondent (‘Mr Williams’) is the head “alumni relations” officer of the second Respondent (‘the University’) and had occasion in that capacity to communicate with the Applicant, who is an alumnus, in connection with complaints received about his behaviour. He attended various alumni events between the autumn of 2016 and the summer of 2017. The first relevant contact was through an email on 3 November 2016, when Mr Williams asked that he should not attend any further events because of such a complaint. On 22 November 2016, Mr Williams passed this information on to other alumni relations officers and asked that he be informed if anyone noticed that the Applicant was attempting to book for future events.
The Applicant failed to comply with Mr Williams' request and a further email was sent on 13 June 2017, asking that he should not attend the event planned for the following day or any other alumni events. Moreover, he attended the 14 June event, despite the request, but Mr Williams acted as a “chaperone” until he left of his own accord. He also went to an event on 6 July 2017 but, on this occasion, Mr Williams was unaware of it. The Applicant then made a complaint about Mr Williams to the University, having taken the view that he was acting as “judge and jury”.
The application under s.7 of the Data Protection Act 1998
On 23 June, the Applicant made a subject access request under s.7 of the Data Protection Act 1998 (‘the SAR’), to gain access to all personal data held by the University on him from January 2016 onwards. He was seeking to identify any statements by Mr Williams that might be actionable by him, and he also wanted to identify the persons to whom Mr Williams had communicated any such statement. The University's response was dated 1 August 2017 and it was confirmed by its data officer that he had been supplied, at that time, with “a copy of all personal data to which you are entitled under [the Act], as per your request”. The Applicant was not satisfied and sent what was described erroneously as a Part 18 request: at that time, and indeed until today, there have been no proceedings to which CPR Part 18 could apply.
What he was seeking was information for the purpose of commencing libel proceedings against Mr Williams and the University, who were characterised as “prospective defendants”. Mr Williams was said to have made “very serious allegations” which were described as “purely malicious and designed to cause me harm and distress”. No evidence has been forthcoming at any time to support that serious allegation, or to explain why Mr Williams should have been so motivated. Nevertheless, the University responded on 22 August, explaining that the earlier SAR response had included everything he had requested in so far as it was in its possession.
The Applicant's decision to apply for a Norwich Pharmacal order
Next, on 7 September 2017, the Applicant made his application for a Norwich Pharmacal order, on the basis that it was necessary to enable him “to plead defamation proceedings against the Defendants”. He summarised his complaint, in effect, as being that the University was vicariously responsible for the malicious publication of defamatory allegations by Mr Williams to various of its employees. He required all relevant information and documents, and in particular the nature of the allegations made against him. It was necessary, he said, because hitherto the University had failed to comply with his legitimate requests (i.e. the SAR and the “Part 18 request”).
The documents previously disclosed to him contained the following allegations made about him by Mr Williams or other employees:
• “Following a complaint from a female member of staff … Mr Sarayiah has been asked to no longer attend University events” (Mr Williams' email of 3 November 2016 to internal University members of staff).
• “… I am still intending to act on your recommendation that someone should attend the event to chaperone Mr Sarayiah in case he does turn up, and that it would not be acceptable for the chaperone to be a female member of staff” (likewise).
• “I have spoken to [the University Secretary] and she is in agreement with the view that the University has an obligation to both staff and guest ( sic) at Durham University functions/events to ensure that it is a safe environment … I agree that in terms of chaperoning it would not be possible to do so at every event – but in terms of mitigation the University would at least be seen to be taking appropriate reasonable action where it becomes aware of inappropriate alumni” (Email from University lawyer of 15 June 2017 to internal members of University staff, including Mr Williams).
I pause here to note that each of these statements is capable of being rendered in a form which could be pleaded in defamation proceedings as words complained of. Thus, if he wished to commence proceedings, he was in a position to do so before the expiry of the limitation period. The circumstances clearly raise, however, the possibility of a formidable defence of qualified privilege at common law.
The terms of the order relating to the identities of the female complainants
Following a hearing on 20 September 2017, Fraser J granted an order with which the Respondents plainly had to comply to the best of their ability. There was no formal judgment, but I have seen a transcript of what transpired on that occasion, which indicates the underlying reasoning of the Judge. In certain respects, the order as sealed differed significantly from the draft which the Applicant had placed before the court.
The most significant aspect of the sealed order is that contained in paragraph 1(3). The Applicant describes it as being “at the core” of the order. It is concerned with the question of whether the University should reveal the identities of the seven women (all members of staff) who had complained about the Applicant's behaviour or manner towards them. He contends that the order requires that they be revealed and he alleges that the University is in contempt because it has not yet done so. I regard this as a very serious matter and it is important to be clear as to exactly what happened and how the sealed order came to be drawn in the form it now takes. The Defendants (i.e. Mr Williams and the University) were to produce to the Applicant inter alia:
“The exact wording of any complaints made against the Claimant by any other person [and their identity].”
The wording thus appeared still to be in draft form and inchoate – at least in regard to paragraph 1(3). It would have been sensible to approach Fraser J through his clerk with a view to clarification (if necessary reminding him of what had taken place at the hearing by providing the transcript).
To my mind, the presence of the square brackets inevitably leads to ambiguity, as would be the case in any judgment or order. Are the identities to be revealed or not? Since the order is ambiguous as it stands, it is impossible for the Applicant to discharge the burden of proving a breach to the criminal standard: see e.g. the well known words of Jenkins J (as he then was) in Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67, at 71 (“… a Defendant cannot be committed for contempt on the ground that upon...
To continue reading
Request your trial
-
AQR Capital Management, LLC v The London Metal Exchange
... ... to have such hard-edged rules and I was referred to one case, Sarayiah v Williams [2017] EWHC 2915 (Ch) , at [28], where Jay J was of the view ... of Market Risk, LME), Jamie Turner (Head of Market Structure, LME), David Abrahams (Head of Pre-Trade, LME), Maxine Norris (Head of Regulatory ... ...
-
Stokoe Partnership Solicitors v Dechert LLP
... ... Investigations Limited (5) Dechert LLP (6) David Neil Gerrard Defendants and (1) Franz Wild ... to be determined in light of the facts of the particular case: Sarayiah v Royal and Sun Alliance [2018] EWHC 3437 (Ch) at [36]; and ... ...
-
ADM International Sarl (a company incorporated in Switzerland) v Grain House International S.A. (Formerly known as Compagnie Agricole De Commercialisation Et De Conditionnement Des Cereales ET Legumineuses S.A.) (a company incorporated in Morocco)
...standard; this standard applies even where the applicant seeks only a non-custodial penalty (i.e. a fine): e.g. Sarayiah v Williams [2018] EWHC 342 (QB) per Sir David Eady at [30] (sitting as a High Court 37 This standard is frequently cited as being “ beyond a reasonable doubt”. This is o......
-
The Kingdom Bank Corporation v Moorwand Ltd
... ... the case of AQR Capital v LME [2022] EWHC 3313 (Comm) and Sarayiah v Williams [2017] EWHC 2915 (Ch) where the court concluded that there ... ...
-
Norwich Pharmacal Orders - Sarayiah v Williams
...Alert - [2018] EWHC 342 (QB) Judge refuses to enforce Norwich Pharmacal order following errors in The applicant obtained a Norwich Pharmacal order (NPO) against the respondents. He alleged that the NPO was breached by the respondents and he sought to enforce the NPO by committal proceedings......