Jane Clift v Martin Clarke

JurisdictionEngland & Wales
JudgeMrs Justice Sharp
Judgment Date18 February 2011
Neutral Citation[2011] EWHC 1164 (QB)
CourtQueen's Bench Division
Docket NumberCase No: IHJ/11/0011
Date18 February 2011

[2011] EWHC 1164 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mrs Justice Sharp

Case No: IHJ/11/0011

Between:
Jane Clift
Claimant/Applicant
and
Martin Clarke
Defendant/Respondent

MS Clift appeared in person

MS S Palin (instructed by Associated News Ltd) appeared on behalf of the Defendant

Approved Judgment

No of words: 4,899

No of folios: 69

Mrs Justice Sharp
1

This is an application for an order pursuant to the Norwich Pharmacal jurisdiction for disclosure of any information that may assist in the identification of two users of the Defendant's website who posted comments in June 2009 in respect of an article reporting the outcome of the Claimant's successful libel action against her local council.

2

The Defendant is employed by Associated Newspapers Limited ("ANL") as the editor of its website, known as Mail Online.

Background facts

3

The background facts are as follows. On 25 June 2009 the Claimant won a claim for libel against Slough Borough Council arising out of the publication of the Claimant's name on the Council's Violent Persons Register, which was circulated to a large number of Council employees and partner organisations. The jury awarded the Claimant damages of £12,000.

4

On 26 June 2009 the Daily Mail published an article in its print edition, reporting the outcome of the Claimant's court case entitled "I was turned into a pariah for complaining about a yob". An almost identical version was published on Mail Online with the same headline. The day before that, that is on 25 June 2009 when the outcome of the trial was announced, Mail Online published an earlier version of the article, with the headline "Woman branded 'potentially violent' by council after complaining about damaged flowerbed."

5

Readers of Mail Online are encouraged to comment on articles and also on the comments of other readers. A section appears beneath the articles for their comments to appear. The Claimant's current complaint concerns 2 out of the 40 comments which were posted by readers of Mail Online in the "Comments" section appearing beneath the articles to which I have referred.

6

On 13 June 2010 the Claimant complained to the author of the articles, who was a reporter for the Daily Mail, about the two comments appearing beneath his article on Mail Online. I should add there is no complaint made by Ms Clift at all about any of the articles published by ANL itself.

7

The comments complained of by the Claimant and which are the subject of this application are as follows:

(1) "My, I didn't realise the cost of flowers nowadays. This woman would have been better finding another way to enrich her existence… thereby saving lots of public money."

This comment was posted by "Bob" of "Windsor, England" on 25 June 2009 at 12.39, that is a matter of hours after the article which it related to was published.

(2) "I am surprised to see how many people on here seem to think it is OK for members of the public to issue death threats against council employees. With attitudes like that is easy (sic) to see why so many doctors, nurses and socilal (sic) workers are physically and verbally abused each year."

This comment was posted by "Chris Jones" of "Leeds" on 26 June 2009 at 12.34.

8

On 16 August 2010 the Claimant issued a claim form and application notice, asking for an "Order for the disclosure of any information known to the Defendant that would or may assist in the identification of the authors of the words complained of published on the Defendant's website." The Claimant says she asked for this information for the purpose of bringing defamation proceedings against the persons presently identified as "Bob" and "Chris Jones".

9

The Defendant/ANL objects to the application. On 7 December 2010 the Defendant wrote to the Claimant, setting out ANL's position. The letter said (i) that ANL's privacy policies oblige the Defendant to respect the privacy of users of the website's information and that he is, therefore, unable to disclose the information requested without an order from the court; (ii) that ANL requires users to give a name, town and/or country and email address in registering with the site, that none of this information is verified by ANL, that the information held in respect of the name, town and/or country for these posters is what appeared in the postings and that the only additional information ANL therefore holds is the poster's unverified email addresses; (iii) that the Defendant did not consider the postings to be defamatory, alternatively if they are defamatory they are plainly fair comment. The Claimant was also asked to provide her confirmation that she would pay the Defendant's reasonable costs of the application and of complying with any order made.

10

In her witness statement dated 26 January 2011, prepared for the purposes of this application, the Claimant sets out her position. In short, she maintains that the postings are defamatory of her, that she only discovered the existence of the postings in June 2010 and that she should not bear any of the costs of compliance or of the application itself.

The Law: Norwich Pharmacal Jurisdiction

11

I turn next to the law. The general principles relating to the Norwich Pharmacal jurisdiction are well known. Three conditions must be satisfied before a court exercises the power to make a Norwich Pharmacal order: (i) a wrong must have been carried out, or arguably carried out, by an ultimate wrong-doer; (ii) there must be the need for an order to enable action to be brought against the ultimate wrong-doer; and (iii) the person against whom the order is sought must (a) be mixed up in the wrong-doing so as to have facilitated it and (b) be able, or likely to be able, to provide the information necessary to enable the ultimate wrong-doer to be sued. See the judgment of Lightman J in Mitsui Ltd v Nexen Petroleum Ltd [2005] EWHC 625 (Ch) at [21].

12

Ms Sarah Palin, who appears on behalf of the Defendant/ANL, draws my attention in that context to what is said in the notes in the White Book to CPR 31 at paragraph 31.18.5 where it might be thought that the condition which I have referred to at (i) above is put in slightly differently. There it is said:

"The first requirement of the Norwich Pharmacal jurisdiction is that a wrong must have been carried out or believed to be carried out." (Emphasis added)

13

She refers in that context to the case of P v T Ltd [1997] 1 W.L.R. 1309. For present purposes, I do not think the precise wording of the matter set out at (i) is material to the decision I have to make but I would adopt, if necessary, the lower threshold in favour of Ms Clift.

14

Once the court is satisfied that these three conditions have been met, it nevertheless retains a discretion as to whether or not to order disclosure. In Totalise Plc v The Motley Fool Ltd [2001] EMLR 29 at [27], Owen J identified a number of matters which are relevant to the exercise of the court's discretion: (i) The strength of the claimant's prima facie case against the wrong-doer; (ii) the gravity of the allegations; (iii) whether the wrong-doer was waging a concerted campaign against the claimant; (iv) the size and extent of any potential readership; (v) the fact that the wrong-doer was hiding behind anonymity which the website allowed; (vi) whether the claimant had any other practical means of identifying the wrong-doer; and (vii) whether the defendant had a policy of confidentiality for users of the website.

15

Owen J ordered the Respondent to pay the costs of the application and in Totalise Plc v The Motley Fool Ltd [2001] EWCA Civ 1897; [2002] 1WLR 1233, the Court of Appeal reversed his decision on costs only. In the course of their consideration of that issue, it was necessary to consider the circumstances which may be relevant to a respondent legitimately refusing to hand over voluntarily, details it was subsequently ordered to provide pursuant to a Norwich Pharmacal application. Ms Palin relies in particular on what was said by Aldous LJ giving the judgment of the court at paragraphs 23 to 30, the effect of which may be summarised as follows:

(i) Where website users have a reasonable expectation that their personal information will not be disclosed, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, as encompassed by Article 8 of ECHR, especially when that individual is not before the court.

(ii) Disclosure of information pertaining to the identity of third parties also engages their rights under the Data Protection Act 1998 (the DPA). In accordance with Schedule 2 of the DPA no order for disclosure of a person's identity should be made under the Norwich Pharmacal jurisdiction unless the court has considered the rights, freedoms and legitimate interests of that data subject, and whether having regard to those rights, the disclosure is warranted.

(iii) It is perfectly legitimate for a party which hosts postings provided by readers, and which reasonably agrees to keep those readers' details confidential and private, to refuse to voluntarily hand over such information. It is not the role of the party which holds the confidential information to determine whether to hand over that information to third parties. For example, a court may decide to refuse disclosure of the identity of a data subject where a publication, though technically defamatory, was visibly the product of a deranged mind or was so obviously designed merely to insult as not to carry a realistic risk...

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