Merlin Entertainments LPC (on behalf of its officers, employees and agents) and Others v Peter Cave
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 25 September 2014 |
| Neutral Citation | [2014] EWHC 3036 (QB) |
| Docket Number | Case No: HQ14X03161 |
| Court | Queen's Bench Division |
| Date | 25 September 2014 |
[2014] EWHC 3036 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Elisabeth Laing
Case No: HQ14X03161
Mr Ashworth QC and Ms Ruth den Besten (instructed by Knights Solicitors LLP) for the Claimant
Mr Strauss QC acting Pro Bono for the Defendant
Hearing dates: 26 August and 28 August 2014
Mrs Justice Elisabeth Laing DBE:
Introduction
The Claimants are four companies and one individual. The companies are involved in running amusement parks, including Chessington World of Adventures ("the Park"). I will refer to them as "Merlin" (first Claimant), "MAOL" (the second Claimant), "Chessington" (the third Claimant) and "Merlin Limited" (the fourth Claimant). Merlin owns several amusement parks. Merlin also owns Chessington, MAOL and Merlin Limited. The fifth Claimant is the Chief Executive Officer of Merlin Limited and a director and employee of Merlin.
This is an application by the Claimants for an interim injunction restraining the Defendant, Dr Cave, from (in short) sending mass emails and setting up websites in which he campaigns on the issue of safety in theme parks, and criticises the Claimants and other individuals (sometimes in intemperate and hurtful terms). As Mr Strauss QC (for Dr Cave) submitted, this case raises an important issue about the lawfulness of campaigns which (if their content is correct), are in the public interest. I accept that the issues which Dr Cave raises are matters of public interest. 1.6 m people visit the Park every year, and many more visit the other theme parks. The fact that the Claimants are private companies does not affect this conclusion.
As he submitted, campaigners may, in the course of their activities, annoy, irritate, and upset companies and individuals. To what extent should those activities be restrained by the civil courts, before the question whether they are justified has been decided? To what extent are they criminal offences? Dr Cave's main tool has been the internet: websites and email. These are both very effective ways of getting a message across to many people. He admits that he has used a number of different email addresses, in order to circumvent spam filters. Are the Claimants, who contend that Dr Cave's communications with the public and with their employees are defamatory, and in breach of confidence, entitled to stop him, before any trial, by relying on the statutory tort of harassment, or should they, instead, have to rely on their remedies for defamation and breach of confidence?
The Claimants' claim is that Dr Cave is harassing the officers, agents and employees of the first four Claimants, and the fifth Claimant, Mr Varney. The Claimants say that they represent three classes of unnamed individuals: the officers, employees and agents of the corporate Claimants. Mr Nicholas Strauss QC, whom I have already mentioned, acted pro bono for Dr Cave, and I am very grateful to him for his help. I am also grateful to Mr Ashworth QC and Ms Den Besten for their lucid submissions. They argued the Claimants' case.
The Claimants' case is that Dr Cave's concerns about the Park are baseless. They say that his emails and websites are scurrilous and are intended to harass the officers, employees and agents of the corporate Claimants. Dr Cave's case is that, in short, his concerns about safety are justified, and he is doing no more than to exercise the right conferred by article 10 of the European Convention on Human Rights ("the ECHR") to freedom of expression. He also says that any claim to an interim injunction to prevent him from defaming the Claimants must fail, because, he says that his criticisms are justified. They cannot be in any better position because they frame their claim in harassment.
Dr Cave, who was not then legally represented, gave undertakings at a hearing before Lewis J on 11 August 2014. The return date was Tuesday 26 August. The hearing did not finish on 26 August. It resumed on the afternoon of 28 August and continued until about 7.30 pm on 28 August 2014. I indicated that I would reserve my judgment at the end of that hearing. Dr Cave, through his counsel, agreed that his undertakings should continue until judgment.
Mr Strauss QC made three main submissions.
(1) He accepts that the Claimants do not have to identify every individual whom they represent. But, he submits, the Claimants do have to show that one or more individuals in one of two classes has a cause of action. Those two classes are the individuals named by Dr Cave in his communications, and the recipients of his mass emails (in particular, the employees of the corporate Claimants). He submits, in relation to both classes, that the conduct of which complaint is made is not harassment.
(2) He submits that however much distress is caused by conduct which is potentially defamatory, that conduct should not be restrained by interim injunction, if Dr Cave would seek to justify it at trial. That would infringe the rule in Bonnard v Perryman [1891] 2 Ch 269. That rule is that, in general, the court will not restrain by interim injunction the publication of statements which are said to be defamatory, but which a defendant will seek to justify at trial.
(3) In any event the terms of the order sought are unacceptably wide and vague. The parties agreed that I should deal with this issue after judgment.
There are two further issues.
(1) What test should I apply in deciding whether or not to grant interim relief? Is it the test in American Cyanamid v Ethicon [1975] AC 396, which usually applies when a claimant asks for an interim injunction, or is it the more stringent test which applies as a result of section 12(3) of the Human Rights Act 1998 ("the HRA")?
(2) Is Dr Cave prevented, by a decision of Sharp J (as she then was), from arguing that the statements he has made in the course of his campaign are justified? I shall refer to this as the estoppel issue.
The facts in outline
It seems to be common ground that in June 2012 there had been an accident at the Park when a child called Jessica Blake had fallen and been seriously injured. Dr Cave and his company, Peer Egerton Limited ("PEL") were retained in late 2012 to provide a condition survey report of the Park, for a fee of £46,000. This was a considerable piece of work, as Dr Cave explains. Mr Strauss pointed out in his submissions that the Claimants have not explained why the Claimants chose a very small non-specialist company for such an important task. The retainer required PEL to keep any report confidential and to assign the intellectual property in any work done to Merlin Limited. The work was done in November and December 2012. On 24 January 2013, the board of MAOL approved the work, including work required to be done urgently, at a total cost of cost of £4.6 m. On any view, then, as at January 2013, the board of MAOL accepted that a significant amount of remedial work needed to be done at the Park, some of it urgently.
The Claimants say that PEL was paid in full for this work, except for a sum of about £3000, which, the Claimants say, was not paid to him because of a computer error. Dr Cave then sent a letter before claim, claiming £158,687.82. The two sides negotiated, and, the Claimants say, Dr Cave indicated that he would accept £14,000 in settlement of his claims. He then issued proceedings claiming £83,565.38. The Claimants' case is that the proceedings were issued for the collateral purpose of campaigning about the safety of the Park.
PEL, represented by Dr Cave, also sought an injunction to stop the Park re-opening after its winter break. Sharp J described this (judgment of 18 March 2013, paragraph 15) as an application to obtain relief for damage caused to PEL's reputation if MAOL opened the Park on the basis of a survey report which PEL had been co-erced into changing. PEL claimed that damages would not be an adequate remedy as the consequences of opening the Park in an unsafe condition could be loss of life and serious damage to PEL. She described the terms of the order sought in paragraph 16 of her judgment. It included provision for the Park to be closed until inspected by competent external engineers who certified that the issues identified in the PEL report had been addressed and until witness statements from such engineers showed that the Park was safe. PEL also wanted its report to be returned to it and not to be used as a justification for not dealing properly with safety issues as the Park, and any third parties who had been told about the report to be told that the report was unreliable as it had been modified on Chessington's instructions.
Sharp J had difficulty understanding why the application was being made. She recorded that Dr Cave regretted signing off the survey report. He had lost faith in the bona fides of the claimant companies and in what they had said they would do about the areas of concern identified in PEL's report (judgment, paragraph 17). She went on to say that the evidence Dr Cave had adduced "does not ground any right to the relief sought by the injunction". She referred to evidence from the Claimants which showed that the work identified in the report had been approved by...
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