Qrs (on behalf of himself and in a representative capacity for all the individuals identified in Confidential Annex 1 to the Amended Claim Form in these proceedings) v Daniel Charles Beach and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Slade,Mrs Justice Slade |
| Judgment Date | 26 September 2014 |
| Neutral Citation | [2014] EWHC 3057 (QB) |
| Docket Number | Case No: HQ14X03192 |
| Court | Queen's Bench Division |
| Date | 26 September 2014 |
[2014] EWHC 3057 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Slade DBE
Case No: HQ14X03192
Godwin Busuttil (instructed by Brett Wilson LLP) for the Claimant
No appearance or representation for the Defendants
Hearing date: 13 August 2014
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.
The Honourable Mrs Justice Slade DBE
These are the reasons for granting interim injunctive relief in an Order drawn up on 14 August 2014. The Claimant, a partner in and chairman of a firm of solicitors ('the firm') applied for an interim injunction under section 3(1) of the Protection from Harassment Act 1997 ('PHA') to restrain the Defendants and the individuals the Second Defendant is alleged to represent from harassing him and the individuals he represents. The First Defendant, Mr Beach, a former client of the firm, is alleged to have posted material on websites he controls and to have provided material for a website or websites which the Second Defendant, Mr Kordowski, controls. These actions are said to constitute harassment of the Claimant and those whom he represents. These include other partners in the firm named on the websites. Interim injunctive relief was sought to obtain removal of such material from the internet and to prevent the Defendants from re-instating it. Further, interim relief was sought to restrain the Defendants from harassing other current or future partners or employees of the firm. Letters of claim sent to the Defendants on 30 July 2014 were not answered.
At the hearing of the application for an interim injunction on 13 August 2014 the Claimant was represented by Mr Godwin Busuttil of Counsel. Neither Defendant appeared or was represented. Mr Busuttil submitted that pursuant to CPR 23.11(1) the hearing of the application should proceed in the absence of the Defendants.
On 6 August 2014 solicitors for the Claimant sought to have served on each Defendant documents including the Application Notice for the interim injunction together with a Draft Order, the Claim Form, Particulars of Claim and witness statements including that of the Claimant.
In his witness statement of 8 August 2014, Andrew Kemp, process server, stated that on 6 August 2014 he went to the farm where Mr Beach lives. He was informed that Mr Beach lived in a bungalow on the farm. At 15:05 he rang on the bell outside one of two bungalows. A lady spoke to him. She confirmed that Daniel Charles Beach continued to reside at the address and would receive anything left there for his attention. The process server effected service by handing the documents to the lady after she confirmed that she would pass the papers to Daniel Charles Beach upon his return to the property.
In his witness statement of 8 August 2014 Julian Rozario, process server, stated that on 6 August 2014 he attended an address in Essex. After receiving no reply to his repeated knocking he sought to serve the Application Notice and other documents on Mr Kordowski by leaving them on the doorstep of the property. During the course of the hearing on 13 August 2014 I was told by Mr Busuttil that his solicitor had just been informed that Mr Kordowski was no longer living at the address where Mr Rozario had left the papers.
The application for an interim injunction was to be on notice. Despite a submission by Mr Busuttil that I should hear the application for relief against Mr Kordowski without notice, once it was known that service on him had not been effected in accordance with the CPR, in my judgment, as had been the Claimant's intention, he should be given notice of the substantive application. I decided that the application for an interim injunction should not proceed against Mr Kordowski without notice. However I was satisfied that there was a real risk that he may have come into possession of the Litigation Papers which were also sent to him by email in addition to being left for him at his previous address and that unless restrained he may disseminate information in the Litigation Papers which was the subject of any interim injunction granted against Mr Beach. Accordingly an Order was given on an urgent without notice basis restraining him from publishing, communicating or disclosing such papers, with the exceptions there set out.
On the evidence of Mr Kemp I was satisfied that Mr Beach had been served in accordance with CPR 6.26 with the Notice of Application, the Particulars of Claim and accompanying documents. The requirements of CPR 23.7 had been satisfied. Further I was satisfied that he had been served with the Claim Form in accordance with CPR 7.5. Mr Beach did not appear at the hearing and had given no reason for failing to do so. Having regard to the overriding objective and exercising my discretion under CPR 23.11(1) I heard the application for an interim injunction against Mr Beach in his absence.
Mr Busuttil applied for an Order under CPR 39.2(3)(a), (c) and (g) that the hearing of the application for injunctive relief be held in private on the basis that publicity would defeat the purpose of the application and that a private hearing was necessary in the interests of justice. Counsel contended that making public the identity of the offending websites, their content and the identity of the Claimant and those he represents would be likely to lead to others accessing the material causing the Claimant and those he represents further harassment.
Whilst I accepted that publication of such matters could defeat the object of the proceedings, balancing this risk with the important general rule that a hearing is to be in public, in my judgment the concern of the Claimant could be met by making a different Order. Being satisfied that it was strictly necessary to do so, pursuant to section 6 of the Human Rights Act 1998 (' HRA'), CPR 39.2 or section 11 of the Contempt of Court Act 1981 I made an Order that certain matters be withheld from the public in the proceedings before the Court. These are the name of the Claimant, the names of the individuals who the Claimant represents in these proceedings who are identified as the Listed Protected Parties in a Confidential Schedule, the name of the Claimant's firm and the domain names of the websites identified in a Confidential Schedule.
As a consequence of these Orders, I gave the Claimant permission to amend the Claim Form and Particulars of Claim. This was necessary to preserve the anonymity of the Claimant, the Listed Protected Parties and the relevant websites.
Adopting the approach endorsed by Mr Justice Tugendhat in The Law Society v Kordowski [2011] EWHC 3185 (QB), [2014] EMLR 2 in respect of the claims made in those proceedings by a firm of solicitors and a solicitor, Mr Busuttil explained that these proceedings are brought by the Claimant both in his personal capacity and, pursuant to CPR 19.6, in a representative capacity. Those represented by the Claimant were said to be (a) individuals in his firm who are named on and are being harassed by material on the websites, (b) current and future employees of the firm who are not named on the websites but who are at risk of being harassed by the Defendants in the future, particularly by the websites and (c) all lawyers and other persons acting for the Claimant in these proceedings each of whom is at serious risk of being unlawfully harassed by the Defendants.
The proceedings are brought against Mr Kordowski both personally and as a representative of all other individuals who are involved with him in the operation and publication of a website operated by him.
CPR 19.6 provides:
"(1) Where more than one person has the same interest in a claim—
(a) the claim may be begun; or
(b) the court may order that the claim be continued,
by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest."
The Third Claimant in the Law Society case, an individual solicitor, brought proceedings:
"…on his own behalf and in a representative capacity under CPR r19.6 on behalf of all solicitors in England and Wales and other individuals involved with or connected to the legal profession that are at serious risk of being named on the relevant website. It was contended that the Third Claimant had a common interest and/or grievance in relation to the litigation with those he represented, namely: preventing the harassment of individual solicitors; and preventing the breaches of the Data Protection Act 1998; and the relief sought is beneficial to all." [160]
Tugendhat J held:
"In my judgment the proceedings by the Second and Third Claimant in respect of the claims for harassment and under the DPA should be continued as they have been begun. Solicitors who have not been named have an interest in the injunction in so far it is quia timet. Consent to be represented is not required, as the authorities show. The class is readily identifiable once persons or firms are named on the website. An injunction would be equally beneficial to all. [162]
The common interest arises from the fact that the claim as pleaded is made in respect of a...
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