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 (1) Daniel Charles Beach (First Defendant/First Respondent) (2) James Bloomfield (Second Respondent)
| Jurisdiction | England & Wales |
| Judge | Sir David Eady |
| Judgment Date | 22 May 2015 |
| Neutral Citation | [2015] EWHC 1489 (QB) |
| Docket Number | Case No: HQ14X03192 |
| Court | Queen's Bench Division |
| Date | 22 May 2015 |
[2015] EWHC 1489 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir David Eady
Sitting as a High Court Judge
Case No: HQ14X03192
Godwin Busuttil (instructed by Brett Wilson LLP) for the Claimant
The Respondents did not appear and were not represented
Hearing date: 30 April 2015
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.
On 30 April 2015, I heard applications to commit the Respondents for contempt of court with reference to alleged breaches of court orders. I had ruled that the matter should proceed in their absence, having been satisfied that they had chosen not to appear. There was no doubt that they had been notified of the proceedings and had made no response; in particular, there had been no suggestion that an adjournment was required either on health grounds or because of a need for further time to prepare. (I note that on 22 January 2015 Warby J, having granted an adjournment unopposed on that occasion, had then prescribed the procedure to be adopted if any further adjournment was to be sought on grounds of ill health. No such steps were taken.)
Prior to my ruling on that matter, Mr Busuttil had properly referred me to relevant modern authorities as to the circumstances in which it may be appropriate to take such an exceptional course: R v Jones (Anthony) [2003] 1 AC 1, R v Jones; R v Purvis [2001] QB 862, Hammerton v Hammerton [2007] EWCA Civ 248 and Sanchez v Oboz [2015] EWHC 235 (Fam). He pointed specifically to the considerations addressed by Cobb J in Sanchez at [4]–[5], and I took those factors into account in the light of the evidence before the court in the present case.
My conclusion that the Respondents had chosen not to appear seems to be confirmed by a video uploaded on or about 17 April this year, and displayed on one of the websites recently set up, in which the First Respondent is shown setting fire to the box of court bundles sent to him for the purposes of the hearing. They were apparently completely destroyed. The Second Respondent posted a copy of the video on YouTube on 17April. (I make clear that this conduct is not relied upon in itself to support the contempt applications, as no reference is made to it in the Grounds which, of course, pre-date it. Nevertheless, it was legitimate to have regard to this evidence, contained in Mr Wilson's third affidavit, in determining the preliminary issue of whether it would be appropriate to proceed in the absence of the Respondents.)
As appears from the title of the case, there was originally a Second Defendant, Mr Kordowski, but the claim against him was settled last December and he plays no further part in the proceedings.
The Claimant is a solicitor, who sues not only on his own behalf but also in a representative capacity on behalf of a number of "protected parties", in respect of what is alleged to have been a continuing campaign of harassment via the internet. Steps were taken at the outset to protect the Claimant and those he represents by the grant of anonymity. For the same reasons as those given by the Judges who have been seised of the matter so far, I confirmed that such protection should continue on the present applications. Accordingly I shall not identify anyone by name in the judgment and will attempt to avoid giving any information (e.g. by revealing the address of any of the relevant websites) which could lead to their identification.
There are now two applications before me. The first (dated 10 December 2014) related to the First Respondent only and concerned alleged breaches of an interim order made by Slade J on 14 August of last year. The second application relies upon alleged breaches of the final order (dated 16 September), which was made by Stuart-Smith J following the grant of judgment in default.
In the second application, it is not only alleged that the First Respondent has breached the order in a number of respects, but also that the Second Respondent is liable for criminal contempt. He was not a party to the original claim for harassment, and the order was thus not made in relation to him. The case is based on the long established principle that a non-party can be liable for criminal contempt through his actions in encouraging or assisting a party to breach a court order, and/or by setting out deliberately to undermine the court's intention in granting the order in question: see e.g. Att-Gen v Newspaper Publishing Plc [1988] Ch 333 and Att-Gen v Times Newspapers Ltd [1992] 1 AC191.
The procedure to be adopted in relation to such a non-party respondent is laid down now by CPR 81.10(2), which stipulates a Part 23 application notice. This procedure has been correctly complied with in the present case.
It is well established that the Claimant is confined on any committal application to reliance upon the grounds expressly identified for the purposes of the relevant application. Moreover, it is for the Claimant to establish the conduct relied upon to the criminal standard of proof (whether the contempt alleged is to be classified, technically, as civil or criminal in nature). Mr Busuttil took time, therefore, carefully to go through each of the grounds relied upon here, in relation to each of the Respondents, and took me to the evidence in order to demonstrate that this burden was discharged. None of the witnesses went into the witness box to confirm the evidence contained in the relevant affidavits, but they were present and available for cross-examination had either of the Respondents wished to make such an application. Obviously, in the circumstances, none of the evidence was opposed or challenged.
I was satisfied that all relevant documents have been served upon the Respondents in accordance with the rules.
I now turn to the first application and the breaches alleged to have been committed by the First Respondent in relation to the injunction granted by Slade J last August.
Paragraphs 5, 6, 8 and 11 of the interim order were, so far as material, in these terms:
" 5 Until the conclusion of the trial of this action or further Order of the Court in the meantime:
5.1 the First Defendant must not (whether by himself, his servants or agents or otherwise howsoever) harass … the Claimant or any person who the Claimant represents in these proceedings;
5.2 in particular (and without limiting the generality of the foregoing), the First Defendant:
5.2.1 must cease forthwith from operating or publishing any of the websites identified as items 1 to 5 in Confidential Schedule B to this order by removing them from the internet in their entirety and not reinstating them to the internet;
5.2.2 must forthwith cause to be removed from the website identified as item 6 in Confidential Schedule B to this order the entirety of his posting on that website that refers to the Claimant and the Claimant's firm [and] must not reinstate that material or any similar material to that website;
5.2.3 must not (whether by himself, his servants or agents or otherwise howsoever) post or cause or permit to be posted anywhere on the internet any material (verbal or pictorial) which:
(i) lists, identifies or otherwise refers to the Claimant or any person who the Claimant represents in these proceedings or the Claimant's firm; or
(ii) is published in juxtaposition with any pre-existing material on the internet that identifies or otherwise refers to the Claimant or any person who the Claimant represents in these proceedings or the Claimant's firm;
…
6 The First Defendant must by 4 p.m. on 21 August 2014 disclose and produce in writing to the Claimant's solicitors:
6.1 the identity of each and every person who to his knowledge has been involved since 1 August 2011 in operating, running and/or publishing the website identified in item 6 in Confidential Schedule B to this Order (in each case, disclosing to the Claimant's solicitors the following details if and in so far as they are known to him: (i) the person's full name; (ii) his or her address; (iii) his or her telephone or mobile phone number; (iv) his or her email address; (v) his or her IP address; (vi) any other contact details); and
6.2 all information and documents within his control evidencing the identity of any person who has been involved since 1 August 2011 in operating, running and/or publishing that website.
…
8 The First Defendant and any third party given advance notice of the Application … and any person who the Claimant puts on notice of this Order must not, except with the express prior permission of the Court, publish or communicate or disclose or copy or cause to be published or communicated or disclosed or copied to any third party by any means whatsoever any document related to or disclosed in or generated in the course of or in connection with these proceedings ('the Litigation Papers') other than (a) this Order (excepting the Confidential Schedules thereto) and (b) any public judgment of the Court in these proceedings.
PROVIDED THAT the First Defendant and any third party given advance notice of the Application and any person who the Claimant puts on notice of this Order shall be permitted to copy, disclose and deliver the Litigation Papers (or any of them) to any solicitor or barrister duly instructed by any such person for the purpose of these proceedings.
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11 The First Defendant...
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