Shakil Khan (formerly JMO) v Tanweer Khan (formerly KTA)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin,The Honourable |
| Judgment Date | 15 February 2018 |
| Neutral Citation | [2018] EWHC 241 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ18M00500 |
| Date | 15 February 2018 |
[2018] EWHC 241 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: HQ18M00500
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC and Aidan Wills (instructed by Sheridans) for the Claimant
The Defendant appeared in person and represented himself
Hearing date: 9 February 2018
This is a claim for harassment. It is an unfortunate family dispute; the Claimant and Defendant are brothers. In summary, the Claimant complains that he is being harassed by the Defendant's sending of a large number of emails to him and others; some 70 emails sent over a period of around 9 months. The Claimant's solicitor, in a witness statement, has described the alleged campaign against the Claimant as “ the sending of abusive, threatening and defamatory communications to [the Claimant] …, to his friends and business associates and third parties”.
The Claim Form was issued on 7 February 2018. It contains only a claim for breach of the Protection from Harassment Act 1997. Particulars of Claim have not yet been served. At a hearing in private, he was granted permission by Master Yoxall to anonymise both himself and the Defendant. Also, on 7 February 2018, the Claimant issued an Application Notice seeking an interim injunction to restrain the Defendant from further acts of harassment. The injunction application was supported by the Claimant's witness statement; the material parts of which were set out in a confidential exhibit. Notice of the Application was given to the Defendant. The injunction application came before me, as Interim Applications Judge, on 9 February 2018. The Defendant attended the hearing and represented himself. I reserved judgment.
Hearing in private
The Claimant applied at the commencement of the hearing for an order that the hearing be in private. I heard submissions and granted the application but indicated that I would review the position after judgment was given. The principal basis on which the application was granted was that, because of the earlier order anonymising the parties, a hearing in open court (and the evidence and submissions that it was obvious would be made) would have destroyed the anonymity. The parties' identities would have been fairly obvious to well-informed observers (and others would have been able to discover their names with little difficulty). As can be seen from the title of this judgment, I have discharged the anonymity order. My reasons for doing so are set out below (paragraphs 81 to 96 below). This judgment is given in open court.
The parties and other central individuals
In his witness statement, the Claimant describes himself, simply, as an entrepreneur and investor, specialising in tech start-ups. He says that he is an investor in over 20 companies, including Spotify, and is also the co-founder of Student. com. Daniel Ek is the founder and Chief Executive Officer of Spotify (“Mr Ek”), is said by the Claimant in his witness statement to be “ a long-standing and close personal friend”. Jim Breyer, of Breyer Capital, is a venture capitalist and also significant investor in Spotify (“Mr Breyer”).
The Defendant submits that the Claimant is much more involved in the operations of Spotify than the picture painted in his witness statement. On the evidence presented by the Defendant, it is clear that the Claimant has played a very prominent public role in relation to Spotify, going far beyond the role of investor. In his LinkedIn profile, in September 2017, the Claimant described himself as “ Head of Special Projects” at Spotify, a post he had occupied since 2008. In an article in Wired magazine in July 2009, the Claimant (described as Mr Ek's “ second-in-command” and “ consigliere”) is quoted as saying that working with Mr Ek “ feels like being Bill Gates' roommate”. On 20 May 2014, the Claimant was interviewed at Cass Business School of the City University, London by Matt Cowan, Tech writer for Wired. A recording of the full interview is available on YouTube, published by Thomson Reuters. Dr Andrew Fletcher, Director of Thomson Reuters Labs, wrote an article, based on the Claimant's interview, that was published on the Thomson Reuters website. Under the heading, “ So what does Shak do as the Head of Special Projects at Spotify?”, the article states:
“He is the eyes and ears of the CEO, building relationships in countries two years before Spotify launches there. He is the advance party. Negotiations with the music industry were hard, although they were helped by starting with Sweden as a test case, since it is not one of the big markets internationally. If they had tried to first launch in the U.S. it would have never happened. Instead momentum was built by growing from Sweden to Norway to Finland to the UK… Influential backers such as Sean Parker also helped, an intro which Shak made as part of his role to make sure the product was seen by the right people. Sean was introduced to the product at a barbecue by someone who had early access. Suddenly Shak was getting long emails from Sean saying how great he thought Spotify was. At first Shak didn't know who he was, but when he found out he put him in contact with Daniel [Ek] and the relationship sprung from there.
Li Ka-shing of Horizon Ventures had been an early investor in Spotify and he suggested that Shak meet Nick d'Aloisio, founder of Summly (which was later acquired by Yahoo). Shak met him and was struck by the amazing IQ and EQ, and quickly became convinced the 16 year old was exceptional. When he gave Nick no nonsense feedback during their first meeting, rather than running away, Nick asked Shak to be his mentor and as a result they traveled together around the tech event circuit, including an introduction to Yahoo CEO Marissa Mayer at DLD Munich.”
It appears to me that the Claimant plays a very significant role at Spotify; certainly, that is the public profile he appears to have cultivated and to enjoy. The Defendant submitted that the Claimant is a de facto director, the “ second-in-command”, even co-CEO, of Spotify but that he is hiding that role. He points to the fact that, in January 2018, the Claimant amended his LinkedIn profile to amend the title of the position at Spotify he had held, from 2008, from “ Head of Special Projects” to “ Investor and Advisor”. Mr Tomlinson QC told me that the Claimant was a “ trusted advisor” to Spotify, but that he had never been employed and was not on the board. I need not resolve this issue on this application, but I do find it surprising (particularly given the context of the dispute that will become apparent) that, in his witness statement, the Claimant described himself only as an “ investor” in Spotify, and Mr Ek simply as a “ close personal friend”.
The Defendant is currently the Head of Credit & Emerging Markets Financing of Unicredit Bank, based in the UK. In the evidence, the Defendant has described himself as a senior director and Chief Operating Officer with “ cross-product expertise in financial markets… with a proven track record in leading start-up and established businesses in asset management, hedge funds and investment banking”. From his CV, it appears that the Defendant has spent his career working in financial markets and asset management. From his submissions to me in Court (which were focused, measured and relevant), it is clear that the Defendant is very intelligent and experienced in his field.
The alleged harassment
The allegedly harassing emails number over 70 all of which have been exhibited to the Claimant's witness statement. Although I have read them all, in the interests of proportionality, Mr Tomlinson QC has rightly concentrated on the key features and incidents upon which the Claimant relies.
The Claimant has set out in his witness statement what he believes to be the origins of the dispute with his brother. In late 2016, the Defendant was developing an online sales platform for cars, Carbaya. On 11 November 2016, he sent his business plan to the Claimant. In it, there was a section headed “ Advisory Board Profile”. On page 28 there was a full-page profile of the Claimant, together with a photograph, describing him as the Advisory Board Chairman. The Claimant acknowledged receipt of this business plan. No complaint was made by the Claimant, at that stage, that he was being so visibly associated with Carbaya.
In his witness statement, the Claimant says:
“On 2 May 2017 I became aware that my name was being used by the Defendant in connection with Carbaya. Several articles appeared in the press which suggested that I had co-founded or invested in Carbaya with the Defendant and that I was heavily involved in the initiative… In fact, I had nothing to do with Carbaya. I had previously introduced the Defendant to a variety of people, to try to give him a helping hand…”
When I read this, I got the impression that the Defendant had used the Claimant's name and profile without his consent and that he had stumbled across the fact that he had done so. In fact, it is plain from WhatsApp messages that I have been shown by the Defendant, it was the Defendant who had sent the press articles to the Claimant. It is also clear that the Defendant believed that he had the Claimant's blessing. It may be that the Claimant had not read (or read closely) the business plan that he had been sent. Solicitors were involved, but matters resolved themselves with the various articles being taken down. It is clear that this episode caused resentment on the part of the Defendant.
On 4 May 2017, the Defendant wrote to the Claimant's solicitors raising a number of issues, including a complaint about the sale of the family home and the suggestion that...
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