Simon Bard Parkes v Toby Hall
| Jurisdiction | England & Wales |
| Judge | Mr Justice Murray |
| Judgment Date | 04 April 2023 |
| Neutral Citation | [2023] EWHC 794 (KB) |
| Docket Number | Case No: QB-2020-003528 |
| Court | King's Bench Division |
[2023] EWHC 794 (KB)
THE HONOURABLE Mr Justice Murray
Case No: QB-2020-003528
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Jake Rudman, Ms Andrea Barnes, and Ms Chelsea Sparkes (direct access) for the Claimant
The Defendants did not appear and were not represented.
Hearing date: 5 October 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down are deemed to be 4 April 2023 at 10:30 am.
This claim, which was issued on 30 September 2020, is for damages and other relief for defamation, harassment, breach of data protection, and misuse of private information. The claim was brought by Mr Simon Parkes against the Mr Toby Hall, the first defendant, and Mr Stephen Earnshaw (also known as Amora Steve Melchizadek), the second defendant. The claim concerns defamatory publications in the form of 9 videos published on-line on YouTube and on Brighteon and 4 emails sent to a variety of recipients, possibly numbering in the thousands. Each publication complained of was made during the period 19 July 2020 to 17 September 2020.
By order of Sir Andrew Nicol, sitting as a Judge of the High Court, dated 22 October 2021 (“the Nicol Order”), the defence filed by each defendant was struck out and judgment was ordered for the claimant, with the defendants ordered to pay the claimant's costs. The neutral citation for Sir Andrew Nicol's judgment setting out his reasons for making the Nicol Order is [2021] EWHC 2824 (QB) (“the Nicol Judgment”).
This is the disposal hearing to determine remedies, including damages and costs, ordered under paragraph 6 of the Nicol Order.
Under paragraph 9 of the Nicol Order, Sir Andrew Nicol ordered the defendants to pay the claimant's costs, to be the subject of a detailed assessment, if not agreed. Under paragraph 10 of the Nicol Order, costs in the case other than those ordered under paragraph 9 are to be considered at this disposal hearing.
Settlement with the first defendant
Prior to this disposal hearing, the claimant and Mr Hall reached an agreement with Mr Parkes in full and final settlement of the claim against Mr Hall, which is set out in Schedule 1 to a Tomlin Order dated 8 June 2022 (sealed on 15 June 2022) (“the Tomlin Order”). Under the settlement, Mr Hall agreed to:
i) pay a global settlement amount of £132,050, inclusive of the claimant's costs, VAT, and interest payable;
ii) make an apology, in terms set out in Schedule 2 to the Tomlin Order, which accepts that the allegations complained of were highly defamatory, untrue, seriously harmful, and included some intrusive speculation into the claimant's private life.
iii) give undertakings set out in Schedule 3 to the Tomlin Order, namely:
a) to refrain from making any further publications about the claimant, whether by himself or his servants, agents, associates, or otherwise; and
b) to remove any online publications (including by not limited to videos, blog posts, and website pages) about the claimant which are in his control or in the control of his agents or servants.
The global settlement amount agreed by Mr Hall includes £105,000 (inclusive of VAT) in respect of the claimant's costs of the claim as against Mr Hall. The agreed amount of damages is therefore £27,050. Payment in full was due by 1 June 2022, and the settlement provided for interest to accrue at 8 per cent per annum on any amount owing in respect of the global settlement amount after that date.
In light of that settlement, there is no reason why Mr Hall should have attended or been represented at this hearing, and he has not attended or been represented.
The issues for this disposal hearing
This disposal hearing was therefore solely to determine the following matters outstanding as between Mr Parkes and the second defendant, Mr Earnshaw:
i) the amount of damages and/or compensation to be paid by Mr Earnshaw to Mr Parkes under the claim following the entry of judgment against Mr Earnshaw under paragraph 5 of the Nicol Order;
ii) whether aggravated damages should be paid by Mr Earnshaw to Mr Parkes and, if so, in what amount;
iii) whether further injunctive relief should be granted to Mr Parkes; and
iv) costs to be paid by Mr Earnshaw to Mr Parkes.
Proceeding in the absence of the second defendant
I am satisfied that Mr Earnshaw had proper notice of this hearing and the matters to be considered at this hearing. Mr Parkes has attempted to engage with Mr Earnshaw, but has had not contact with him since 2 November 2021.
On 22 October 2021, after his Defence was struck out, Mr Earnshaw sent an email to all parties and the court with comments on the draft order that the court had circulated, indicating an intention to appeal. There is no evidence that he has taken any steps to seek permission to appeal. Mr Earnshaw sent a further email on 2 November 2021 to the other parties and the court, raising complaints about Mr Parkes's conduct and about the conduct of the proceedings. Since then, there has been no further engagement from Mr Earnshaw.
Mr Parkes attempted to contact Mr Earnshaw by email on various dates in 2022 prior to this hearing, including for the purpose of agreeing costs and procedural matters. Mr Parkes has also attempted to ascertain Mr Earnshaw's whereabouts by engaging tracing agents on two separate occasions, without success.
Paragraph 7(a) of the Nicol Order directed the parties to file with the court their availability for this disposal hearing, but Mr Earnshaw never complied with that direction. The court has received no communication from Mr Earnshaw seeking to adjourn this hearing or otherwise offering any reason why he was not able to attend.
I have had regard to the judgment of Warby J in Pirtek (UK) Ltd v Jackson [2017] EWHC 2834 (QB) at [19]–[20] and followed the approach indicated there. I have had regard to section 12(2) of the Human Rights Act 1998. Section 12(2)(b) does not apply, but section 12(2)(a) does apply. I am satisfied that Mr Parkes has taken all practicable steps to notify the response of the relief he is seeking. There is nothing before me that indicates that it would be unfair to Mr Earnshaw to proceed in his absence. It appears that he has simply decided to cease to engage with Mr Parkes and with the court regarding these matters. Accordingly, I consider that it is just and proper to proceed in his absence, bearing in mind the protection available to Mr Earnshaw under CPR r 39.3.
Hearing bundle and evidence
In the bundle for this disposal hearing, I have witness statements from Mr Parkes dated 10 February 2021, 21 May 2021, 26 July 2021, 4 October 2021, and 28 September 2022. Various documents are exhibited to the first, second and fifth of these witness statements. Mr Parkes' fifth witness statement, together with the witness statement dated 28 September 2022 of Mrs Rebecca Parkes, Mr Parkes's wife, were specifically prepared to deal with issues to be resolved at this disposal hearing.
The bundle also includes the pleadings that were before Sir Andrew Nicol, the publications complained of (including links to Dropbox to view various videos that are among the publications complained of), the various orders that have been made in these proceedings to date, including the Tomlin Order, the various applications that have been made in these proceedings to date, the various documents filed by Mr Hall and Mr Earnshaw in these proceedings, transcripts of statements made by the defendants in various settings, Mr Parkes's letter before action and subsequent correspondence between the parties and with the court, and other miscellaneous documents.
Factual background
Mr Parkes is the founder of a spiritual group called Connecting Consciousness, which he set up in 2015. In paragraph 1 of the Particulars of Claim, which are dated 7 October 2020, the membership of Connecting Consciousness was estimated to be about 13,500, approximately 2,000 of whom were said to live “in this jurisdiction” (although I take this to mean the United Kingdom, rather than simply England and Wales) and 5,000 of whom were said to live in the European Union. At the time of the hearing before Sir Andrew Nicol in October 2021, Mr Parkes estimated the membership of Connecting Consciousness to be 50,500. In his witness statement dated 28 September 2022 given for purposes of this disposal hearing, Mr Parkes estimated the global membership of Connecting Consciousness to be 105,000.
Mr Parkes describes Mr Hall as a former close friend of his, who was a member of Connecting Consciousness from 2015 to 2020.
Mr Earnshaw is also a former member of Connecting Consciousness. According to Mr Parkes, he and Mr Earnshaw have only met on one occasion.
Each of the parties has acted as a litigant in person for the purposes of conducting this litigation, although Mr Parkes and Mr Hall have instructed direct access counsel to represent them at certain hearings. For example, both Mr Parkes and Mr Hall were represented by counsel at the hearing before Sir Andrew Nicol on 11–12 October 2021, while Mr Earnshaw appeared in person at that hearing.
Mr Parkes does not hold Mr Earnshaw responsible for the first two of the 13 publications complained of. Mr Parkes considers that Mr Hall was solely responsible for those. Accordingly, for present purposes, the court has been invited to focus on the third to thirteenth publications complained of, for the publication of which Mr Parkes holds both of the defendants responsible.
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