Siobhain Crosbie v Caroline Ley
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 01 November 2023 |
| Neutral Citation | [2023] EWHC 2626 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-004248 |
[2023] EWHC 2626 (KB)
Mr Justice Julian Knowles
Case No: QB-2020-004248
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Janaka Siriwardena (instructed via Direct Access) for the Claimant
Gervase de Wilde (instructed by Brett Wilson LLP) for the Defendant
Hearing dates: 21–22 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 1 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
In this action the Claimant, Siobhain Crosbie, sues the Defendant, Caroline Ley, for passing off. The Defendant counterclaims under CPR Part 20 against the Claimant for defamation, harassment and under the GDPR (Regulation (EU) 2016/679). Mr de Wilde for the Defendant accepts that if I find for her on defamation/harassment then I need not decide the GDPR claim.
The amount pleaded in the Particulars of Claim (PoC) by way of loss and damage is £1,422,418.80, plus interest under s 35A of the Senior Courts Act 1981 of £456,109.31 and continuing at a daily rate of £311.76.
The background is as follows.
The Claimant's claim
The Claimant and the Defendant are both therapists/counsellors. The Claimant qualified in 2003. She founded and runs a psychotherapy/counselling practice called APS Psychotherapy and Counselling (APS) which operates from premises in The Shrubberies, South Woodford, E18 1BG (the Premises). It has been in business for some years. The Premises has treatment rooms which – at least at one time — the Claimant rented and which were used by other self-employed therapists (and who paid the Claimant). She used one of the rooms for her own practice.
The Claimant and the Defendant were formerly friends. They met on holiday in 2005 and stayed in touch. The Defendant decided to retrain as a therapist/counsellor. She did part of her training with the Claimant. In about 2010/11 the Defendant worked from the Premises before moving out to work elsewhere in early 2012.
The Defendant now has a therapy practice, Cherry Tree Therapy Centre, based in Buckhurst Hill, Essex. Prior to that she traded under the style Buckhurst Hill Counselling and Psychotherapy (BHCP). She registered the domain name buckhursthillcounselling.co.uk in May 2010, shortly before she qualified. She also had another website and trading style (Transitional Therapy/ www.transitionaltherapy.co.uk) at some stage. She was also listed on APS website after she qualified.
The Claimant alleges that the Defendant passed off BHCP as the Claimant's business by creating a listing on ‘Google Places’ for BHCP (this service has since been rebranded by Google, becoming known as Google+ Local (2011), Google My Business (2014) and more recently, Google Business Profiles (2021)), but also using the Claimant's trading style and web-address for APS, and the postcode of the Premises, with a ‘Call’ button which when clicked or ‘pressed’ would bring up the Defendant's phone number.
The Claimant also alleges that the Defendant created an entry in an online directory called www.psychotherapyexperts.co.uk (Psychotherapy Experts) using the Claimant's trading style but with the Defendant's telephone number.
The Claimant's case is that these two things harmed her business and caused her financial loss. She says that because of what the Defendant did, potential clients of APS who were looking for it (or her) online on Google were diverted to the Defendant's practice instead.
Paragraph 13–17, of the PoC aver:
“13. On 26 March 2016, the Claimant discovered a listing in the name of APS in the Psychotherapy Experts directory ( www.psychotherapyexperts.co.uk). This listing had been created by the Defendant without the consent, permission or knowledge of the Claimant. The Defendant, when making the entry, had stated her direct telephone number instead of the Claimant's contact details. It is averred that, if this entry was created before the Defendant's departure from APS, she failed to take any steps to amend the contact details associated with this entry after leaving APS.
14. Following this discovery, again in late March 2016, the Claimant found a Google directory entry in the name of APS. Whilst it contained the address of the Premises and the web address for APS, it listed the Defendant's direct dial as the main contact number.
15. Following discussions with Google, the Claimant eventually found out on 13 October 2016 that the Google entry had been created in 2011 using the email address info@transitionaltherapy.co.uk (a domain name associated with the Defendant's business).
16. It is averred that the Google directory entry (and the inclusion of the Defendant's telephone number) had been created by the Defendant without the consent, permission or knowledge of the Claimant.
17. These directory entries unwittingly redirected prospective clients seeking to contact APS. It is averred that these entries, after the Defendant's departure from APS, misrepresented her association with the Claimant's business to prospective clients and / or members of the public.
18. The Defendant sought to pass of her practice as APS in that:
PARTICULARS OF PASSING OFF
a. the Defendant knowingly misrepresented to prospective clients / members of the public her association with APS hen creating the entries in the Google and Psychotherapy Experts directories with her own contact details and/or failing to amend the same upon her departure from APS; the Defendant knowingly misrepresented to prospective clients/ members of the public her association with APS.”
The Defendant denies ever having created either entry (and thus also that she culpably failed to amend them). She says the best she has been able to discover is that somehow Google's software ‘merged’ her BHCP listing with that of the Claimant's APS listing as the result of a ‘bug’ or glitch, to produce a merged business listing showing details of both of the other listings. This merged listing was then later automatically incorporated into the www.psychotherapyexperts.co.uk website when it began to operate at some point after February 2016 (which is when that domain name was registered).
The Defendant says she was unaware of either matter until the Claimant contacted her towards the end of March 2016, and that (having tried to amend the merged listing) she simply deleted it. After being made aware of the problem in 2016, and then subsequently threatened with these proceedings, the Defendant obtained evidence to show that merged business listings was a known problem on Google.
Paragraphs 18(b)(i) and (ii) of her Defence and Counterclaim aver:
“(i) As to Google, the Defendant did not create a listing that represented herself as APS or part of APS. The only relevant listing she created referred to her working at the address of the Premises. Any merger of her listing with the Claimant's trading name or website was not created by her. The Defendant does not, for the avoidance of doubt, suggest it was likely to have been created by the Claimant. Any such merged listing appears to have been the result of an erroneous automated process by Google which affects some businesses which have shared the same address, this being a known problem with Google's processes.
(ii) As to Psychotherapy Experts, the averment that the Defendant created the listing is false. Incorrect information was copied from the Google listing by the website publishers after they launched the website in 2016. The listing on psychotherapyexperts.co.uk did not exist until 25 February 2016 at the earliest.”
Hence, put simply, the Defendant says what happened with the listings was nothing to do with her, and she denies passing off. She also disputes the goodwill and damage elements of the tort, which I will come to later.
The Defendant's counterclaim
The Defendant's counterclaim relates to social media posts on Facebook and Twitter made by the Claimant from 2016 onwards in which she alleged, among other things, that the Defendant had committed fraud by passing her business off as that of the Claimant, and that she was dishonest and a risk to the public. The posts included threats of violence to the Defendant.
In respect of defamation, the four publications complained of are the following: numbers 41 (23B); 42 and 43 (23C(i) and (ii)); and 45 (23E), on the Schedule prepared by Mr de Wilde. They are as follows.
No 41/23B: on 24 May 2020, the Claimant published a page headed ‘Protection of the public’ on the gofundme.com website at the URL https://www.gofundme.com/f/protection-of-the-public?stop=1 (the GoFundMe page) which displayed the Defendant's mobile telephone number and stated (Core B/p917):
“In 2016 I discovered a psychotherapist had committed cyber fraud on my organisation. The metropolitan police completed a full investigation under the rules of cyber fraud yet despite an admission under caution, they do not have the funds to prosecute so suggested a civil action. Due to the amount of police estimation of losses a civil hearing cost £10,000. If you believe justice ought to be done and the protection of the public imperative I ask you to support me in raising the funds to take her to court. The photo beneath is the google listing reflecting her telephone number and my website taken from the drop down menu on Google. Google since took over the listing and amended it. She needs to be prosecuted for cyberfraud and I would like the public protected.”
On the same day she published the following on Twitter to a user ‘Colour Purple Therapy’ who had forwarded or liked the GoFundMe page (Core B/p930):
“Thank you. This needs resolving and bacp...
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