Sir David Rowat Barclay v Craig Leslie Tuck (calling himself Lord De Chanson)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Spencer |
| Judgment Date | 14 May 2018 |
| Neutral Citation | [2018] EWHC 1125 (QB) |
| Date | 14 May 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: ATC 17/0035 |
[2018] EWHC 1125 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Spencer
Case No: ATC 17/0035
Sandip Patel QC (instructed by Lexavoca) for the Claimant
Terence Wong (instructed by Cartwright King) for the Defendant
Hearing dates: 16 th, 17 th and 18 th April 2018
Introduction and overview
This is an application to commit the defendant to prison for contempt of court for breach of orders made by Turner J on 14 th December 2016 and 28 th March 2017 to enforce an order made against the defendant in the French courts on 15 th January 2016. The French judgment required the defendant to withdraw pages accessible at seven of his URL addresses on the internet which were found to constitute mental harassment of the claimant. The order made by Turner J on 14 th December 2016 (“the First Order”) required the defendant to withdraw forthwith the webpages accessible at these seven URL addresses. The order made by Turner J on 28 th March 2017 (“the Second Order”) was made at the initial hearing of the application to commit the defendant for breach of the First Order. The defendant appeared in person. The application for committal was adjourned on terms which, in effect, gave the defendant the opportunity of complying with the First Order by taking specified steps in an agreed timetable.
The claimant's case is that the defendant remains in breach of the First Order, and is also in breach of the Second Order. The application initially came on for hearing before Cheema-Grubb J on 5 th March 2018, during the course of which the defendant obtained the prospect of legal representation. The matter was therefore adjourned, and directions were given. I heard the application for committal in full on 16 th, 17 th and 18 th April 2018. The defendant was represented by counsel, Mr Terence Wong. The claimant was represented by Mr Sandip Patel QC. I reserved judgment.
Factual background
The claimant, Sir David Barclay, and his twin brother Sir Frederick Barclay, are well known public figures. They have a home on the island of Brecqhou, in the Channel Islands. For a time the defendant also lived in the Channel Islands, on the island of Sark. Over a period of several years the defendant has been researching and writing an unauthorised biography of the claimant and his brother. He does not like them. The nature of the proposed biography, and other writings of the defendant, is an exposé of what the defendant alleges to be their discreditable background and conduct.
The defendant has for a long time written extensively about these matters in postings on the internet, at various URL addresses. Since at least 2010 there have been exchanges of correspondence between the defendant and lawyers representing the Barclay brothers. In 2014 their French lawyers wrote to the defendant requiring him to withdraw or deny access to various webpages at his URL addresses which contained particularly offensive and injurious material, failing which appropriate proceedings (criminal and civil) would be commenced in the French courts. The defendant declined to remove the offending material.
Proceedings were commenced in the Paris High Court, criminal and civil, in which judgment was given on 15 th January 2016. The defendant was charged under Article 222-33-2-2 of the French Penal Code with the crime of mental harassment through public online communication in relation to the seven URL addresses. In the concurrent civil action the claimant sought the prohibition of “continued dissemination in their current state of the pages accessible at URL addresses[listed]” (i.e. the seven addresses in question), in that they constituted mental harassment. The claimant also claimed damages, and an order requiring the withdrawal of the webpages in question.
The relevant provisions of the French Penal Code came into force on 4 th August 2014 and create the offence of:
“…harassing an individual by repeated comments or conduct having the purpose or effect of a deterioration in his living conditions reflected by an alteration in his physical or mental health…”
When committed by the use of a public online communication service, or when committed on an individual whose special vulnerability, due to his age, an illness, an infirmity, or a physical or psychological disability, is apparent or known to their author, the offence is punishable by 2 years' imprisonment and a fine of €30,000.
The recurring themes found by the French court to have been published in the articles at the webpages in question were: accusations of tax fraud, suspicions of corruption, comments aimed at the claimant's physical characteristics and those of his family, innuendo regarding his sexual orientation, dealings with individuals having committed serious offences, problems with public and social policy in the territories of Sark and Brecquou, surveillance put in place against the defendant, and multiplication of delaying legal proceedings.
There was medical evidence that the repetition of this behaviour was affecting and unsettling the claimant so that he had developed a reactive anxio-depressive syndrome. The court found that the claimant, who was aged 79–80 years at the relevant time, was a vulnerable individual.
The court found the defendant guilty of the acts alleged. For the crime he was fined €1,500. For the civil claim he was ordered to pay compensation of €700 for mental harm. He was ordered to pay €1,000 costs
As to the URL webpages, the French judgment reads:
“With regard to the withdrawal of the contentious blogs: Whereas, given the declaration of guilt and the maintenance of the contentious blogs which continue to produce the same effects referred to above, Craig Leslie Tuck calling himself Lord De Chanson it is ordered, under penalty of €100 per day of delay, after a period of eight days with effect from notification of this Judgement, to withdraw the pages accessible at the following URL addresses [the seven URL addresses were listed]. The plaintiff may also go to the Civil Court to quantify the penalty at the relevant date.”
On 30 th June 2016 the claimant's solicitors wrote to the defendant requiring him to pay the sums awarded by the French court and to “take down the offending blogs”, failing which application would be made to the English court for enforcement of the judgment. He was informed that if thereafter he still continued to fail to take down the blogs, there would be proceedings for contempt of court which could result in his imprisonment. He was advised to consult a solicitor
On 20 th October 2016 the claimant's solicitors wrote to the defendant giving him final notice that if he did not comply with the judgment, proceedings would be issued to enforce the French judgment by a mandatory injunction.
That application was duly made under Regulation (EU) No.1215/2012 (“Recast Brussels Regulation”) pursuant to CPR 74.4A, 74.9 and Practice Direction 74A paragraphs 4 and 6A. Turner J made the order on 14 th December 2016. The operative paragraph provided:
“(1) following the judgment reference No 15083000221 of the Court in Paris of the 15 th January 2016 the Defendant must withdraw forthwith the webpages accessible at the URL addresses:
(i) www.lorddechanson.wordpress. com;
(ii) www.sirfrederickbarclaywitnessstatement@wordpress. com;
(iii) www.derekquinlanfinancier@wordpress. com;
(iv) www.aidanbarclayamendedwitnesstatement@wordpress. com;
(v) www.thebarclaybrothersandaidanbarclay@wordpress. com;
(vi) www.sarkandbrecqhou@wordpress. com; and
(vii) www.thebarclaybrotherspressrelease@wordpress. com”
The defendant was ordered to pay the costs of the application. The order was headed with a penal notice.
When he was served with the order the defendant applied to set it aside. That application was dismissed by Soole J on 29 th December 2016.
Before that the defendant had written to WordPress on 20 th December 2016 saying that he wanted to change some of the content of several specified blogs but did not want them removed. The blogs he listed included (vi) and (vii). They did not include (ii)-(v). He said he had lost the passwords to all the blog addresses he listed and asked for advice on how to access them. The advice given by WordPress included the suggestion that he provide them with the e-mail address on file for the account in respect of each of the separate blogs.
On 22 nd December 2016 the defendant wrote to WordPress to say that he had the e-mail addresses, but because some of his files were missing he could not identify which e-mail applied to each blog. He said he had the passwords to his e-mail accounts and invited WordPress to e-mail the correct password for each blog to his individual e-mail accounts. There was further e-mail correspondence with WordPress along the same lines.
On 24 th December 2016 the defendant wrote to WordPress listing the e-mail accounts he could locate, explaining that the sheet of paper “with correspondence to the blogs” had gone missing. He said again he did not want his blog to be deleted, “I just want to amend the editorial content to comply with the court order”.
On 26 th January 2017 the claimant's solicitors issued an application for the defendant's committal for breach of the order to withdraw the web pages at the seven URL addresses. In the supporting affidavit it was said that those at (i)-(v) had been modified but still remained offensive. Those at (vi)-(vii) remained unchanged.
The application was first listed on 15 th February 2017 before William Davis J. The defendant was unrepresented. He arrived at court with a large volume of documents. The matter was adjourned for...
To continue reading
Request your trial
-
Kea Investments Ltd v Eric John Watson and Others
...provided that the object of the endeavours can be ascertained with sufficient certainty.” Both counsel referred me to Barclay v Tuck [2018] EWHC 1125 (QB) at [102] where Spencer J accepted that “best efforts” meant the same as “best endeavours” and that “best endeavours” meant the same as ......
-
Sir David Rowat Barclay v Craig Leslie Tuck (calling himself Lord De Chanson)
...Approved Mr Justice Spencer 1 This is my decision on the issue of costs arising from the judgment I handed down on 14 th May 2018: [2018] EWHC 1125 (QB). 2 In advance of handing down that judgment I directed on 1 st May 2018 (when the draft judgment was circulated) that any submissions on ......