Stephen Gooderson v Mohammad Ismail Ali Qureshi
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams |
| Judgment Date | 25 November 2022 |
| Neutral Citation | [2022] EWHC 2977 (KB) |
| Docket Number | Case No: QB-2020-004603 |
| Court | King's Bench Division |
[2022] EWHC 2977 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QB-2020-004603
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
SITTING AT LIVERPOOL CIVIL AND FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Dr M. Wilkinson (instructed by Dwyers Solicitors) for the Claimant
The Defendant appeared in person
Hearing date: 9 November 2022
Approved Judgment
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Introduction
In these proceedings the claimant, Mr Gooderson, seeks damages and injunctive relief in relation to 21 postings that appeared on the following websites: Google Reviews, Yell.com, Allagents.com, Tameside Directory and 192.com in the period May – July 2020. He claims that the posts are defamatory and that they were published by the defendant. His case is that the defendant took retaliatory action following a dispute over the sale of two properties in Ashton-under-Lyne and the claimant's refusal to refund his £5,000 deposit. At the material time the claimant was employed as a consultant by an estate and lettings agent known as the First Time Buyers Centre (“FTBC”). The posts purported to review the services provided by the FTBC and Mr Gooderson in very critical terms; and they were made in 13 different names or diminutives of the names. The defendant denied that he was responsible for making these posts and counterclaimed for the value of his deposit on the basis of misrepresentation and/or unjust enrichment. In the event, following multiple breaches of court orders, his defence and counterclaim were struck out and he was debarred from defending the proceedings.
The trial was concerned with whether the claimant could prove the necessary elements of his claim. As I have already indicated, publication by the defendant is an issue. Four of the posts did not include Mr Gooderson's name and I must decide whether the words used in those instances referred to the claimant. Where I am satisfied that posts were published by the defendant and referred to the claimant, I have to consider whether the words used were defamatory at common law and, if so, whether the “serious harm” requirement of section 1 of the Defamation Act 2013 is satisfied. If and in so far as liability is established, I will then address the appropriate award of damages and whether to grant injunctive relief.
The procedural history
The procedural history is set out in more detail in the ex tempore judgment I gave at the hearing on 6 October 2022. For present purposes I will simply summarise the central features.
The claim was issued on 22 December 2020 and served on 29 December 2020. The defendant had not responded to the letter before claim dated 30 June 2020 or to the subsequent chaser letter dated 7 September 2020. The defendant was legally represented during the proceedings until 18 October 2021. He served two defences. The first was a brief handwritten defence on Form N9B denying the claim. The second was a more detailed document headed “Amended Defence and Counterclaim” (“ADC”), dated 8 February 2021. The ADC denied that the defendant had published any of the 21 posts. However, at para 23 the defendant accepted that he had made the following post (“the admitted post”):
“The first time buyers centre ashton under lyne first time buyers centre thefirsttimebuyerscentre.uk – beware first time buyers centre stephen gooderson is bad guy never give me deposit back lost 5000 if you giving deposit to stephen goodson give subject to contract or you will lost the deposit – report available 130 stamford street central ashton-under-lyne ol6 6ad 3-howards court, ashton-under-lyne o16 6aw @@@@@@@ Thefirsttimebuyerscentre.uk”
The inconsistent spelling and tenses appeared in the text as it was set out in para 23, ADC. The two addresses referred to therein, 130 Stamford Street and 3 Howards Court, are the two properties that the defendant negotiated to buy from the claimant.
The claimant served a CPR Part 18 Request for Further Information dated 10 May 2021. Amongst other matters, he sought further details regarding the admitted post, including where it was published, the dates of publication and whether the defendant still had the device from which it was published. The defendant's Answer did not provide any of these details; it simply said he confirmed that he had made the admitted post and that it had since been removed. The defendant subsequently provided a second and a third version of the Answer in which he said that his post was on Allagents.com in the name of “MohammadQ”. He said he was unaware of the exact dates when the admitted post was published and he “cannot remember which device was used to publish the review and the Defendant is also unable to recall if he is still in possession of the device”. The claimant has not been able to identify the admitted post via electronic searches.
Directions were given by Master Yoxall at a Costs and Case Management Conference on 23 November 2021. These included that the parties were to give standard disclosure by list by 14 January 2022 (with subsequent provision of requested documents) and exchange witness statements of fact by 1 March 2022. A trial window was set and subsequently the trial was listed to commence on 21 June 2022. In breach of the order, the defendant failed to provide a disclosure statement and failed to exchange witness statements as directed. The claimant applied for an order striking out the ADC. On 21 March 2022 the defendant sent a short email indicating that this was his witness statement. It was not signed.
The hearing of the strike out application and the pre-trial review were listed for 26 May 2022. On 24 May 2022 the defendant served a skeleton argument for the hearing which contained new narrative material and was not verified by a statement of truth.
By order dated 26 May 2022 (“the May 2022 Order”), Nicklin J directed the defendant to provide a completed and signed N265 List of Documents and copies of the documents in this list by 4.30 pm on 17 June 2022 (para 1). He was also required to provide electronic copies of disclosed documents, where requested (paras 2 and 3). The defendant had indicated at the hearing that he relied upon the accounts set out in the ADC and in the 24 May 2022 skeleton argument. He was directed to serve a witness statement verified with a statement of truth attaching these documents by 4.30 pm on 1 July 2022. No permission was given for the defendant to adduce any new witness evidence.
The May 2022 Order said that the ADC would be struck out and the defendant debarred from adducing any evidence in defence of the claim if he failed to comply with paras 1 and/or 4 (para 6). The same paragraph confirmed that the claimant would still be required to prove his case in relation to publication, serious harm to reputation and (if applicable) remedies. The existing trial date was vacated and a new trial window fixed for 1 October – 18 November 2022. The defendant was ordered to pay the claimant's costs, summarily assessed in the figure of £8,500 in respect of the strike out application.
The defendant failed to comply with both paras 1 and 4 of the May 2022 Order. Some areas of default had been rectified by the time of the hearing before me on 6 October 2022 and some remained outstanding. This hearing concerned the defendant's application for relief from sanction and also an application made by the claimant for the defendant to be debarred altogether from defending the claim in light of his additional and ongoing non-compliance. At this stage, the most significant areas of non-compliance with the May 2022 Order were: the failure to disclose documents that clearly fell within the parameters of standard disclosure, mostly notably the admitted post; the failure to complete the N265 Disclosure Statement in a way that indicated appropriate searches for documents had been undertaken; the further witness statement from the defendant had failed to attach and rely on the ADC and had included new narrative which he had no permission to rely upon; and he had served an additional skeleton argument which included further new narrative material and this was not verified by a statement of truth.
In my 6 October 2022 oral judgment I indicated that I was satisfied that following the 26 May 2022 hearing the defendant was left in no doubt as to what he had to do and that his breaches of the May 2022 Order were serious and significant and had occurred without any good explanation. I noted the defendant's history of non-compliance with court orders, how this had already led to the loss of one trial date and the ongoing prejudice to the claimant. I emphasised that I had come very close to refusing to grant relief from sanction and to striking out the ADC at that stage. However, I indicated that I was, just, persuaded to give the defendant one last chance. I was partly persuaded by the fact that he was assisted on this occasion by his daughter, Sidra Khan, who I gave permission to address the court in her capacity as his McKenzie Friend. She assured me that she understood the terms of the order that I proposed to make and that she would assist her father in meeting the terms regarding disclosure and witness statements.
By the order I made on 6 October 2022 (“the October 2022 Order”), I granted relief from the sanction set out at para 6 of the May 2022 Order on condition that the defendant complied with each and every obligation that I went on to specify in paras 3, 4 and 5 of this order (para 2). He was required to file and serve a completed and compliant N265 Disclosure Statement by 4 pm on 11...
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