The Law Society (in a Representative Capacity and Others v Rick Kordowski
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 07 December 2011 |
| Neutral Citation | [2011] EWHC 3185 (QB) |
| Docket Number | Case No: HQ11D03791 |
| Court | Queen's Bench Division |
| Date | 07 December 2011 |
[2011] EWHC 3185 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ11D03791
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC & Sarah Mansoori (instructed by Brett Wilson LLP) for the Claimants
The Defendant appeared in person
Hearing dates: 15 November 2011
This is a claim for injunctions requiring the Defendant, the publisher of the "Solicitors from Hell" website ("the Website"), to cease publication of the Website in its entirety and to restrain him from publishing any similar website. The causes of action relied upon are libel, harassment under the Protection from Harassment Act 1997 ("the PHA") and breach of the Data Protection Act 1998 ("the DPA"). The claim is brought as a representative action on behalf of all those currently featuring on the website and those who might, in the future, feature on the website.
The law firms and organisations represented by the Second Claimant are referred to as "the Represented Listed Firms". The presently listed individuals represented by the Third Claimant are referred to as "the Represented Listed Individuals". The individual solicitors and other individuals represented by the Third Claimant that are at serious risk of being named on the Website will be referred to as "the Represented Individuals". I shall refer to them collectively as the Represented Parties. The Claimants represented by the First Claimant are referred to as the "Law Society Represented Claimants".
An interim injunction to restrain publication of a libel is granted only if there is no doubt that the words are defamatory, and only if there is no defence put forward which a jury, properly directed, could uphold. This is usually referred to as the rule in Bonnard v Perryman [1891] 2 Ch 269. But perpetual injunctions to restrain publication of a libel are commonly granted, either after a trial, or after judgment is entered in default of defence. However, in the case of default judgments, a claimant must make an application for an injunction in accordance with Part 23: see CPR Part 12.4(2).
A representative action for harassment under the PHA has been permitted to proceed in a number of cases. Mr Tomlinson was unable to identify any case where a representative action was brought in libel.
At the end of the hearing I granted an injunction prohibiting the Defendant from further publishing the Website, in terms to be reviewed on the handing down of the reasons given in this written judgment. These are the reasons.
The First Claimant is the Law Society for England and Wales. It is a professional body established by Royal Charter. It represents the interests of every solicitor on the roll in England and Wales, and every law firm registered in England and Wales.
The Second Claimant is a large firm of solicitors based in the South of England. The Third Claimant is a partner in the Smith Partnership, one of the largest firms of solicitors based in the East Midlands. The Second Claimant brings the action for the Firm and the Third Claimants brings the action for himself, and all the Claimants claim to be acting in a representative capacity pursuant to CPR Part 19.6, as set out in the title to this action and further explained in paragraphs 143ff below.
The Defendant is the founder, operator and publisher of the Website. This appears to have a substantial readership within this jurisdiction. It has been in existence since late 2005.
The Defendant purported to serve a Defence out of time. I shall refer to this as his Defence. As the Defendant admits in paragraph 16 of the Defence (admitting para 6.2 of the Particulars of Claim) the Website encourages and invites disgruntled members of the public to "NAME and SHAME your OPPRESSOR" and add names of solicitors to the publicly available list of "Solicitors from Hell". A fee of between £1 and £100 (depending upon the size and prominence of the posting) is charged by the Defendant. In the vast majority of cases the author of the posting is anonymous.
The Defendant claims that the Website provides a public service by publishing a "blacklist" of law firms and solicitors that should be avoided. It purports to encourage members of the public to "expose wrongdoing" within the profession.
It is the Claimants' case that being listed and named on a website purporting to list "solicitors from hell" is defamatory of itself. The Website causes serious damage to the reputations of the solicitors, firms and others who are listed on it, causing them financial loss, embarrassment, anxiety and distress. By publishing and republishing such material on the Website, knowing that it will be widely disseminated to clients and others via search engines, the Defendant is harassing those listed on it. Far from providing a public service, the Defendant is doing the public a disservice by encouraging them to refer to his Website when selecting a lawyer, since he is encouraging them to use inaccurate information to choose a solicitor.
The Defendant disputes the entitlement of the Claimants to bring proceedings under CPR Part 19.6. But subject to that, he has not raised any defence to the claims in libel. There is no suggestion by him that the words complained of are true, or that they are honest opinion. Although he claims to be providing a public service, he does not attempt to raise any of the defences recognised in the law of libel for defendants claiming that publications are in the public interest. There is no plea of qualified privilege of any kind. The Defendant does dispute that some of the words complained of refer to all solicitors represented by the Claimants. And he pleads Art 10(1) of the ECHR (Freedom of Expression) in an answer to the claims for injunctions in libel, as if the right granted by Art 10(1) were not qualified by the responsibilities and other provisions of Art 10(2). As to the claims under the PHA, the Defendant again invokes an unqualified Art 10(1) right. And although he himself does not raise any affirmative defence recognised by the law of libel, he asserts that the Claimants must bring their claims, if at all, under the law of libel, and that they cannot circumvent that requirement by relying on the PHA. He makes no specific response to any of the particulars pleaded by the Claimants in support of the claims under the PHA. The Defendant adopts a similar response to the claims under the DPA. He states that the Claimants must bring their claims, if at all, under the law of libel, and relies on Art 10(1).
Art 10 of the Convention provides:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, … for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
In his witness statement signed on 8 November 2011, the Defendant does not suggest that he intends to justify the allegations complained of. Nor does he suggest that he intends to defend the claims under the PHA or the DPA. Instead the Defendant explains how he set up the Website. He explains that he posted the first comment about a firm of solicitors who had advised him, but that all other submissions to date were from members of the public. He states that the Website works in 'publisher mode' whereby he reviews the comments prior to publication. He now claims that "approximately 80%" are intercepted and deleted by him. Mr Tomlinson submits that this is at odds with other statements he has made claiming he does not seek to verify the accuracy of the content of the submissions (see Awdry Bailey Douglas v Rick Kordowski [2011] EWHC 785 (QB)).
Mr Tomlinson states that the Claimants and in particular, the First Claimant, have no objection to proper criticism of the legal profession or debate about whether a particular solicitor has failed to provide service of appropriate quality in a particular case. Informed debate on these issues is clearly in the public interest and a proper exercise of the right to freedom of expression. But he submits that the Website makes no contribution whatever to such debates but instead sets out to and does provide a forum for the publication of malicious and defamatory allegations about solicitors. The Website operates against the public interest and the Claimants have brought this action with the aim of ensuring that it ceases operation. The Law Society is concerned about the enormous reputational damage that is, and can be, done to firms and lawyers as a result of...
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