Warrick Fentiman v Richard Marsh
| Jurisdiction | England & Wales |
| Judge | Richard Spearman |
| Judgment Date | 31 July 2019 |
| Neutral Citation | [2019] EWHC 2099 (QB) |
| Court | Queen's Bench Division |
| Docket Number | No. HQ18M00961 |
| Date | 31 July 2019 |
[2019] EWHC 2099 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Richard Spearman Q.C.
(sitting as a Deputy Judge of the Queen's Bench Division)
No. HQ18M00961
Mr Jeremy Reed (instructed by Kingsley Napley LLP) appeared on behalf of the Claimant.
The Defendant did not appear and was not represented.
Hearing date: 22 July 2019
Richard Spearman Q.C.:
Introduction
This is the trial of a claim for libel, brought by Warrick (“Rick”) Fentiman in respect of 4 publications which are said to be defamatory of him. Mr Fentiman was represented at the trial, as he has been throughout these proceedings, by Jeremy Reed. I am grateful to Mr Reed for the balanced and sensible way in which he presented his client's claim. This included ensuring that I had in mind those parts of the Defence of the Defendant, Richard Marsh, which remained in existence – a large part of Mr Marsh's Defence having been struck out by Order of HH Judge Parkes QC (sitting as a Judge of the High Court) dated 21 June 2019 – and which provided the only indication of Mr Marsh's stance in answer to the claim, because Mr Marsh did not appear and was not represented at the trial.
It appears from an exchange of emails between Mr Marsh and Mr Fentiman's solicitors that Mr Marsh was notified on 19 July 2019 of the time and venue of the trial. The trial began at 2pm on 22 July 2019, and, in the absence of Mr Marsh – and, thus, of any rival evidence, submissions or cross-examination of Mr Fentiman's witnesses – concluded that same afternoon. In an email dated 17 July 2019, Mr Marsh stated: “Please apologise to the Judge on my behalf for my absence, and explain that I am no longer resident in the UK, and have no funds whatever to finance a flight to the UK to attend court”.
Although 4 publications were sued on, it appeared to me that the claim faced potential difficulties in respect of one of them because (a) that publication made no reference to Mr Fentiman by name and (b) no reference innuendo had been pleaded in the Particulars of Claim in respect of that publication and (c) if, in order to plead the case correctly, it was necessary for Mr Fentiman to seek permission to amend the Particulars of Claim, an application for permission to amend would need to surmount the hurdles which stand in the way of applications which are made so late in the day, to say nothing of having to be made without notice to Mr Marsh in the circumstances of the present case. Ironically, Mr Marsh's non-appearance may well have operated to his advantage in this context. If Mr Marsh had been present and represented, his advisers might not have questioned the form of the pleaded case, and, even if they had done so, the argument that an amendment would cause prejudice to him might have been hard to sustain. Having considered these issues overnight, Mr Reed informed me that Mr Fentiman had come to the conclusion that an application for permission to amend was probably required, but had decided not to make any such application. It was explained that this was on the basis that the other 3 publications sued on covered very similar ground to the 4 th publication, with the result that the exclusion of the 4 th publication would be unlikely to have any, or any material, impact upon the quantum of damages.
As a result of Mr Reed's successful application before HH Judge Parkes QC to strike out parts of the Defence and for summary judgment in respect of various aspects of the claim, and as the judge stated in Fentiman v Marsh [2019] EWHC 1563 (QB) at [61], the issues for trial have been narrowed, in respect of each of the (now 3) publications complained of, to (1) meaning, (2) whether the publication caused serious harm (see section 1(1) of the Defamation Act 2013: “A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant”), and (3) if Mr Fentiman succeeds on those issues, the measure of damages. In addition, I am fortunate to be able to rely on HH Judge Parkes QC's exposition of the background and aspects of the claim, which I state below substantially in his words.
Background
Mr Fentiman is the Chief Executive Officer of Specialist Hygiene Solutions Limited (“SHS”), which trades under the name “Hygiene Solutions”. Among its products are a system known as “Deprox” which carries out “surface bio-decontamination” for healthcare and commercial purposes, and an automated UV light disinfection system known as “Ultra-V”. Both systems are supplied to NHS hospitals.
Mr Marsh has a history of making serious allegations against SHS and its directors. He did not attend the hearing of Mr Fentiman's application before HH Judge Parkes QC, who was informed (in similar fashion to what occurred in advance of the trial before me) that Mr Marsh had sent an email to Mr Fentiman's solicitors saying he was no longer resident in the United Kingdom and would not be able to attend the hearing.
The brief history behind the allegations on which Mr Fentiman now sues is as follows.
SHS issued proceedings against Mr Marsh on 25 August 2015 in respect of allegations of defamation and breach of contract and confidence. Those proceedings were compromised by a consent order in Tomlin form on terms which included an undertaking by Mr Marsh not to publish any further information (whether public or private, true or false, defamatory, disparaging or otherwise) of or concerning SHS, its employees, directors, servants or agents, or its Deprox product. That undertaking was in remarkably wide terms, but Mr Marsh was advised by solicitors Birketts LLP.
In spite of that undertaking, between about 2016 and 2018 Mr Marsh published a large number of allegations on websites with the domain names deproxfraud.info, ultra-vfraud.info and deprox-fraud.blogspot.co.uk, on YouTube, via Dropbox and Twitter, and on Facebook, by email, and by letter to delegates at a conference on Infection Prevention Control. In broad terms, the published statements alleged that SHS's products, including Deprox, were ineffective and/or dangerous, and made a number of allegations of dishonesty and criminality against Mr Fentiman and other directors.
Those allegations were alleged to be in breach of Mr Marsh's undertaking to the court. By notice dated 13 March 2018, SHS applied to commit Mr Marsh to prison for contempt of court. In the course of the hearing of the application, Mr Marsh pleaded guilty to contempt in respect of 17 specimen counts, as they were described. At the same time, he admitted that all the other publications complained of in the committal application had been published by him in breach of his undertaking to the court. Mr Marsh also apologised for his breaches of the undertaking. Mr Marsh was sentenced on 30 April 2019 to be committed to HM Prison Pentonville for 8 months, suspended for 2 years provided that the undertaking was not breached during that period.
The allegations which are now complained of in the present claim
As set out above, Mr Fentiman relies on 3 further statements as being defamatory of him. Each of them relates to a cyber-attack on Mr Marsh's various internet platforms, which Mr Marsh alleges had previously taken place. Mr Fentiman does not know whether any such attack did, in fact, take place. Accordingly, he is in no position to deny that it did. Even if it did, however, Mr Fentiman's case is that he (and, for that matter, as far as he knows, SHS) had nothing whatsoever to do with it. Mr Marsh's defences of truth and to the effect that there was a public interest in publishing allegations to the contrary effect have gone due to the Order of HH Judge Parkes QC.
In the Particulars of Claim, the deproxfraud.info blogsite is termed “the First Blogsite” and the ultra-vfraud.info blogsite is termed “the Second Blogsite”. The 3 publications complained of are termed “the First Post”, “the Second Post”, and “the Third Post”.
The First Post was made on the Second Blogsite on 2 October 2017. Mr Fentiman complains of the following words:
Hack backfires!
The illegal and cowardly cyberattack on whistleblower site deproxfraud.info and on the personal Facebook and LinkedIn pages of Richard Marsh have only served to draw the attention of the NHS, Public Health England and the Health and Safety Executive to the grubby and unethical activities of Rick Fentiman and his minions at Hygiene Solutions Ltd.
The pleaded meaning of the First Post is that Mr Fentiman was responsible for carrying out an illegal cyber-attack on the First Blogsite and on Mr Marsh's Facebook and LinkedIn pages.
The Second Post was made on 3 October 2017 on Twitter and Linkedln. Mr Fentiman complains of the following words:
Deproxfraud.info is back! The site was fully restored this morning, following last week's hacker attack by Hygiene Solutions Ltd.
These words were accompanied by a photograph of Mr Fentiman, which is pleaded to have been altered by Mr Marsh “to give the impression that [Mr Fentiman] is the evil emperor from the Star Wars movies”.
The basis of this allegation is that the photograph depicts Mr Fentiman wearing a hood and with bright red “bulls-eyes” for eyes. Further, the word “HACKER” appears prominently in large font and in red type across his upper forehead. For readers unfamiliar with the Star Wars movies, I consider that the photograph nevertheless suggests a demonic element to the “HACKER” who is pictured.
The pleaded meaning of the Second Post is that Mr Fentiman is a hacker, who carried out an unlawful hack and cyber-attack on Mr Marsh the previous week, the effect of which in part had been to take down the First Blogsite.
The Third Post was made on 13 October 2017 on...
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