Zam v CFW and Another
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat,THE HONOURABLE MR JUSTICE TUGENDHAT |
| Judgment Date | 26 March 2013 |
| Neutral Citation | [2013] EWHC 662 (QB),[2011] EWHC 476 (QB) |
| Docket Number | Case No: HQ11D00728,Case No: HQ11000728 |
| Court | Queen's Bench Division |
| Date | 26 March 2013 |
[2011] EWHC 476 (QB)
Before : The Honourable Mr Justice Tugendhat
Case No: HQ11D00728
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Richard Spearman QC (instructed by Farrer & Co LLP) for the Claimant
The Defendants did not appear and were not represented
Hearing date: 3 March 2011
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Tugendhat: The Claimant is a married man. His wife is one of a number of beneficiaries of some substantial family trusts ("the trusts"). The First Defendant is one of her sisters, and another beneficiary of the trusts. The Second Defendant is the First Defendant's husband.
On 25 February 2011 the Claimant applied urgently, without notice to the Defendants, for an interim injunction to restrain the further publication of words which had been published on four occasions identified in a letter before action from the Claimant's solicitors ("Farrers") to the Defendants dated 18 February 201Those occasions were (1) two telephone calls to the public relations advisers of the Claimant's employers in late January and early February 2011, (2) a telephone call to the Claimant's employers about a week later, and (3) a letter to one of the brothers of the Claimant's wife and of the First Defendant also about a week later. The letter asked for a number of undertakings to be given by 25 February 2011.
Each of those communications was made, or purported to be made, not by the Defendants themselves but instead by an individual who I will refer to as "X". The Claimant's evidence is that he has never met X, and that he does not know whether X is a real person. The Claimant also relied on communications from another person, who I will refer to as "Y". The Claimant's evidence makes it appear likely that, whether X is a real person or a pseudonym for Y or for one or other or both of the Defendants, all the communications emanating from X and Y upon which the Claimant relies have been sent or made for and on behalf of the Defendants.
The Claimant contended that there were compelling reasons why the Defendants should not be notified of the application on 25 February 2011 (see s12(2) of the Human Rights Act 1998), namely that, if notified, the Defendants would be likely to do the very thing which the Claimant was seeking to prevent, before the Claimant could gain access to the Court and obtain an injunction. He also contended that the present case was one of blackmail.
In support of those contentions, the Claimant relied, in particular, on various documents.
First, an email from Y of 11 November 2008. In that email Y said that, so far as concerns the trusts, he had complete and irrevocable control of all funds relating to the First Defendant and her children. Y also suggested that the Claimant had misappropriated money from the trusts, and demanded the liquidation and payment to Y of part of an investment made by the trusts and compensation for losses said to have resulted from the investment. Those demands appear to explain the motive for the matters complained of in this claim.
Second, an email from Y to the senior partner in an offshore law firm dated just over two weeks ago. In that email, Y said that he had asked the Defendants' family to forward letters authorising that lawyer to discuss all of their affairs with Y and to negotiate. The email also stated that "The [Defendants'] family in their letters to you will direct you to channel all communications to me (and for [one of the Defendants' children] to [X]). And they insist that all annoyances/threats/cajoling/theatrics cease". It ended "If we have an understanding on these points, I will entreat [X] to back off his global crusade".
Third, the response to the letter before action. This is dated 20 February 2011. It came not from the Defendants (to whom the letter before action had been sent), but instead from X (who, as the Claimant contends, must have got it from the Defendants). This response is headed "CLEARED FOR WORLDWIDE PUBLICATION". It is a defiant and provocative response, which gives no indication of acceding to the demands made in the letter before action. Quite the contrary. For example, with regard to an assertion in the letter before action that "there is no more serious allegation" than one of the allegations previously made by X, it states "May I suggest that you are only saying this because you have not yet heard the rest of the allegations that are coming down the pipeline?"
Fourth, when Farrers replied on 21 February 2011, asking for confirmation that X is acting as the Defendants' agent, and that it is the intention of X to "disseminate widely the allegations you have so far set out in the three publications identified in [Farrers'] letter", X responded as follows on 22 February 2011. For one thing, X professed not to know who Farrers were referring to when they gave the first names of the Defendants and their children. For another, X wrote that he had seen Farrers' letter on Facebook and "I don't know how, but it seems to be on the verge of going viral". In addition, X wrote "on the subject of deadlines" that "here is one. February 25 th" and then followed that with a threat against the Claimant.
Fifth, an email from X to the Claimant's wife dated 22 February 2011. This makes remarks about the Claimant's solicitor and ends "Everyone on the WORLD WIDE WEB is with you".
Sixth, an email from X to Julian Pike, a partner in Farrers, dated 24 February 2011. This includes the words "Tomorrow is the BIG DAY. Julian's deadline for unleashing the tremendous powers of the UK legal system" and "will some evil person leak the entire proceedings and all the sordid details so that the irresponsible global media … can really get their teeth into [them]", and which ends "Well, you can see this is shaping up to be quite an extraordinary event. Stay tuned!"
The Claimant claimed that the words published are very seriously defamatory of him, and that there is no basis for any of the allegations in question. Among other things, he claimed that he is able to demonstrate by the evidence of independent persons and by documents that one of the allegations, relating to financial impropriety, is without foundation.
The Claimant also submitted that this is a clear case of harassment under the Protection from Harassment Act 1997 ("the 1997 Act"). He argued that (1) there is, and without an injunction there will continue to be, a course of conduct which amounts to harassment of the Claimant (see the reference in s7(2) of the 1997 Act to "alarming the person or causing the person distress" and the provision in s 7(3) that a "course of conduct" must involve conduct on at least two occasions), (2) the victim can apply for an injunction under ss1 (1A) and 3A of the 1997 Act, and (3) the Defendants could not show any of the grounds set out in s1(3) of the 1997 Act, in particular because their conduct is the reverse of reasonable.
On 25 February 2011, I granted an injunction for a short period until an early Return Date of 3 March 2011. On that occasion, the matter came back before me, and I granted an injunction until trial or further Order in the meantime. Both those hearings were in private. In addition, the Order that I made on both occasions included other derogations from the principle of open justice, including orders that all parties should be anonymised. In accordance with my usual practice, I stated that I would give my reasons in writing later, and in the form of a judgment which could be made public. These are they.
The material which was before me on 25 February 2011 consisted of 6 witness statements with substantial confidential exhibits and a detailed Skeleton Argument from Mr Spearman QC. These documents were served at an address which I am satisfied, on the evidence before me, is the current home address of the Defendants. They were served on the evening of that day, together with the Order that I made on that day and a covering letter from Farrers which advised that there would be a further hearing on 3 March 2011. The door was answered to the trainee from Farrers who effected service by a man who the trainee has been able to identify (from a Facebook photograph) as being the Second Defendant. That man declined to accept delivery of the papers, which were then posted through the letterbox by the trainee. These documents have also been notified to the Defendants by being sent to what I am likewise satisfied are their email addresses, although initially an incorrect address was used, in error, for the First Defendant.
The Claim Form, Application Notice for 3 March 2011, and other documents such as the Note of the hearing on 25 February 2011 have also been served on the Defendants, as described in the first and second witness statements of Mr Michael Colin Patrick, a solicitor at Farrers, and in a witness statement of the process server who attended what I am satisfied is the Defendants' home address on the evening of 1 March 2011. This is an application on notice, for which notice has been given in accordance with the CPR.
The words complained of consist of allegations of the most grave and serious kind, which, if true, would involve various forms of criminality. Mr Spearman submitted that, as is virtually self-evident, publication of the material in question would cause alarm and distress to the Claimant. He also submitted that it is apparent, from the words of X himself, that, through his agency, the Defendants have both understood and intended throughout that publication...
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