Siobhain Crosbie v Caroline Ley

The elements of the tort of law of passing off were set out in Reckitt & Colman Products Ltd v Borden Inc (No 3) [1990] 1 WLR 491, p499E-H (Lord Oliver):

Hence, there are three elements which a claimant must establish in order prove a defendant is liable for passing off: (a) goodwill; (b) a misrepresentation for which the defendant is responsible; (c) damage.

The nature of ‘goodwill’ in this context is often explained by reference to Lord Macnaghten’s judgment in Inland Revenue Commissioners v Mullers & Co’s Margarine [1901] AC 217, pp223-224:

As to misrepresentation, in National Guild of Removers and Storers Ltd v Bee Moved Ltd [2018] EWCA Civ 1302, the Court of Appeal considered an appeal against the conclusion that a removal and storage business was not responsible for the misrepresentation on a house moving website that it was a member of a particular trade association.

The Court (Asplin LJ) at [26] identified ‘the real question’ as being ‘whether the misrepresentation on the directory page can be said to have been ‘made’ by BM or, to put it another way, whether BM was responsible for it’.

Dismissing the appeal, the Court held at [27]:

In relation to damage, Wadlow on the Law of Passing Off, (Sixth Edn), says:

Wadlow explains at [4-29] under the heading ‘Confusion, deception and damage’ that:

At [4-30], Wadlow refers to the judgment of the Court of Appeal in Premier Luggage and Bags v Premier Co [2002] EWCA Civ 387, [37], where Chadwick LJ said:

Defamatory meaning

The common law test of what is defamatory is not controversial: see eg, Millett v Corbyn [2021] EMLR 19, [9]:

In relation to meaning, the Court's function is to identify ‘what is the natural and ordinary meaning of the [words], as it relates to the claimant’: Allen v Times Newspapers [2019] EWHC 1235 (QB), [39]., [39]. The principles to be applied are conveniently collected in the judgment of Nicklin J in Koutsogiannis v The Random House Group Limited [2020] 4 WLR 25, [11-13]:

Defence of truth

Section 2 of the DA 2013 provides:

Minor inaccuracies in a publication will not deprive him of the benefit of the defence in relation to it: Turcu v News Group Newspapers Ltd [2005] EWHC 799 (QB), [105]; Clarke v Taylor (1836) 3 Scott 95.

Standard of proof

The burden of proving the defence of truth lies (in this case) on the Claimant. The standard of proof is the civil standard, ie, the balance of probabilities.

The proper approach to the standard of proof for allegations involving criminal conduct was set out by Nicol J in Depp II v News Group Newspapers Ltd [2020] EWHC 2911 (QB), [40]-[44]:

Serious harm

At common law, in defamation cases, once the defamatory nature of a statement had been established, damage was presumed in the claimant's favour. However, following the enactment of the DA 2013, a claimant must now also satisfy the serious harm requirements of s 1. The relevant principles have been set out in a number of cases, including recently in Amersi v Leslie [2023] EWHC 1368 (KB), [144]-[163], from which the following is gratefully adapted. The leading case is the Supreme Court’s decision in Lachaux v Independent Print Ltd [2020] AC 612.

Whether the publication of the statement has caused or is likely to cause serious reputational harm is a matter of fact, ‘which can be established only by reference to the impact which the statement is shown actually to have had. It depends on a combination of the inherent tendency of the words and their actual impact on those to whom they were communicated’: Lachaux, [14], per Lord Sumption.

In Sivananthan v Vasikaran [2023] EMLR 7 Collins Rice J set out some more principles in relation to serious harm:

Even before the introduction of the new threshold requirement in s 1, assessment of harm to reputation was never just a 'numbers game': ‘one well-directed arrow [may] hit the bull's eye of reputation’ and cause more damage than ‘indiscriminate firing’: King v Grundon [2012] EWHC 2719 (QB), [40]. Publication to a relatively small number of publishees may yet cause very serious harm to reputation: Sobrinho v Impresa Publishing SA [2016] EMLR 12 [47]; Dhir v Sadler [2018] 4 WLR 1 [55(i)]; Monir v Wood [2018] EWHC 3525 (QB) [196].

It is well-recognised that a claimant may struggle to identify, or to produce evidence from, all those to whom an article was published and in whose eyes his reputation was damaged: Doyle v Smith [2019] EMLR 15, [122(iv)]; Sobrinho, [48]; Ames v Spamhaus [2015] 1 WLR 3409, [55]. In mass publication cases, it may also be invidious for a claimant to have to seek out those who substantially thought the less of him because of a defamatory publication and, often, it will not be necessary to do so (because ultimately the evidence is likely to go to damages not liability). Whether a claimant can be expected to produce ‘tangible evidence’ of serious harm to reputation caused by a publication will depend on the circumstances of publication: Ames, [55].

In Turley v Unite the Union [2019] EWHC 3547 (QB), [107]-[109], Nicklin J summarised the relevant principles as follows:

The Defendant’s claim in harassment is brought under the PHA 1997. Section 1 provides:

Prohibition of harassment.

Section 7 of the Act makes further provision as follows:

The key principles were discussed by Nicklin J in Hayden v Dickenson [2020] EWHC 3291 (QB), [40]-[44]. These were approved by the Divisional Court in Scottow v Crown Prosecution Service [2021] 1 WLR 1828, and applied in Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso Victor Maria De Borbon y Borbon [2023] EWHC 2478 (KB), [69]-[73].

Nicklin J said in Hayden:

Given the Defendant’s stance on her data protection claim, I will pass over the principles for now and return to them later if I need to.

I reviewed the authorities on how a court should go about evaluating evidence in Aaronson v Stones [2023] EWHC 2399 (KB), [247]-[253]. It is sufficient here to cite the often quoted words of Robert Goff LJ in The Ocean Frost [1985] 1 Lloyds Rep 1, 57:

The papers in the case are voluminous. As well as my detailed trial notes, I have audio recordings of the trial to which I have cross-referred whilst writing this judgment. I also had trial Skeleton Arguments from counsel for the Claimant and the Defendant, a Chronology, and written Closing Submissions from Mr de Wilde for the Defendant. The Claimant produced her own written Closing Submissions after the trial, for which I was grateful.

The Claimant was the first witness. She adopted her first witness statement of 12 December 2022. (She made two other witness statements, both of which I have read. From now on, all references are to the Claimant’s first witness statement unless otherwise noted). In that statement, she set out her background as a counsellor and the establishment of APS. She met the Defendant in 2005 when they were both on holiday in Thailand. They lived near each other in East London and stayed in touch after their return. In due course the Defendant began to train as a therapist. She did part of her training with the Claimant, and then qualified and began working as a therapist. The Claimant said that her relationship with the Defendant changed as the Defendant neared qualification.

In 2011 the Claimant noticed a drop off in business. She could no longer afford to rent all the rooms in the Premises she had formerly rented. She got into debt with the landlord. She said that the Defendant’s practice appeared to do well from the outset. She said she discovered later that phone calls intended for her were being diverted to the Defendant’s mobile phone.

The Defendant initially worked from the Premises and appeared on the APS website. Eventually she and the Claimant fell out over business matters, and the Claimant ceased contact with her in early 2012. In January 2012 the Defendant began to practice from premises in Loughton.

In March 2016 the Claimant discovered from a colleague that Psychotherapy Experts had a listing with APS’s website address, but with the Defendant’s mobile number. The Claimant said at [27] of her statement:

At [28] the Claimant said that she then investigated via Google, and discovered that her Google listing had a ‘Call’ button which when pressed rang through to the Defendant’s mobile number. She also said the Google directions link to APS took her to the Defendant’s business address. She said, ‘For the avoidance of doubt, at no point did I give authority for the Defendant to hijack my business.’ She also said that the Defendant had used a photograph from the Claimant’s website on her own site. She said that what the Defendant had done ‘would create a perception to the public that APS belonged to the Defendant’ (at [30]).

The Claimant said she contacted the Defendant and told her she would be taking matters further. She said that the Defendant told her that she had created the listing in 2009. Shortly afterwards, the Defendant contacted her to say ‘that she had closed her Google account down and hoped ‘that it resolved my problem’. She said the Defendant did not mention merged listings or a problem with Google at that time. The Claimant said that by then, the damage to her business had been done.

At [34] the Claimant said that what she alleges the Defendant had done explained the drop off in her business from 2011 and the growth in the Defendant’s business, and that ([34]):

The Claimant said she then contacted Google. She also contacted the police. (The Defendant later attended a voluntary interview with the police, accompanied by her solicitor, which I will address later).

The Claimant then dealt with her understanding of Google listing (at [46]-[48]). I can pass over the details. She said at [48]:

At [49] the Claimant said that she felt it was her duty to inform other therapists and counsellors about what she said the Defendant had done. She said she believed she had ‘an ethical duty to warn my own peers’ ([50]).

At [51] she said:

The Claimant was then cross-examined by Mr de Wilde. His first topic was passing off.

She said her practice would receive telephone inquiries via word of mouth referrals and internet searches. She had her practice, and she rented rooms to other therapists. The building was owned by a landlord.

She was shown a Facebook post by her from 2014 (Core B/p739) and accepted that she had said her business was based primarily on referrals from current clients rather than her website. However, she added that was because, ‘the fraud had already taken place’. This post also referred to her business ‘thriving’.

The drop off in landline inquiries began in about 2010. She did not have paperwork for before that time.

She contacted a man called Adrian Pennington, her clinical supervisor, and said the phone had not been ringing for three months.

The enquiries were for counselling. She would talk to the potential client and either take them herself or refer them to another therapist. They were only allowed to work a maximum of 25 hours per week.

There were a mixture of central inquiries to her, and also direct enquiries to other therapists.

She was shown an email to Mr Pennington (Core B/p289) from 7 January 2012 in which she complained of lack of money/clients and expressed the hope that things would get better. Her practice was not going well. She had by then reduced her room rentals from three to one. She said her problems had begun earlier than that.

On 17 November 2011 she sent an email to other therapists wanting them to move to fixed contracts for their rooms at a monthly fee of £108.33 per month for five hours of appointments per week, and double that (£216.66) if more than five hours were required (Core B/p219). She said the email expressed a preference for direct debit, but she would not have refused ad hoc payments if someone did not sign up. They had the option of both.

It was put to her the point about ad hoc payments was not true, but she said she did not refuse to rent to anyone. She agreed, though, that the email said they had to move to fixed contracts.

Later in the email she said things had not been going well and more referrals were needed. She said by then the fraud had occurred and calls were drying up and that was the reason she had had to change the rental system. She said the fraud had occurred between 2010 and 2011.

The Claimant was shown her witness statement to the police of 2 June 2016 (Core B/p586). She agreed the Defendant had left the Premises at the end of 2011 and started renting a room elsewhere in January 2012. She also agreed she had told the police that referrals dropped off after the Defendant had left. But in answer to a direct question from me she maintained the drop off began in 2010.

Mr de Wilde’s next topic was misrepresentation, which he said was what passing off claim was all about.

The Claimant agreed that she and the Defendant parted ways in about December 2011, and from then on were no longer friends and had no further contact. The Defendant ended up working from Cherry Tree Therapy Centre.

She said a colleague had informed a Facebook group that they were being advertised on Psychotherapy Experts (a trade website), of which she had no knowledge. She then went and had a look.

Core B/p568 was the listing in question. It had APS, the Claimant’s trading style, with ‘Buckhurst Hill Counselling and Psychotherapy’ (the Defendant’s first trading style) underneath; then the Defendant’s phone number ending ***857; and then South Woodford and a postcode (E18 1BG), which is for the Premises.

The Claimant said that the police contacted Psychotherapy Experts. She also contacted them. She was asked whether she accepted that the Defendant had not created this listing and said that she ‘could not answer 100%’.

She was then shown Core B/p580, which contained emails from the Defendant to Psychotherapy Experts asking how the listing had appeared. On 17 May 2017 the publisher wrote in response to the Defendant’s enquiry:

The Claimant said she was shown another listing from Psychotherapy Experts for ‘Transitional Therapies’ (Code B/p569), which was at one time a trading style of the Defendant. This had her ***857 phone number, but the same South Woodford postcode for the Premises (which by the time of the listing was five years out of date).

The Claimant accepted the contents of the publisher’s response to the Defendant. She also accepted on the basis of an email sent by the publisher to the Defendant in 2017 (Core B/p582) that psychotherapyexperts.co.uk was registered as a domain in February 2016 (they could not say when the directory went live).

The Claimant agreed that from memory she contacted Psychotherapy Experts in March 2016. She also agreed that meant that because the Psychotherapy Experts website did not exist until 2016, it could not have been responsible for any confusion between her business and that of the Defendant between 2011 and 2016.

Mr de Wilde then moved to the Google listing and took the Claimant to Core B/pp237-8.

He explained that if you had searched (for example) ‘Essex Therapists’ on Google Maps, then pins would have appeared on the map representing therapist businesses. Page 238 (a screen grab) shows what would have appeared if the user had clicked the pin at the location of the Claimant’s Premises in South Woodford. It shows ‘Buckhurst Hill Counselling and Psychotherapies’ with the Defendant’s ***857 phone number and a ‘Call’ button, but with the Premises’ address and postcode (ie, APS’s address and postcode). Underneath that was ‘More about Buckhurst Hill Counselling and Psychotherapy’ and then underneath that, ‘APS Psychotherapy and Counselling’, and then underneath that, the URL for APS.

Page 237 shows what would have come up if the ‘Call’ button on p238 had been clicked, namely, the Defendant’s number would have come up.

The Claimant agreed her passing off case rested on this material.

She said that in 2011 she did not know the Defendant was trading under ‘Buckhurst Hill Counselling and Psychotherapy’. She came to know of it in 2016.

She said these pages showed the Defendant’s phone number, but the address is where she practised from (and the Defendant did in 2011).

The Claimant said this listing was a ‘business hijack’ by the Defendant and passing off. She did not accept that the Defendant could claim the same, because the Claimant’s business name and address was attached to her listing.

She did not accept this listing had been created by Google and not by the Defendant (ie, she denied any software merger).

She was taken to Core B/p574. This is a review by someone called Rebecca Elliott, which was attached to the listing at Core B/p238. It related to a therapist called Louisa, who worked with the Claimant at the Premises. It was a positive review. The Claimant agreed that she responded to the review, but disagreed its appearance on the merged listing was a ‘mix up’ by Google. She agreed that the Defendant would not have not attached the Claimant’s response to the Defendant’s own listing. She also agreed that for the Defendant to have attached the Claimant’s review to her listing would not have helped the Defendant if the listing was a fraud. The Claimant was vague, but thought the review had been left in about 2015.

The Claimant was then taken to Core B/p594, which was her listing. The large photo of a treatment room is dated February 2015.

Mr de Wilde said that the Defendant’s case was that what happened was the result of Google’s software ‘colliding’ an old listing for the Defendant’s business with a more recent listing (from 2015 or so) for the Claimant’s business.

The Claimant said she thought she created her own listing in 2006 or 2007, but it had been up for years.

At this point, in exchanges with me, Mr de Wilde made clear that at the heart of his case was that, however precisely the merged listing at Core B/pp237/238 had been created, it was not by his client; and therefore she was not liable in passing off because there had been no actionable misrepresentation by her or for which she was responsible.

Mr de Wilde then turned to the third element of the tort of passing off, namely confusion and damage.

The Claimant said the fraud caused her to have to give up two rooms and therefore very seriously damaged her business.

She agreed there was no evidence that anyone had called her business and said (for example), ‘I was trying to call you but spoke to Ms Ley by mistake’.

She was shown [35] of her witness statement, where she described an ‘ex-client connected to the Defendant’ coming to the Premises in 2014 asking for the Defendant, and saying that he thought APS was her business. She said the person had been a client of the Defendant whom she had referred on to the Claimant. The person had not looked on the internet.

She agreed records had been disclosed by the Defendant for an answering service she had used (answer.co.uk). The Claimant agreed that these records did not show anyone had ever called the Defendant looking for her (Core B/p494).

She said she had always traded as APS and under her own name. She said her concern was people seeing the APS listing but then pressing ‘Call’ and ringing the Defendant. She said she believed that that is what had taken place.

She said the nature of therapy is that those seeking it, if they had been wrongly put through to the Defendant, would not have said they were actually looking for the Claimant. They would just generally have requested a call-back.

Mr de Wilde then moved on to losses. The Claimant said her claimed loss was for three rooms and said that the police had calculated her loss at £1.655 million.

She said she had had to give up two rooms because of the fraud.

She was taken to her PoC at [19] and the claimed damages figure there of £1.422 million plus interest. She said those are the damages she is seeking.

She was challenged about her claimed hourly rate of loss of £21.67 in the table in [19], as against the rate of £5 per hour she offered to therapists in the email to them of November 2011. She could not really explain the discrepancy.

However, she agreed that the figures in the table were not accurate. For example, she agreed that it was unrealistic to base her loss on 14 hours a day (from 8am – 10pm) of lost rental fees (at the questionable rate of £21.67 per hour) for every day of the year because, for example, there would not have been 14 hours a day of therapy every single day of the year including on Christmas Day, Easter Sunday, Bank Holidays, Sundays, etc.

She disagreed with the suggestion that the figures in the table were ‘grossly exaggerated’, and said she had lost a lot of money.

She was asked about an allegation she had made in her witness statement at [64] that the Defendant had dissipated £2.9 million, and committed other acts of deception. She said her allegations were based on marketing material sent to the Premises in the Defendant’s name relating to her son’s company (CJS Ley Ltd).

Mr de Wilde then moved to the counterclaim and social media posts made by the Claimant. She was taken to Core B/p613, a thread on a counselling group public Facebook page. The thread included posts by the Claimant about the Defendant’s alleged fraud from May 2017.

She wrote in a post, ‘The police have put it in writing to me it costs too much to implement the [Mutual Legal Assistance Treaty with the United States] even though it's designed and created for this specific reason’ (MLAT). She said that that was what the police ‘had led her to believe’. She also said the police had classified it as fraud. She also wrote, shortly after that, ‘The police interviewed [the Defendant] under caution, she acknowledged she did it, but blamed it on google.’ Again, she said that that was what the police told her.

The Claimant said that the Defendant had messaged her and said she had created the listing seven years earlier.

It was put to her that on 29 September 2016 the police had confirmed they were taking no further action. She said she could not confirm the exact date.

She was then taken to Core B/p675, a letter dated 11 May 2021 from the Metropolitan Police’s Directorate of Professional Standards (DPS) to the Defendant. The Defendant had complained to the police about things which the Claimant had said on Facebook she had been told by DC Yaw Annor (the investigating officer), including (for example) that the Defendant had admitted fraud. The letter from the DPS said (emphasis in original):

The Claimant did not accept the contents of this letter, and said that a freedom of information request she had made supported at least some of what she had said, for example in relation to the MLAT. She maintained the reason there had been no prosecution was not due to lack of evidence but an inability to ‘get the information from Google’. She denied the suggestion that she had been ‘only hearing what she wanted to hear’.

I was taken to the exhibit SCO2, which the Claimant filed shortly before the hearing. A document at p97 is an entry in police records from DC Annor saying that DS Vint had advised him that a mutual legal assistance request to the US would be necessary to obtain documents from Google and that ‘the MLAT will take a minimum of a year to obtain and as the loss is hypothetical it would not be reasonable to continue this investigation for another year’. There was then a reference to ‘Outcome Code 15’, namely: ‘

The Claimant maintained the police told her they would prosecute if further evidence came to light and ‘they advised me to go down the civil route’.

I was also referred to a document (undated) at SC02/p101 which said (sic):

It was unclear on the face of the document who wrote this, when, or whose belief exactly was being referred to. In her second witness statement at [34] the Claimant said it was written by DC Annor. For reasons I will explain later this document does not assist the Claimant.

Mr de Wilde then moved to the Claimant’s publications giving rise to the counterclaim. The Claimant said she ‘absolutely’ believed then to be true.

I was taken to a Facebook thread at Core B/p637 in which the Claimant wrote of a ‘£1.6 million claim’. At p640 she wrote to another user, ‘It is criminal.’ At p644 she wrote, ‘fingers crossed for me. Otherwise it's other avenues like a hit man lol.’ As to this last comment, she denied it was a threat of violence and described it as ‘Irish banter’. She accepted that in her posts she was giving a ‘forceful account’ of her case including that it involved seriously criminality by the Defendant.

She was shown a post warning her about libel risks, and said she had been told by an unnamed police officer (not DC Annor) that there was no libel risk. She later said that she did ignore the warnings, as she thought the Defendant would take no action unless she brought an action.

She accepted (Core B/p612, p657) that she had posted enough that the Defendant would have known she was being referred to (even if others may not have done).

The Claimant said she launched a crowdfunding website on GoFundMe in 2020 (Core B/p917). She accepted making a series of attacks on the Defendant. She reported the Defendant to multiple (quasi) regulators. She also complained to the University of East London (UEL), with which the Defendant had connections. She accepted her then solicitors, Tiger Law, had sent an aggressive letter of claim dated 30 July 2020 seeking payment of £2.4 million (Supp Bundle 1/p231). This also stated they were advising the Claimant on a private criminal prosecution.

Core B/p930 was a Twitter exchange between the Claimant and another therapist in May 2020 in which the Claimant named the Defendant and said she had admitted the matter under caution. She accepted that many people would have seen this. She was taken to other similar publications by her which named the Defendant (eg Core B/p942).

Mr de Wilde’s final point to the Claimant was that her claim was a form of extortion because it involved a hugely exaggerated financial claim which made ‘no sense at all’; she had made publications which had made the Defendant’s life a misery; and that within the litigation she had included hurtful, sensitive and irrelevant information to cause her further intimidation and distress; all with a view to trying to force a settlement. The Claimant disagreed. She said she had hoped the Defendant would take action against her. She wanted other people to be aware of what she said the Defendant had done.

In re-examination, the Claimant said one of the Facebook threads was just for therapists, the other was public/open; her Twitter was locked down (ie, to view you had to be a follower of hers).

She said those who read her ‘hitman’ comment, for example, had not taken it seriously although they were angry for her. She had put ‘lol’. She said the Defendant had a right of reply.

The next witness was Peter Phelps. He adopted his witness statement. He is a therapist with practices across London including in South Woodford He worked with the Claimant from 2008. He received referrals from her, and the volume of referrals went down from 2011. He said as far as he was aware, it was just the referrals from the Claimant which declined, his practice was otherwise healthy as were other therapists’ practices. Before 2011 the Claimant’s practice was doing well.

In cross-examination he said he did not rely solely on referrals from the Claimant. He said he did not have a detailed knowledge of the disputed listing. He was made aware of it by the Claimant in 2016 but did not see it himself. He said he believed he lost several thousand in income through the Defendant’s actions. This assertion was based on what the Claimant told him. He said he was not just making up evidence to help the Claimant. He was shown a letter he had written in 2020 to the Claimant saying that referrals had declined from early 2012 (and not 2011, as he said in evidence). He said the drop off had been ‘around this time’, and he could not help on precise dates.

The next witness was Rob Frazer. He said that the Claimant’s business had been thriving when he first came across her in 2008/9. Her business went down quite markedly and she had had to give up rooms. She commented that the Defendant seemed to be thriving and was perplexed. She said, ‘I think she must be good at IT’. His impression was that the dip was just for the Claimant, and there was not an industry dip at this time. He said, ‘It was all a bit perplexing.’

In cross-examination he agreed that he had worked at the Premises and received referrals from the Claimant, but his practice was not solely based on referrals from her. In 2011/12 his practice was just starting and when it dipped for her it dipped for him. In 2010 she had been expanding but then in 2010 and 2011 her practice decreased. When the Defendant finished her training her private practice grew and the Claimant’s went down – it was ‘inversely proportional’.

The next witness was Sally Baker, a senior therapist and the Claimant’s clinical supervisor. She adopted her letter of 31 October 2022. Her role is to support therapists in their practices. Her role depends on the level of the therapist’s experience. She has known the Claimant since 2021. A trainee would not work on their own. They need to have supervised work. The Claimant was very experienced.

She said she would expect a therapist who had concerns about another therapist to air those concerns and if necessary to go to the governing bodies. She said she had no knowledge of the Defendant’s practice and training in 2010 and had no knowledge of the Claimant’s publications.

David Sleet was the next witness. He set up an organisation called APA with the Claimant which aimed to raise standards in the therapy industry. I think I can largely pass over his evidence, except he explained that the Claimant had left a review in the name of APA of Cherry Trees Therapy (the Defendant’s business) alleging fraud, which should not have been in APA’s name, but in the Claimant’s own name. The Defendant made a complaint to APA.

The evidence of the Claimant’s last witness, Paul Silas, was taken as read. This was character evidence about the Claimant.

That was the Claimant’s case.

The Defendant’s first witness was Delrene Walker. She is a therapist. She worked at the Premises and rented a room from the Claimant. Then, when the Defendant left at the end of 2011/early 2012, Ms Walker went with her to premises in Loughton. She is friends with the Defendant, whom she described as a ‘brilliant businesswoman’ with ‘enormous energy and commitment’ and so has been successful as a result. She said it would have been out of character for the Defendant to have done what the Claimant has accused her of, as she is honest and straightforward.

In cross-examination, she said she had rented a room at Cherry Tree Therapy Centre, the Defendant’s current business. She had also worked with her in Loughton, and before that at APS at the Premises.

The next witness was the Defendant’s son, Charlie Ley. He was called mainly because of evidence in the Claimant’s witness statement at [62]-[63] alleging that the Defendant had been director of a company called CJS Ley Ltd, and some veiled suggestion by the Claimant (mentioned earlier) that the Defendant had tried to move assets, including money belonging to that company.

Mr Ley explained that starting as a teenager he built a successful and lucrative YouTube business producing gaming videos. As the business grew, the Defendant suggested to her accountant that Mr Ley needed to form a limited company. The Defendant had a dormant company of which she was the director and shareholder, Transitional Therapy Ltd. The accountant suggested changing the name of the company; that the Defendant resign as a director and be replaced by Mr Ley; and that her shares be transferred to him. The accountant said doing this would be cheaper than forming a new company. This was therefore done, and Transitional Therapy Ltd became CJS Ley Ltd. The Defendant had no involvement after October 2014 and it became the vehicle through which Mr Ley ran his video business. Eventually, in 2019 he sold the company for a substantial amount of money.

The Defendant then gave evidence. She adopted her first witness statement. She made a second witness statement, however from now on all references are to her first witness statement unless otherwise noted.

She first dealt with her background. After a career as a full-time mother she became a social worker, and also worked for her father’s company until December 2011. She met the Claimant on holiday in 2005 and they became friends. They were close and in the early years the Claimant helped her through a period of personal and relationship difficulties.

Around 2007/2008. the Defendant began a diploma course in counselling and psychotherapy. When she first met her, the Claimant was working from a room in South Woodford and later moved to the Premises, which had a number of rooms. It was owned by a Roger Fry, and initially the Claimant rented a single room. She said the Claimant initially planned a joint venture with two other therapists (APS being their initials) but this did not happen and the Claimant used APS as her personal trading style. The website apspsychotherapyandcounselling.co.uk was registered in March 2009.

In 2008 she began a post-graduate diploma at UEL and eventually APS was approved as a place where she could do her placement. She started there in January 2009. Adrian Pennington was her clinical supervisor and she gave her client fees to the Claimant (which was standard practice). She saw about seven clients in 2009 and 2010 and these mainly came through the Claimant. She also referred a couple of clients to APS. In June 2010 she was awarded her diploma.

In May 2010, shortly before qualifying, she registered a domain name for ‘Buckhurst Hill Counselling’ (buckhursthillcounselling.co.uk) in the anticipation that she would eventually use it to develop a site for her own practice. She chose Buckhurst Hill because that was where she lived, and she had started to create a counselling room in a spare room in her house that she had intended to use. She continued to work for her father’s company and continued to see her APS clients.

In summer 2010 she built a website with the trading style ‘Buckhurst Hill Counselling & Psychotherapy’ (ie BHCP) which went live in October 2010. In September 2010 she registered as a sole trader with HMRC.

The Defendant undertook further courses to develop her skills, and in October 2010 registered a second domain name (transitionaltherapy.co.uk). She had met another therapist and they planned to open a business ‘Transitional Therapy’. In the event the other therapist decided not to go ahead, and so the Defendant proceeded alone.

In [29] of her witness statement she said this, which is important for the purposes of this case:

In 2011 the Defendant commenced a master’s degree, and she also created a website for www.transitionaltherapy.co.uk . Her income from counselling in the tax year 2010/11 was less than £2000.

In [34] she said:

In mid-July 2011 the Defendant was added to the APS website. She also introduced Delrene Walker to the Claimant, and Ms Walker began to rent a room at the Premises on an ad hoc basis.

During 2011 the Defendant’s business began to grow and she was able to refer clients to the Claimant and to Ms Walker. She also decided to focus exclusively on counselling and so deferred her master’s degree and decided to stop working for her father.

During 2011 the Defendant’s relationship with the Claimant became, as the Defendant put it at [41], ‘increasingly strained’. The exact reasons do not matter. It became (or had become) clear to the Defendant that the Claimant’s business was not doing well and that she was going to give up some of the rooms she rented, and there was friction between the two about various matters. At the end of 2011 the Defendant decided to move out of the Premises entirely and saw a room she liked in Loughton.

Around that time, rooms were being offered in The Premises for between £10.50 and £14 per hour, although the Defendant herself paid £10.

On 17 November 2011 the Claimant sent the email to therapists about room contracts that I mentioned earlier. The contract was for £108.33 per month, for five hours’ room rental per week. This equated to a room rental charge by the Claimant of £5 per hour as follows:

In late December 2011, APS’s website was advertising rooms at £5 per hour.

This figure will become important when I come to the Claimant’s pleaded losses.

The Defendant took the decision to take the room in Loughton and give up The Premises and the Queen’s Therapy Room. She moved out just before Christmas 2011. She said she thought the Claimant viewed this as an ‘act of betrayal’, but as far as the Defendant was concerned things had become uncomfortable, and so she was ready to move on. Ms Walker came with her and gave up renting at the Premises.

On 1 January 2012, the Defendant moved into the counselling room in Loughton. She still had her Google+ Local (as she believes it was then called) listings for Transitional Therapy and Buckhurst Hill Counselling (as well as websites for each). She amended the listings to the Loughton address so that old clients searching for her services would see that she had changed location.

During this period, enquiries came through several avenues. She continued to pay for an advert in the Counselling Directory she had taken out previously, and she continued to receive enquiries through the Transitional Therapy website. She also pursued a number of networking opportunities in an effort to build her client base. For the tax year 2011/12, her earnings from counselling were £12,726.

In October 2012 the Defendant was informed by another therapist called Louise, who had recently met up with the Claimant, that she had expressed hostility towards the Defendant. The Claimant blamed the Defendant for ‘taking away her business’. The Defendant said she was not surprised at the hostility, but that she had not taken any of the Claimant’s business; the only lost income was from the Defendant’s room rent and that of Delrene Walker.

In 2012 the Defendant moved her practice to Woodford Green. In early 2013 she formed Transitional Therapy Ltd, although this remained dormant. Her income for 2012/13 was £23,682. In October 2013 she obtained her master’s degree. Her income in 2013/14 was £22,310.

In the spring of 2014 the Defendant found premises in Cherry Tree Rise, Buckhurst Hill, to operate her counselling business from, and rebranded as Cherry Tree Therapy Centre. On 6 April 2014, she registered the domain name cherrytreetherapycentre.co.uk, and started to build a new website. She began working from the Centre at the end of May 2014.

Around this time she ‘redoubled’ her marketing efforts in order to attract new clients, eg, by newspaper advertising; contacting local GP surgeries and health centres; distributing leaflets in the neighbourhood; and holding ‘taster’ days at the Centre, where people could drop in to meet the Defendant informally.

During this period, she decided to abandon the Transitional Therapy brand and focus exclusively on Cherry Tree Therapy Centre. On 24 September 2014, she instructed her accountant to file dormant accounts for Transitional Therapy Ltd, and then close down the company. She then dealt with how her company had become CJS Ley Ltd, which I explained earlier.

Her income in 2014/5 from counselling and room sub-rentals was £32,970.

By March 2016, the Defendant had six counsellors and psychotherapists working regularly from Cherry Tree Therapy Centre (in addition to herself). She said the Centre had built up a good reputation in the local area. For the tax year 2015/16, her turnover was £47,566.

I now turn to the Defendant’s account of events from March 2016, when the Claimant started to accuse her of passing off her business as the Claimant’s business via the Google listing.

The Defendant was first contacted by the Claimant on 26 March 2016. She said at [74]:

The Defendant says she looked at the APS website and saw she was still listed there, even though she had not worked there for some years. She mistakenly believed that that was what the Claimant was referring to. She told the Claimant she was happy for her to remove her details, and that she had no control over the APS website.

The Defendant went on at [77]-[78]:

The Defendant then exchanged messages with the Claimant telling her she would do her best to delete the listing, even though it was old. She also said that if anyone had contacted her in error looking for the Claimant she would have passed them on to her. This did not appease the Claimant, who maintained that she was going to take matters further.

For several days the Defendant tried to gain access to the old listing. She did not want a Google listing of hers directing people to the Claimant’s website. She said ([80]) that she could have lost prospective business that way, and that in any event she had no desire to be publicly linked with the Claimant.

The Defendant then did some work on Google to try and rectify matters by changing/updating the details to her current business, and she received confirmation from Google of the changes (although it said the changes would take some time to take effect). However, when the Defendant checked, searching for APS still brought up her listing, so in the end she just deleted it and told the Claimant that she had done so, in a message dated 31 March 2016. In another message (Core B/pp539-540) she told the Claimant to stop contacting her:

Matters then took a turn in July 2016 when the Defendant received a call from the police asking her to attend to be questioned following the making of an allegation of fraud by the Claimant. She attended Romford police station and was interviewed. The Defendant said ([84]):

The Defendant has produced in her exhibit CSL1 a police summary of her interview. She went through the history, and creation of listings, but it is sufficient to note for now that she did not admit to creating a listing with both BHCP’s details and her phone number, and also the APS web address. She said at [86] of her witness statement:

DC Annor’s closing report of 9 September 2016 (Core B/p370-1) stated:

On 12 May 2017 the Defendant received a letter before claim from the Claimant’s then solicitors, Russell Cooke, alleging passing off and unlawful economic interference. It also alleged that the Defendant had committed criminal offences. The claimed loss (at [18]) due to a drop off in business was put at £632,790.06.

Receipt of this letter caused the Defendant to do further work. She contacted Psychotherapy Experts, who told her that they had obtained their information from Google. The relevant website had only existed from February 2016, which means, given the details were removed following the Claimant’s complaint in March 2016, that listing could only have been up for a matter of weeks when the Claimant discovered it.

At [92]-[93] the Defendant said:

In her statement from [95] onwards the Defendant dealt with her claim in defamation and harassment. In summary, she discovered from being told by peers that the Claimant had been making public allegations about her and that although the Defendant had not been named, people had been able to work out who it was the Claimant was referring to. An acquaintance emailed her some of what had been posted and she was shocked and distressed at what she read.

The Defendant then went through the various publications, including the Claimant’s repeated claims that the Defendant had ‘admitted it’ to the police. At [108] she said:

At [121], [123], the Defendant said:

The Defendant reported the Claimant to the police for harassment, however after an investigation no further action followed.

The Defendant then dealt with the resumption of the Claimant’s online postings in 2020. She was informed by an acquaintance that the Claimant had started a GoFundMe page to raise funds for civil proceedings against the Defendant. She at [130]:

At [131] the Defendant estimates that the GoFundMe campaign was posted to many thousands of people on Twitter. Further social media posts alleged that she was a ‘dangerous, unethical, criminal therapist from whom the public, the counselling profession, and clients needed protecting’ ([135]). At [136] she said:

At [139] the Defendant said that it was difficult for her to keep track of all of the Claimant’s posts because there were so many of them, but that the Claimant had targeted counselling professionals, companies, and organisations in order to maximise her reach. The Defendant’s details, including her business name and location, were included in some posts.

In May 2020 the Defendant reported the Claimant to the police for a second time for harassment, however the police concluded it was a civil matter.

In July 2020 the Defendant received the second letter of claim from Tiger Law, which I mentioned this earlier. The Defendant said of this at [158]:

This letter also referred to the Defendant having ‘siphoned off’ the Claimant’s income. It said that the police ‘cyber crime squad’ had calculated ‘predicted lost rental income’ to be £1.6 million. It again mentioned the possibility of a private prosecution.

In 2020 the Defendant said that Claimant continued her harassment, including by making contact with UEL, where the Defendant had been working and by whom she had been offered a permanent contract. The Defendant felt unable to take this up because of the Claimant’s actions. The Claimant made a number of additional allegations, including that the Defendant had seen clients whilst training and not permitted to; and that the Claimant was going to seek to have the Defendant’s qualification revoked.

At [170] onwards the Defendant dealt with complaints – which she says were false – by the Claimant about her to professional therapy bodies such as the British Psychological Society.

At [180] the Defendant set out what she believes happened with regards to the listing (and produced a number of articles and other material to support her contention that Google’s software can and does merge business listings as a result of a ‘glitch’):

An example of what the Defendant found is this, from Search Engine Roundtable (www.seroundtable.com) dated April 2009 (Core B/p861):

At [186]-[187] the Defendant concluded:

The Defendant was then cross-examined by Mr Siriwardena on behalf of the Claimant.

She did not send cease and desist letters but consulted solicitors about sending such letters. She did not report the Claimant to her professional membership bodies because she did not think it was a matter for them, ie, she did not see it as a counselling matter.

Her case is that the merged listing happened because of how Google’s technology works.

The site www.transitionaltherapy@gmail.com was set up in January 2011. She did not use it for Google related matters. Between January and June 2011 she would have set up the listing for Buckhurst Hill Counselling and Psychotherapy (BHCP). She verified it via a postcard sent to her by Google to the Premises’ address. It contained a code and she went online and entered the code to verify the listing.

In the first half of 2011 she began to the rent ad hoc the room at Prestige House and set up a second listing for BHCP at Prestige House on Google My Business.

She explained that once you set up a business listing it appears on Google Maps with an icon, which when you click it, brings up the listing details at the side of the page (address, phone number, etc). If there is some kind of error you can edit it yourself; there is a ‘backend’ where changes can be made.

She created the listings to generate business.

She was asked whether she got updates from Google to the registered email; she said that Google has changed over the years, and that you do now get quite a lot of data (and have done for the last four or five years), but not at the time. She only went into the listing when she needed to change it. She reiterated that these days you get a lot of data but back then, not so much.

She moved to a room in Loughton in 2012 and then to Woodford Green later that year. She changed her listings when she moved; she said you could either amend the details, or delete it.

She bought the domain name for Transitional Therapy in October 2010 – but did not get a server for it until April 2011 and the website was complete in June 2011. She did not get statistics about use of the website.

She moved to Cherry Tree Rise in 2014 and registered a website for Cherry Tree Therapy Centre, but she still had the transitionaltherapy.co.uk website and also the BHCP website. The Cherry Tree Centre was the building and Transitional Therapy was her work within it.

She started in 2010. The majority of her clients came from online directories. The websites were created for business purposes. She did not necessarily check numbers of ‘clicks’ if the phone was ringing.

She was asked about people leaving reviews. She said that people cannot leave reviews on her websites because they are not set up that way. She said you would get an email if someone left a review on the Google listing. She did not have any reviews on the BHCP listing.

She paid for a web designer, and her own web skills were limited back then.

She had an intake form from about 2012 which asked clients where they had heard of her, however it was not until 2016/17/18 that she made more of an effort to find out where people came from.

She was taken to the ‘merged’ listing (Core B/p238). The ‘Call’ button would go to her mobile number. The directions would go to the Premises.

The Defendant reiterated in response to a question that the first she knew about the merged listing was when the Claimant told her about it in March 2016.

She said she had sought to use a photo of an APS website on her BHCP website in 2010 but the Claimant had been upset and wanted £50, so she did not use it.

When she found about the merged listing in 2016 she was concerned that people who were looking for her/BHCP might click on the APS website link (eg, for more information) and go there instead.

She said initially when she saw it, she thought that the Claimant had changed the listing; it was only later that she began to think it was a Google issue. She later deleted it.

It was when she received the letter before action in May 2017 that she really began to try and get to the bottom of what had happened.

She sent Google an email – they replied you could not have more than one business at the same address because of the risk of a merger.

She started to do research, and there was lots of information on forums from people who had had the same issue.

The Defendant said she had been supervised by Adrian Pennington. The Claimant had been her placement manager. The Defendant had respected her.

Her relationship with Delrene Walker is that they are colleagues and friends. Their relationship has developed over the years.

She was then taken to some pages in the exhibits.

She was shown Core B/p229 and confirmed this is what the police showed her in 2016 (and is the Psychotherapy Experts listing)

Core B/p308 - this is a page from the BHCP website from October 2010. She had BHCP, and was then still working at APS’s Premises (renting a room from APS).

Core B/p396: the Defendant’s words are in blue on the right hand side. She was talking about how competitive counsellors could be. She was not talking about the Claimant specifically. This was a conversation with a colleague.

Core B/p426: this was an exchange with the friend who told the Defendant that the Claimant had been ‘moaning’ about her, and said she had taken away her business. She did not agree it was the same as the Claimant’s threats about breaking legs, etc, and pointed out what she had said had been private, and not public.

Core B/p533: this is after the merger listing emerged. It was the Defendant communicating with the Claimant saying that she could not log in and did not have the password. In the end the Defendant deleted it, about three days later. Eventually she told the Claimant not to contact her. She did not know what had happened so she did not give her any further explanation. After about 31 March 2016 all further contact between them was through solicitors.

Core B/p536: this is the review by Rebecca that comes from the merged BHCP/APS listing. It was left on the APS listing, and remained there even after I deleted the BHCP listing.

Core B/p564: this is the letter before claim from Russell Cooke. She was shown [8], and said it contained information only the Claimant could verify.

The Defendant said that when the Claimant contacted her in March 2016 her recollection was that the Claimant had said she taken over her website. She went to the APS website and her profile was still there and she thought that was what the Claimant was talking about.

Core B/p566: the Claimant’s solicitors asked for various disclosure at [21]. She said she provided a lengthy response and gave over what she had; but did not give telephone records at the time, but did so later.

Core B/p569: this was from Psychotherapy Experts. IG8 0TG is the Defendant’s Woodford address. It was probably five miles from the Premises.

Core B/p573: this is a photo which the police showed the Defendant in her July 2016 interview. It is a building on Cherry Tree Rise with ‘APS Psychotherapy’ superimposed. She said she believed this happened because the weekend of the exchange between the Claimant and her, she went into the listing to change the address to Cherry Tree Rise, and it did change (see Core B/p571). The Defendant’s theory is that when she made that change, APS got merged with the Streetview picture of a building at Cherry Tree Rise (not Cherry Tree Therapy Centre).

Core B/p985: the green is the Defendant. This was a conversation that she had with Delrene. The Defendant said she had looked at what the Claimant had been posting and had accidentally ‘liked’ one of the posts. She shared her knowledge of what was happening with friends. Page 986 was a conversation between her and a friend. The Defendant was aware of the Claimant’s GoFundMe page to raise funds to take her to court ‘to protect the public’. Page 987 is a message from a friend telling the Defendant to ‘to go to the people who police you’. She said she went to the police, but did not view it as a regulatory matter for membership bodies and did not approach them.

Code B/p995: the Defendant wanted the Claimant to take her to court so that she could ‘end it’. She needed it to be over. She could not reason with her. She ended up thinking, ‘I just hope she gets here’, and added ‘Here we are.’ The Defendant had been told what was going on on the Claimant’s Twitter feed, and she monitored it because the Claimant was trying to ruin her business.

Core A/p113, the Defendant’s witness statement, [29]: she registered the domain name for transitionaltherapy.co.uk in October 2010, but her main business then was BHCP. The Transitional Therapy website was live until about 2021/2. She used a company called Social Media Marketing Ltd to develop the website. She did not have a contact at Social Media Market – there was no ongoing relationship, she had a one off arrangement with them.

She was asked whether she had taken professional advice in March 2016 when the problem emerged. She said that because she had taken the listing down, she thought the problem had gone away, and she did not.

Core A/p152, [147]: in 2020 Google would email you if someone left a review. When she received the notification of the one star review she responded, but then just decided to delete it.

She did not complain to Google about the merger, but she did ask them what had happened

Core B/p308: that is the webpage for BHCP. It shows her home address and also the Premises’ address, where she was then renting rooms.

She was asked about creating a Google business listing and said she could not recall if in 2010 she was asked about other similar businesses nearby. She said that now Google does that, so far as she was aware. She denied deliberately claiming the APS name on Google listings.

In re-examination, she said that she had personally responded to the Claimant’s solicitors referring to harassment and defamation; she sent them the posts and asked them to tell the Claimant to stop doing it.

Core B/p571: this is a copy of the changed merged listing after she had edited it via the backend in March 2016 after the Claimant contacted her. She thought it had been live for about a day.

She was then shown Core B/p588, an email from Google dated 18 May 2017 to her, which read:

This was after Russell Cooke had sent their letter of claim in May 2017 wanting c.£630,000.

The Defendant said she had never been sent any evidence by the Claimant of the APS listing.

The Defendant said she became aware of the Claimant’s Facebook posts in 2017 following tip-offs, and then again in May 2020 when she was informed by a colleague and a member of the public after they saw her telephone number being advertised. She did not become aware of the Claimant’s posts as a result of monitoring her.

She checked up on the Claimant and went back to the police to try and get her to stop because it was distressing. They said it was low level harassment and would not take it any further.

The Defendant finished her evidence by saying that what had happened had been ‘horrific for seven years … for something which did not happen.’ She said that ‘every single thing has been twisted’. She said the Claimant was ‘vile’. Finally, addressing the Claimant, she said, ‘ … what you’ve done is vile. It is just disgusting.’

In his trial Skeleton Argument, Mr Siriwardena for the Claimant submitted as follows.

On passing off, and goodwill, it is apparent that the APS business had goodwill and a reputation attached to the services it provided through the Claimant and the self-employed therapists working under its brand. The mere fact that the Defendant completed a placement indicates that the Claimant has a reputation worth protecting. Further, it was not disputed that other qualified therapists either rented consulting rooms from the Claimant or accepted referrals from her. Her goodwill also existed in the form of her online presence which would cause members of the public and other professionals to seek out APS, which was recognisable through its logos and photos and in other ways.

As to misrepresentation, he said (as I understood it), that the Defendant had allowed the merged listing to exist over a number of years, and must have become aware of it given her changes in business name and premises over the relevant period. He said at [18]:

As to damage, [19] he argued:

In respect of the Defendant’s Part 20 claim, the defence of truth under s 2 of the DA 2013 was advanced.

In respect of harassment, s 1(3) of the PHA 1997 was relied on, in that it was said that the Claimant’s course of conduct was pursued for the purpose of preventing the Defendant from committing any potential offences connected with directories or misleading others.

In her own Closing Submissions, the Claimant referred to the defence of truth under s 2, and also the public interest defence in s 4 of the DA 2013, notwithstanding the latter was apparently expressly abandoned by amendment to her Defence to the Counterclaim (see above).

She made a number of other points, all of which I have read but do not need to set out. At least some of her points are really evidence, rather than submissions on the evidence given in court. Some of what she said has not been pleaded or was not referred to at the trial (eg, limitation in relation to defamation; and the Fraud Act 2006). Some of it just irrelevant. The Claimant did, however, maintain that the Defendant had admitted creating the listing (see eg at [45]: ‘… this is a direct admission to creating the information contained in the listing …’) and that the police believed she had committed fraud (see eg at [30]: ‘…their belief of a criminal act of fraud as shared with your honour in court.’

On behalf of the Defendant Mr de Wilde submitted as follows.

The Defendant is not liable to the Claimant for passing off, and the Claimant has failed to prove any of the three elements of the tort, in particular, an actionable misrepresentation by the Defendant, or one for which she is responsible in law. Her claim is totally without merit.

The Claimant is liable to the Defendant in defamation in respect of the publications in which she named the Defendant provided that she shows defamatory meaning and serious harm. No defence had been relied on.

She is also liable to the Defendant in harassment. If the Defendant is correct as to liability in defamation and harassment, there is no need for me to consider the claim under the GDPR (although it would inevitably follow that the Claimant’s processing of the Defendant’s personal data was unlawful).

The Defendant seeks an award of substantial damages (including aggravated damages), to take into account the Claimant’s ‘appalling’ conduct, both in respect of the publications, and also the proceedings themselves. The Defendant also seeks injunctive relief to prevent further publication of the Claimant’s allegations, and an order under s 12 of the DA 2013.

As will be clear, the Claimant’s case is not just that the Defendant committed the tort of passing off, but also that she committed criminal offences for which she should have been prosecuted. That being the case, in accordance with the principles I outlined earlier, it is for the Claimant to prove her case on the balance of probabilities by clear evidence.

I begin with the goodwill element of passing off.

Paragraph 4(a) of the Defendant’s Defence admitted that the Claimant owns any goodwill that she possesses through trading as APS. In his Closing Submissions, however, Mr de Wilde argued at [7] that the Claimant’s case on goodwill was ‘confused’.

I am prepared to assume that the Claimant owns (and owned at the relevant time) goodwill in the business of APS for the purposes of passing off, and thus that the Claimant has satisfied the first of the three elements of the tort.

However, it is upon the second element that the Claimant’s case founders. She has signally failed to prove on a balance of probabilities – let alone proved by clear evidence – that the Defendant made an actionable misrepresentation. The evidence unarguably points the other way.

I am satisfied that the merged listing, and the subsequent Psychotherapy Experts online directory listing, came about as the result of Google’s software having merged together the Defendant’s initial BHCP listing (for which she returned the postcard) and the Claimant’s APS listing, which was then picked up by the directory. I will explain why I have reached that conclusion in a moment. I unhesitatingly accept the Defendant’s evidence that she was entirely blameless, and unaware of any issue about listings until she was contacted by the Claimant towards the end of March 2016.

I acknowledge at once that there are some unanswered questions, and in the absence of evidence from Google, or from a forensic computer expert, some matters may never be ascertained definitively. However, the burden lies on the Claimant to prove her case and it was for her to show what happened. That said, the Defendant’s evidence as to what she did, coupled with the evidence she was able to assemble from March 2016 onwards, is more than sufficient to comprehensively disprove the Claimant’s case and lead to the conclusion I have reached.

I start in 2011. I accept the Defendant’s evidence that at some point during that year, whilst she was working from The Premises, she created a Google listing for BHCP (and without any mention of APS or its website) which she then verified via a postcard sent to her by Google to the Premises’ address. That contained a code, and the Defendant went online and entered the code to verify the listing. It is that step which linked BHCP with the Premises’ address in Google’s servers, and must have led in part to what happened.

It is clear to me, and I find, that any ‘admission’ which the Defendant made about having created a ‘listing’ was in relation to this initial true and accurate listing for BHCP. I find that at no stage did the Defendant ever admit to having created a false or misleading listing with BHCP’s trading style, her phone number, and also APS’s address and website. This is borne out by the contemporaneous police summary of her July 2016 interview, and also DC Annor’s closing report, both of which, whilst hearsay, I am satisfied are accurate. The Claimant’s belief to the contrary – and her repeated public assertions on Facebook, etc, to that effect - were and are wrong. As I will discuss later, this was just one of a number of things which the Claimant said the police had told her which were not true.

A moment’s thought suffices to show why the Defendant is unlikely to have done as the Claimant alleged in order to dishonestly poach her clients. As the Defendant said, to have done so would have run the risk that someone searching for her or BHCP online who brought up the merged listing would then have gone onto APS’s website rather than call the Defendant’s number and decided to use the Claimant or another APS therapist in preference to the Defendant. Because the Defendant’s phone number was linked to the ‘Call’ button, it would appear that the Claimant was only ever able to conceive that this would have diverted clients away from her. But quite possible, as I have said, it is that the APS web address appearing on the merged listing might have brought clients to her and away from the Defendant.

The next reason I am satisfied that the Defendant did not create the merged listing is because of the review which Rebecca Elliott left for the APS therapist Louisa, to which the Claimant responded. That review and response could only have come from the APS Google business listing. There was no hypothesis put forward by the Claimant – nor can I think of one - as to how information relating to an APS therapist came to feature on the merged listing, other than by having come from the APS listing. It would not have benefitted the Defendant to have added this review to BHCP’s listing if she was trying to promote BHCP over APS, or pass her business off as that of APS, given Louisa was nothing to do with BHCP.

The next reason I find in favour of the Defendant and reject the Claimant’s case is because merged Google business listings is a known problem. Earlier, I set out one extract from the evidence gathered by the Defendant. Another example is this, from 2012, contained in Appendix M to the Defendant’s response to the Russell Cooke letter of claim, dated 7 July 2017:

As against this, the Claimant was able to offer little in the way of evidence to support her contention that the Defendant had created the merged listing, or the Psychotherapy Experts listing, beyond the fact of their existence.

I therefore find for the Defendant and reject the Claimant’s passing off claim. There is no evidence that the Defendant was responsible for the merged listing, and the evidence, and the inherent probabilities, all point to it having been the result of a software error.

This is sufficient to dispose of the Claimant’s claim, however I should say something about the Claimant’s case on damage.

The third element the Claimant needs to prove is actual or really likely damage to the property in her goodwill. However, there was no evidence that the Claimant had suffered any damage.

At the root of the Claimant’s case was her belief that as her business began to decline in 2011 or so, the Defendant’s practice was inexplicably growing rapidly, and that this meant the Defendant was stealing her clients through the merged listing.

Based on the hearsay evidence from Louise (which I accept), who told the Defendant around October 2012 that the Claimant thought the Defendant had been stealing business, I conclude that this was a belief which the Claimant formed years before she discovered the merged listing.

But her belief is not borne out by the facts. The Defendant meticulously set out her earnings from therapy on her tax returns and these were, if I may so, comparatively modest in the early years. The notion that there was a sudden rush of clients from the Claimant/APS to the Defendant from 2010 or 2011 onwards finds no basis in reality.

Second, I am unpersuaded that there is any evidence of actual damage in the shape of confusion between APS and the Defendant’s business, resulting in a loss of business. The only confusion which appears to have occurred on the Claimant’s case was in the mind of one person who had been a pre-existing client of the Claimant, and who had in fact been referred to her by the Defendant, ie, not someone who had found out about the Claimant’s business online or through Google (as the Claimant accepted in cross-examination). The phone records of calls to the Defendant’s own business, maintained by answer.co.uk (and disclosed by the Defendant), show that not a single person between 2014 and 2016 ever called the Defendant’s business in the belief that they were calling the Claimant/APS.

The Claimant also faces the difficulty that much of her business came from word of mouth referrals and not – or not just – the internet. I reject as incredible her evidence that she had been driven to rely on word of mouth referrals because of the Defendant’s alleged fraud.

My scepticism is reinforced by the Claimant’s own claims about her success over many years. The Defendant cited some of these in her reply to Russell Cooke of 7 July 2017 (Core B/pp708-9):

Even allowing for an element of ‘puffery’ or self-promotion, these posts do not sit easily with the Claimant’s case. If what she now says is true, these claims were untrue or at least highly misleading.

I am also troubled by the financial loss pleaded in the PoC (which, I should make clear, were not settled by Mr Siriwardena). The figures were wrong, as the Claimant accepted. The errors were not hard to spot.

Firstly, the claimed occupancy rate for rooms at 14 hours per day every day over a year was exaggerated, as I explained earlier (no allowance for Christmas Day, etc).

Second, that alleged occupancy rate assumed all the Claimant’s clients came via Google, which they did not.

Third, the hourly rate of £21.67 was wrong. It was worked out as rent charged per five hours of treatment in one room at £108.33, giving a supposed hourly rate of £21.67 (ie, £108.33/5). But as I explained earlier, £108.33 was the monthly rental, for five treatment hours per week, which equates to a room rate of £5 per hour (and that was the rate advertised by APS). Hence, the claimed loss was wrong by a factor of more than four, even accepting the claimed 100% occupancy rate.

The PoC were verified by a Statement of Truth, but they should not have been. Ultimately, the Claimant has to take responsibility for advancing a false damages claim.

I am reinforced in this conclusion by the reaction of some on Facebook at the time. In 2017 the Claimant claimed on the Counsellor Connect page that the Defendant had cost her £1.6 million in lost income (a figure she said the police had calculated). More than one user was plainly sceptical about this. For example, therapist Lee Adams expressed incredulity and said, ‘I apologise if my reply seems harsh … perhaps you need to look at what you have written and check if correct’ (Core B/p639). Another therapist, Simon Brodie, wrote: ‘You paid £1.6 million in room rental over 5 years? That figure seems astounding mainly because of the mental projections I am making about your income’ (Core B/p640). Another user, Tony Whitaker, was able to reach a figure of about £1.6 million, but nonetheless wrote (Core B/p659):

Later he wrote (Core B/p660):

The Claimant’s case in passing off therefore fails. The Defendant submitted that I should find that the claim was totally without merit. This means, per Males LJ in Sartipy v Tigris Industries Inc [2019] 1 WLR 5892, [27]:

I have carefully considered this submission and have come to the conclusion that the passing off claim was indeed totally without merit. It never had any prospect of succeeding. There was no evidence that the Defendant had committed any unlawful act. (The undated document at SC02/p101 saying the police believed there had been a fraud does not assist the Claimant. It must have been written when the investigation was ongoing in 2016, and so was superseded by the police’s final conclusion in September 2016 that no evidence had been ‘obtained to support a charge of fraud in the criminal courts’, as well as their conclusion that any loss was ‘hypothetical’.) The Claimant was given the relevant evidence showing there is a general problem of merged listings Google long before she commenced this claim. There was no evidence of confusion or damage. The figures put forward by the Claimant by way of loss were plainly wrong, which again was pointed out to her at the time. It does not appear the Claimant heeded any of these warnings.

It therefore seems to me likely that the Claimant became fixated at an early stage with the notion that the Defendant had taken her business, which then hardened into a belief that the Defendant had behaved dishonestly in so doing, and no amount of evidence to the contrary was capable of shifting that misapprehension.

Defamation

Mr de Wilde did not settle the Defendant’s Defence and Counterclaim. There was a single defamatory meaning pleaded in respect of the four publications complained of, at [24]:

On behalf of the Defendant, Mr de Wilde accepts that separate meanings should have been pleaded in respect of these publications (Closing Submissions, [10]). He put forward the following suggested meanings, which he said departed from the Defendant’s pleaded case in form, but not in substance, the imputations in each case being within the boundaries of the meaning originally pleaded by the Defendant:

There was no objection on behalf of the Claimant to this formal re-shaping of the Defendant’s case. Whilst meaning is a matter for me, I am satisfied that Mr de Wilde is correct that his suggested meanings fall within the four corners of the originally pleaded imputation, and that there is no unfairness to the Claimant.

Applying the Koutsogiannis principles, I am satisfied that each of the publications bears the meaning complained of. I am also satisfied that each meaning is defamatory at common law. These conclusions are self-evident.

As to serious harm, I am satisfied that each of the publications in question caused or was likely to cause serious harm to the Defendant’s reputation. That is for the following reasons.

First, I understood the Claimant to accept that in each case, publication was made to significant numbers of people. Also, it is inevitable that the Claimant’s allegations would have come to the attention of a broader audience among therapists, given it was an unusual public dispute between two of their number. I consider this to be a classic ‘hidden springs’ case. In Slipper v British Broadcasting Corporation [1991] 1 QB 283, 300 Bingham LJ said:

In relation to 23B, this was a Twitter conversation (ie, a Reply) to a fellow therapist on Twitter (Colour Purple Therapy), who it would appear had liked or forwarded the GoFundMe page. I regard it as overwhelmingly likely that this was then published to many Twitter followers and more broadly within the psychotherapist community.

In relation to 23C(i) and 23C(ii), these were both published on the APA Ayanay Facebook page. The Claimant accepted in her evidence that they would have been seen by many members of the group, and it is clear from the comments left in the thread number of members read them and believed the accusations within them.

In relation to 23C(ii), the Defendant said this at [142] of her statement, the factual aspects of which I accept:

In relation to 23E, the review posted in the name of APA, the Defendant’s unchallenged evidence in her witness statment was that it was likely to have been seen by around 430 people during the period of its publication between May and June 2020:

There is clear evidence of many publishees’ reaction to the Claimant’s post, eg the response the Defendant got from APA when she complained (Core A/pp153-4):

Although the Defendant accepts the Claimant might have written this herself, or had it written for her, there are numerous examples in the evidence of similar sentiments from other therapists in support of the Claimant, see eg, Lisa Wright’s message to the Claimant (Core B/p940):

In short, the Claimant put the Defendant to proof on serious harm, and the Defendant has proved it. Given the nature of the allegations; the extent of their publication; the identities and predominant occupation of the publishees; the evidence of their reaction; percolation; and the inherent probabilities, there is an ample basis for me to conclude that the test in s 1 of the DA 2013 is satisfied in respect of each publication complained of.

To the extent that the Claimant relies on the s 2 defence of truth, it follows from my earlier conclusions that the defence fails. The Defendant did not commit fraud or any criminal offence. She did not admit doing so to the police or to the Claimant. She did not commit unethical conduct. She is not a danger to clients. She did not undermine the therapists’ profession. The Claimant’s accusations were groundless.

As for the public interest defence in s 4, which the Claimant referred to in her Closing Submissions, this was removed by amendment from the Claimant’s Defence to the Counterclaim; it was not referred to in Mr Siriwardena’s trial Skeleton Argument; Mr de Wilde therefore did not address it, and it would accordingly be unfair to the Defendant to allow the Claimant to try and resurrect it now. But in case I am wrong, I have considered it on its merits, and it fails in any event.

I recently reviewed the relevant principles on s 4 in Aaronson, [318]-[324]. There are three questions to be answered (Banks v Cadwalladr [2022] EMLR 21, [100]-[135]), and the burden of proving them in this case lies on the Claimant: (a) was the statement complained of on a matter of public interest, or did it form part of such a statement?; (b) if so, did the Claimant believe that publishing the statement complained of was in the public interest?; (c) if so, was that belief reasonable?

The first and third questions require an objective assessment. The second question concerns the Claimant’s actual state of mind at the time of publication. She must have addressed her mind to the issue. This question is not satisfied by showing that a notional reasonable person could have believed that the publication was in the public interest, but that the Claimant did believe that it was. In terms of evidence, if a defendant leaves this issue unaddressed in their witness evidence, the defence is likely to fail at this initial hurdle: Turley, [138(vii)].

As to the first question, I am not satisfied that any of the four publications were on or formed part of a publication on a matter of public interest. They were part of an ongoing and public targeted vendetta by the Claimant against the Defendant. Any suggestion that client safety or protection of the therapist’s profession elevated any of the publications into the realm of public interest is far-fetched and not objectively justified. As to the second question, there is nothing in the Claimant’s witness statement to the effect that she considered the public interest before she posted. Thirdly, publishing as she did was self-evidently not reasonable. The matter had been investigated by the police four years earlier and there had been insufficient evidence to bring a prosecution. Some of the publications were bolstered by statements which the Claimant must have known were untrue (I will address this later in more detail). It was therefore unreasonable for the Claimant to continue to make the claims that she did.

The Defendant’s pleaded claim in harassment is as follows:

The Appendix contains numerous other publications by the Claimant from 2016 onwards.

In considering the Defendant’s harassment claim, I bear firmly in mind that I am principally concerned with whether what the Claimant published from 2016 onwards tipped over the line from the merely annoying, irritating or unpleasant (which is not harassment and not unlawful), into the unacceptable and oppressive, which was calculated to, and did, cause the Defendant alarm, fear or distress; in other words, whether it constituted ‘a persistent and deliberate course of targeted oppression’: Hayes v Willoughby,   [1], per Lord Sumption.

In Sayn-Wittgenstein-Sayn, [68]-[69], Collins-Rice J said, after setting out ss 1 and 7 of the PFA 1997:

In Scottow, the Divisional Court approved Nicklin J's summary in Hayden and continued:

Given this is a case of harassment by publication (albeit not of journalistic material, to which particular considerations apply: see Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233, [34]-[35], [50]), I have borne in mind in accordance with the authorities the Claimant’s right to freedom of expression under Article 10 of the European Convention on Human Rights.

I have reached the conclusion that the Defendant has made out her case against the Claimant in harassment on the balance of probabilities by clear evidence. That is for the following reasons.

First, the length of time spanned by the Claimant’s course or courses of conduct. As Mr de Wilde pointed out in his Closing Submissions, there were two distinct phases. In total, the publications spanned over four years, from 2016 onwards. Whether the two phases amounted to a single course of conduct, which I consider they probably did because they were all part of a public campaign by the Claimant against the Defendant centred around a common theme and carried out by the same means, or two separate courses of conduct, there is no doubt that the Claimant’s course or courses of conduct were protracted. In my judgment, the Claimant’s posts were persistent, deliberate, oppressive and unacceptable.

Next, there is the question of identification and targeting. During the first phase of her campaign, in 2016-7, the Claimant did not directly identify the Defendant. However, she posted enough (eg, that the Defendant had trained with the Claimant and then trained students at UEL) to allow for the jigsaw identification of the Defendant. The Defendant’s friend Zoe Clements identified her. The fact that the Claimant posted to the therapist community meant that it was inevitable that her posts would come to the Defendant’s attention. Also, obviously, once she discovered the Claimant’s posts, the Defendant knew that she was the person being referred to, and she was predictably upset and distressed. She said at [115] of her witness statement:

During the second phase of her campaign in 2020, the Claimant did identify the Defendant and her business by name. That was gratuitous. Even more gratuitous was the Claimant’s inclusion of the Defendant’s phone number in the GoFundMe page. The Claimant’s behaviour risked subjecting the Defendant to further harassment from publishees, many of whom were firmly on the Claimant’s side and hostile to the Defendant, as I will discuss in a moment.

Thus, in this case, in contrast to Hayden, where it might have been that the claimant would have been ‘entirely unaware’ of the posts in question had she not sought them out (see at [70]), the Defendant could not have avoided the posts coming to her attention. The Claimant targeted the Defendant in vitriolic terms, and published her personal data as part of her campaign.

Next, I find that the harassing effect of what the Claimant did was magnified by the untruths which she used to bolster her case. These included: that the Defendant had admitted fraud to the police; that the Defendant had also admitted it to her by text; that the police had not prosecuted the Defendant only because of cost; that the police had valued the Claimant’s claim at £1.6 million; that they had advised the Claimant about defamation and harassment; and that they told her that, ‘unless a bomb [went] off in London’, they were going to raid the Defendant’s house at 6am with 20 officers and arrest her and ‘seize her electronics and accounts’.

I consider that the Claimant’s untruths must have affected the reaction of those who read her posts by making the case against the Defendant seem stronger than it was. For example, I note that one commented that the ‘evidence’ was ‘damning’ (Core B/p617). By ‘evidence’ they meant the Claimant’s assertions. The overwhelming number of respondents were hostile to the Defendant, with many calling for her to be removed from the profession and/or for her prosecution. One respondent said she would have ‘smacked her one’, ie, assaulted her (Core B/p615). Another called the Defendant a ‘bitch’. The Claimant’s falsities therefore acted as an ‘echo chamber’ and served to magnify the harassment and oppression experienced by the Defendant.

The DPS letter to the Defendant which I quoted earlier (and which, whilst hearsay, I accept) comprehensively disproved each of the Claimant’s claims. To repeat just part of it:

Whilst there might have been room for the Claimant to have misunderstood one or two matters in her dealings with the police (eg in relation to MLATs), I have little hesitation in concluding that she must have known that much of what she was claiming was untrue. For example, as well as the Claimant’s false assertion that the Defendant admitted the ‘fraud’ to the police, there is nothing to support her claim that the police put a value on the ‘fraud’ of £1.6 million. In fact, it was the opposite; the police said the value of the claim was ‘hypothetical’ and that there was ‘no quantifiable loss’ (Core B/p677). I also reject as incredible her claim that the police would have advised her about defamation, and that they discussed their operational tactics with her.

Next, there are the threats of violence and other intemperate language which the Claimant used. There were, for example, references in the Claimant’s posts to: her slitting the Defendant’s throat; ‘Karma sure is a bitch when it comes back to bite you in the ass, by the time I’m done there won’t even be an ass to bite!’; the Claimant breaking the Defendant’s legs; her employing a ‘hit man’ (Core B/pp621, p622, p650, p677); and punching the Defendant in the face (13 May 2017). There were also references to ‘annihilation’ (22 February 2017); and to the Defendant being a ‘monkey’, a ‘devil’ and a ‘cow’ (12 April 2017, 11 May 2017 and 12 May 2017).

I find the Claimant’s threats of violence especially concerning. In her statement she tried to explain them as being ‘Irish Cultural language’ ([51]) and that she was being humorous, and had included ‘lol’. In cross-examination she said they were just ‘banter’. However, even if she was telling the truth, the Defendant was not to know that at the time. Anyone would have been alarmed reading the Claimant’s threats (whether accompanied by ‘lol’ or not). The Defendant said in [108] of her witness statement, which I accept:

Also, I find it surprising that the Claimant, as a member of a profession where high standards of behaviour are expected (a point she repeatedly stressed) should have thought it appropriate to publicly abuse a fellow professional as a ‘monkey’ and a ‘cow’.

I turn to the question of the Claimant’s suggested defence under s 1(3) of the PHA 1997. It plainly has no application to the facts of this case. The Claimant’s conduct was not done for the purposes of the prevention or detection of crime (the police’s investigation closed in 2016 for lack of evidence), and any conduct by the Defendant was long past when the Claimant was continuing to harass her. Nor was the Claimant’s conduct reasonable, given her untrue statements, and its prolonged, targeted and intemperate nature.

The Defendant seeks general damages for defamation and harassment, including a sum by way of aggravated damages, of £70,000 or more (Closing Submissions, [19], [24(1)]). Mr de Wilde suggested that I award a global sum to reflect all of the heads of damage including aggravated damages; cf Lachaux v Independent Print Ltd [2021] EWHC 1797 (QB), [227]; Blackledge v Persons Unknown [2021] EWHC 1994 (KB), [34-[35]; Ware v French [2022] EWHC 3030 (KB), [142]. In Blackledge (a case of defamation and harassment) Saini J said at [34]-[35]:

I propose to take the same course in this case.

I make clear that whether the Claimant is in a position to pay any significant award of damages is not a matter for me. My task is to make a suitable award to the Defendant in line with the relevant legal principles.

General damages for defamation are compensatory in nature. Warby J summarised the key principles in Barron v Vines [2016] EWHC 1226 (QB), [20]-[21]:

Nicklin J also gave a comprehensive account of the principles of assessment of damages in libel in Turley, [171] - [176]. The principles identified by him are: (a) damages must compensate the claimant for the damage to his reputation; (b) damages must vindicate the claimant’s good name; (c) damages must take account of the distress, hurt and humiliation which the defamatory publication has caused to the claimant; (d) in assessing the appropriate damages for injury to reputation the most important factor is the gravity of the libel; (e) the extent of publication and the relationship of the publishees with the claimant is also relevant; (f) a successful claimant may properly look to an award of damages to vindicate his reputation. The significance of this is much greater in a case where the defendant asserts the truth of the libel and refuses any retraction or apology than in a case where the defendant acknowledges the falsity of what was published and publicly expresses regret that the libellous publication took place; (g) it is well established that compensatory damages may and should compensate for additional injury caused to the claimant’s feelings by the defendant's conduct of the action, as when he persists in an unfounded assertion that the publication was true, or refuses to apologise; (h) the impact of a libel on a person's reputation can be affected by their role in society; (i) the impact of a libel on a person's reputation can be affected by the extent to which the publisher of the defamatory imputation is authoritative and credible; (j) the impact of a libel on a person's reputation can be affected by percolation of the libel through ‘hidden springs’; (k) a reasoned judgment may affect the level of damages awarded, though the impact of this will vary according to the facts and nature of the case; and (l) in arriving at a figure it is proper to have regard to previous awards by a judge sitting without a jury.

The principles relating to damages for harassment were set out by Nicklin J in Suttle v Walker [2019] EWHC 396 (QB), [54]-[57]:

Regarding aggravated damages, the editors of Gatley on Libel and Slander (13^th Edn) say at [10-16] (footnotes omitted):

Mr de Wilde submitted as follow in support of the Defendant’s claim for damages in excess of £70 000 (Closing Submissions, [24]):

Mr de Wilde also said that there were features of the Claimant’s conduct both in relation to the publications, and to how she had conducted the proceedings, which justified an award of aggravated damages. He submitted as follows (Closing Submissions, [25]):

I turn to my conclusions. The quantification of damages in the present context is not a precise science, as I commented in Ware, [137]. That said, I accept the substance of Mr de Wilde’s submissions.

In my judgment the following matters, in particular, are relevant to the quantum of compensatory damages for defamation: (a) the seriousness of the Claimant’s defamatory allegations of guilt, having regard to the Defendant’s profession, and her false claims in support; (b) the targeting by the Claimant of the therapist and counsellor community and the extent of publication; (c) the Defendant’s palpable anger and distress.

In relation to harassment, there are the following additional matters: (a) the Claimant’s extensive four year campaign; (b) her threats of violence and personal abuse of the Defendant; (c) the evidence of the negative way her campaign caused other therapists to view the Defendant; (d) the inclusion of the Defendant’s personal data including her phone number and business name.

The following features of the Claimant’s conduct which serve properly to aggravate the level of damages are, in particular: (a) that the passing off claim was totally without merit (and her plea of justification was therefore always bound to fail); (b) her varying false and exaggerated claims for losses in correspondence and in the PoC; (c) her inclusion of personal evidence about the Defendant that was irrelevant, and was done (I find) to intimidate the Defendant; (d) the Claimant’s lack of real contrition about her behaviour; (e) her continued reliance in her evidence on false claims about the police; (f) her admission that she had conducted her campaign at least in part to provoke the Defendant into action.

I have not overlooked the Claimant’s written Closing Submissions in which she said at [38]-[39](sic):

I am not entirely sure what this means, but I do not regard it as an apology or retraction. The Claimant plainly still believes in the truth of her libels. At [145] she repeated her belief that the Defendant is a ‘repeatedly fraudulent individual’ who is a ‘danger to clients’. In the same document she also made numerous allegations against the Defendant (and not just in relation to Google listings).

Taking all matters together, the amount I award the Defendant in total by way of damages for defamation and harassment, including aggravated damages, is £75,000.

Finally, I turn to the other relief sought by the Defendant.

Firstly, the Defendant seeks an injunction. I consider this to be an appropriate case for an injunction to restrain the Claimant and to guard against the possibility of further harassing publications about the Defendant. The terms of such an order, if they cannot be agreed, will have to be the subject of further submissions.

Second, the Defendant seeks an order under s 12 of the DA 2013. This provides:

In Monir, [239]-[241], Nicklin J explained the purpose of s 12 as follows:

I consider this to be an obvious case for such an order. There has been no retraction or apology by the Claimant (quite the reverse), and I am satisfied an order would be proportionate and not a violation of the Claimant’s Article 10 rights. Publication of a s 12 summary on the platforms where the Claimant published her libels would assist in repairing the damage to the Defendant’s reputation and in providing her with vindication by serving to ensure that the truth of this case is read by at least some of the original publishees.

As I have found for the Defendant in defamation and harassment, I need not determine her GDPR claim.

The Claimant’s claim for passing off is dismissed. It was totally without merit.

The Defendant’s Part 20 claims for defamation and harassment succeed.

The Defendant is awarded £75,000 general damages for defamation and harassment, and this amount includes a component of aggravated damages.

There will be an injunction to restrain further publications by the Claimant, the terms of which will be determined by me if they cannot be agreed.

There will be an order under s 12 of the DA 2013 for the publication of a summary of this judgment, the contents of which will be determined by me if they cannot be agreed.