Keith-Smith v Williams

JUDGE MACDUFF: This is a claim for damages in a defamation action. It is also a claim for injunctive relief. The claimant is Michael Keith-Smith, the defendant is Tracey Williams. I am concerned only with the quantum of damages and the nature of the injunction to be granted if any, judgment having already been given in default of defence.

I should say something about the background history. The claimant, Mr Keith-Smith, has for many years been actively involved in politics, initially as a member of the Conservative party, but more recently as a member of the UK Independence party for which party he stood as a candidate at the last general election for the Portsmouth North constituency.

In December 2003, there or thereabouts, he signed up to an internet discussion group under the auspices of yahoo.com, a discussion group entitled "In the Hole". That discussion group no longer exists. His identity within that group was Mike UK PO53EX. That identity disclosed his post code and it was possible by clicking on that identity within the internet discussion group to ascertain who he was. There was a link to his profile which contained personal details about him, including his address, telephone number and so on. There was also a link on to his business website. Thus it was that if he contributed to the discussion within that group by posting a notice or a comment he was identifiable to people visiting that site.

The defendant, Tracey Williams, was also a member of the same discussion group. She operated within the group under a pseudonym or a number of different pseudonyms, most if not all of which included the word Gosforth or Gos (G-O-S). Her identity could not be discerned in the same way as the identity of the claimant, but it was possible to join that group using either an identity which was discernible or a pseudonym which did not enable a visitor to the site to identify the contributor by name or other means.

Although there were perhaps only a hundred or so members of the discussion group, anybody could access the site over the internet and read what was upon it. To contribute to the discussion one had to be a paid up member. Thus, anything that was said on the site could be read not only by members, but by the vast numbers of people who found the site on the internet. It seems that the purpose of the site, at least to a large extent, was to engage in political discussion and some interchanges and exchanges of views were friendly, but after a time it was clear that the defendant, operating under the pseudonym Gosforth or similar pseudonyms, was beginning to get abusive towards the claimant, possibly because she disagreed with his political views or the perception of them which she had.

She began in the year 2004 to refer to him as lard arse and give him that nickname, or lard brain. Then, over a period of time, she became more abusive calling him a nonce, a sexual offender, accusing him of sexual harassment of a female co-worker, calling him a racist bigot, a Nazi. She also alleged within her statements on the site that he had been charged with soliciting boys, charged with 'cottaging' offences and that he was a sexual deviant of the most perverted kind. Those are the main defamatory statements which are alleged by the claimant in his pleaded case, but those defamatory statements were repeated in similar words on other occasions.

One of the difficulties which Mr Keith-Smith faced was in identifying who it was who was making these statements about him. In June 2004 he made an application to the High Court requiring the site operator to disclose the identity of the person making these statements, Gosforth. Until an order of the court was obtained the site operator was not prepared to give that disclosure, but after the court order the identity of the defendant became known to the claimant's then solicitors.

It should be said at this stage that there was another contributor and member of that site who contributed under the name 'Sceptred Isle' and it became clear to the claimant, as it has become clear to me as I read the papers, that Sceptred Isle and the defendant, Tracey Williams, in the name of Gosforth were jointly making similar defamatory remarks about the claimant. Sceptred Isle also included some particularly nasty, unfounded allegations against the claimant's wife. I have been told, and rightly told, that Sceptred Isle was identified and has been sued also. The claim against that defendant was made jointly by Mr Keith-Smith and his wife and settled out of court for a payment of a modest amount of damages and an apology.

In some respects it may be irrelevant to this judgment for me to say that the evidence points to the fact that the claimant has a reputation of some integrity, which he seeks to protect. I say it is irrelevant to some extent because the defendant has at no stage sought to justify her statements and they are clearly defamatory. However, his reputation does have relevance to the quantum of damages. I have the claimant's witness statement which was taken to be his evidence in the case and he has for many years been a chartered surveyor, has given expert evidence in the courts, served on committees, both of charities and schools, and enjoyed, as I am prepared to find, a high social reputation.

I have mentioned he went to solicitors Messrs Osmond & Osmond. They were able to consider the patently defamatory remarks which had been posted on the internet for all to see and a letter before action was sent and subsequently in March 2005 proceedings were served upon the defendant. These only served to provoke the defendant into more frenzied abuse on a different discussion group site. In December 2004 she was particularly abusive and her statements demonstrated that she was, if I can use the phrase, cocking a snook at the court and the solicitors and that she had no intention of stopping her defamatory behaviour.

On 2nd March 2005, she posted the following phrase:

The service of proceedings on 8th March only provoked even more abuse and repetition of the defamatory statements. The claimant was referred to as a slimy fat bastard, a fat racist slug and a maggot, amongst other choice expressions. The defendant also opened her own website under the title "Level 9 Community" and this was a site which was also used to abuse and defame Mr Keith-Smith. This was after the issue of proceedings and demonstrates the contempt in which the defendant held the court and the proceedings against her.

In one of her statements she referred to the racist homophobic Andrew Keith-Smith asking, "Have you ever been set up by a belly crawling racist maggot? This particular nasty maggot", she said, "is suing me in the High Court" and demonstrated that she was laughing about this. Her defamatory statements continued well into 2005, though I think in recent times, happily, the defendant has gone quiet.

The website, Level 9 Community, was closed down by her, but with a statement that it would be re-opening in April 2006. I cannot help noticing that that will be after this case has been concluded and one is concerned at the possibility that the defendant may be looking forward to the prospect of recommencing her campaign against Mr Keith-Smith, a campaign which she is not able or prepared to justify.

I am told, and have no reason to doubt, that the solicitors' investigations would show that this defendant possibly, or indeed probably, does not have the means to pay an award of damages or costs and that it may be difficult to enforce the damages part of this award and any costs awarded against her. Insofar as she on the website and within the discussion group has suggested, nay alleged, that the claimant is pursuing this claim for monetary purposes that is patently untrue, if only for the reason that his research has shown that she likely does not have the means to pay.

When the claim was served she acknowledged service and filed a document purporting to be a defence in which she sought to contest the jurisdiction of the court, though not on any grounds which she was able to disclose and not admitting or recognising anything. That document was struck out. She was ordered to file a proper defence complying with the rules, which she failed to do. Judgment was subsequently signed in default and the defendant has from that time on taken no part in these proceedings at all, although she has been served with all the relevant documentation as time has gone on. She is not here in court today.

The published statement upon which reliance is placed in the pleadings is clearly seriously defamatory. In once sense those statements have been made to a restricted audience. In fact, it is very likely that few people have read those statements. However, they were available to the whole world, at least to that part of the world which has a computer or access to a computer and knows how to go on to the internet and to find the various sites upon it. But fortunately, as a matter of fact, few people have likely picked up on these defamatory statements and I suspect that many of those who have read them dismissed them as being the rantings of a person who was not to be believed.

How do I quantify damages in those circumstances? There is in this case no claim for any pecuniary loss and the only damages, general damages, are for injury to reputation. This, of course, is the principal head of damages in any defamation claim. These damages as the court have frequently said are at large and are a jury matter, but it is right that in making an award the court should also have regard to the injury to the feelings of the person who has been defamed.

In 1965 Pearson LJ said that the claimant's damages for injury to reputation may also:

At one stage the claimant was worried and concerned that if anybody discovered these statements about him and found where he lived, as they could have done, he might be the target for injury, abuse or even worse, given that the allegations made against him, unfounded as they were, included that he had solicited boys and was a nonce or sex offender. Happily, that did not happen and, I repeat, the likelihood, as the claimant himself accepts, is that few people were taken in by these remarks.

Before I look at the compensatory damages, however, I should say this. There is within the Particulars of Claim a claim for aggravated damages. Those are appropriate in certain cases. As long ago as 1890 the then Master of the Rolls, Lord Esher, in a statement, which is as valid today as it was then, said this:

In assessing whether aggravated damages are appropriate, the question of malice may arise and be a relevant feature. In this case within the general nature of the concept of malice in defamation cases, it is clear that the court is entitled to infer malice from the way the defendant has behaved. It may be inferred by other derogatory statements and a persistence in the accusation in the absence of any attempt to justify, and in the knowledge that those assertions are unreasonably made and without any ability to justify.

The defendant has been invited to apologise and has not only neglected to do so, but has made it clear that her attitude towards an apology is one of contempt. It is not clear in my mind whether, in a defamation case, it is necessary or appropriate to award one sum of damages by way of general damages to include compensatory damages and the aggravation, or whether it is more appropriate to specify how much of the award is compensatory and how much is aggravated.

In my judgment, the appropriate award here is, in total, the sum of £10,000, and if it were appropriate for me to do so I would say that £5,000 should be by way of compensatory damages and £5,000 by way of aggravated damages. I would only add this. If those damages appear to be modest in amount that is not any fault of the defendant, if fault be the right word. It is through the good fortune, or her good fortune, that these remarks did not get a wider publication elsewhere and were, happily, only seen by a relatively small number of people, most of whom, in all probability, did not believe what they were reading.

Perhaps of more significance is the claim for an injunction, and, in my judgment, there is no reason why a prohibitory injunction should not be granted, restraining the defendant from republishing these libels or publishing similar libel in the future. The criteria for injunctive relief where tortious actions have been proved and demonstrated are clearly met and I will make an appropriate injunctive order with a penal notice attached, prohibiting the defendant from publishing, republishing these libels or similar libels in the future. These libels being statements stating or tending to suggest that the claimant is a sex offender, a sexual deviant, has been charged with sexual offences, whether soliciting or otherwise, has been guilty of sexual harassment and alleging that he is a Nazi or has Nazi sympathies or Nazi-type sympathies and/or has racist sympathies. Those are the libels which will be prohibited in the future.