Case Nos. (1)HQ15D03284 (2)HQ15X04987
Royal Courts of Justice
The Strand
London, WC2A 2LL
Before:
HIS HONOUR JUDGE MOLONEY QC
(sitting as a Judge of the High Court)
B E T W E E N :
POWER PLACES TOURS Inc. THERESA WEISS TOBY WEISS | Claimants |
- and - | |
FREE SPIRIT ALEXANDRA DITTMANN | Defendants |
A N D B E T W E E N : | |
THERESA WEISS TOBY WEISS | Claimants |
- and - | |
FREE SPIRIT | Defendant |
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A P P E A R A N C ES
MR. DAVID HIRST (instructed by Harcus Sinclair) appeared on behalf of the Applicants.
THE DEFENDANTS were not present and were not represented.
J U D G M E N T
HIS HONOUR JUDGE MOLONEY QC:
This is my ruling on two closely related applications for interim relief. One is made in an existing action, Claim Number HQ15D03284, the claimants being (1) Power Places Tours Incorporated, an American company, (2) Theresa Weiss and (3) Dr. Toby Weiss, and the defendants being (1) Free Spirit (that is a human being whose name is Free Spirit) and (2) Alexandra Dittmann, who has not been directly involved in the present proceedings. The second action is a newly commenced action, Claim Number HQ15X04987. The claimants are Theresa and Toby Weiss and the defendant is Mr. Free Spirit. Ms. Dittmann is not a party. Now, in each of those two actions, which I shall briefly describe in a moment, applications for interim relief have been issued. They have been made on notice to the defendant, who has been served by email, as provided by the court in the case of the first action and as I have directed retrospectively in the case of the second action. The defendant has himself replied by email of 9th December 2015, which I have read and taken into account, but the defendant has not attended the hearing in person. His exact whereabouts are not known; it is possible that he may not be within the jurisdiction at the moment.
In briefest summary the background to this case is as follows:
Dr. and Mrs. Weiss are Americans who live in Colorado. They run a travel agency called Power Places Tours, which appears to specialise in tours to what I might loosely describe as “sacred places”. Though the company is based in the United States, it advertises worldwide over the internet and no doubt gets business from time to time from people from the United Kingdom and the European Union.
The first defendant, Mr. Free Spirit, is a New Age teacher with an interest in sacred places and matters of that kind. It would appear that he is a citizen of the United Kingdom, resident in the European Union, sometimes within the United Kingdom, sometimes in other countries in Europe. In 2011 Mr. Free Spirit and his then wife booked a holiday with Power Places Tours, departing in December 2012 and costing some $7,000. Regrettably, Mr. Spirit and his then wife appear to have broken up subsequently and a dispute arose as to whether he was going to go on the holiday with Ms. Dittmann, his new partner, and whether his wife was going to go as well, as she wished, or whether she would have to leave the tour. The net result of this family dispute was, it appears, that Mr. Spirit cancelled his reservation for himself and Ms. Dittmann but did so too late to get his money back pursuant to the company’s standard terms.
As is not unusual nowadays, having a dispute with the company he chose to pursue it by means of internet publications, posting a series of lengthy and critical attacks on the claimants and people associated with them in the business on various consumer review websites. These postings were put up from various places, probably in the United Kingdom and the European Union.
This went on for several years and ultimately the claimants commenced the first action, Action 03284, in England in July 2015. It was a claim in defamation and in harassment.
The first defendant acknowledged service and matters were proceeding when the parties negotiated and signed a compromise agreement in the familiar Tomlin order form with a very detailed and carefully worded settlement agreement as the annexe to the Tomlin order. As a result of that settlement agreement a statement in open court settling the defamation proceedings was read before Warby J in the Royal Courts of Justice in October 2015.
Sadly, that was not the end of the matter so far as the first defendant was concerned. He has written subsequently, indicating that he no longer considers himself to be bound by the settlement agreement. The evidence before me, to which it is fair to say I have not heard his reply beyond the email to which I have referred, indicates that he has not fully complied with either the negative restraints in the settlement agreement against future publications of a similar nature or the positive obligations which it contains to take down from the web existing publications which remain there.
The matter goes further. The evidence suggests that he has posted new postings of a similar nature and also that he has made frequent, unwelcome direct contacts with the personal claimants, Dr. and Mrs. Weiss, by means of emails to their personal address making various threats and demands.
The first defendant’s most recent email to the claimants’ solicitors, made after the service of these applications, raises no substantive defence or even moral justification of his conduct, in particular his apparent breaches of the settlement agreement and his direct contacts with the claimants of an unwelcome nature. Instead, it reiterates the demand that he had previously made for $1.5 million, or £1 million, as the price of his silence for the future.
In these circumstances it is understandable that the claimants have taken two related steps. Firstly, they have applied to the court in the first action under the liberty to apply contained in the Tomlin order for the court to carry the terms of that Tomlin order into effect, in this case by granting an injunction in prohibitory and mandatory terms. Secondly, the personal claimants have issued a further action, claiming relief against harassment by means of direct communications with themselves. They seek interim injunctive relief and an order, which I have granted, that those proceedings can be served by email, as already had been directed in the first action.
In relation to these two applications for interim relief I remind myself of the principles applicable to the grant of such relief.
The general American Cyanamid principle. The court does not need to be satisfied the claimants will succeed at the trial, just that they have a sufficiently strong case and that the order which is sought is that which best preserves the balance of justice between the parties pending trial, if any.
Insofar as the relief sought involves restrictions on the defendant’s right of free expression under Article 10 of the European Convention of Human Rights, as in this case in large part it does, the court must also apply a higher standard, that specified by s.12 of the Human Rights Act 1998, which in summary requires the court to be satisfied that the claimant is likely to succeed in getting final relief at the trial to prevent the publication sought to be restrained.
Thirdly, I should mention the need for the court to exercise special caution in granting mandatory injunctive orders. The court should be slow to grant such orders at any time, but especially slow to do so on an interim basis. The court needs to take particular care to ensure that any mandatory requirement is clear, practicable and enforceable.
In relation to the application in the first action, to carry into effect the terms of the carefully drafted settlement agreement, I am well satisfied that the order I am about to make is a proper exercise of my judicial discretion, taking into account those principles.
This is a solemn agreement which the first defendant freely signed only two months ago. He has put forward no reason or excuse for what, on the evidence before me, have every appearance of clear breaches which are highly likely to be established as such at trial. There is strong reason in those circumstances to carry the settlement agreement into effect in order to protect the claimants’ vested contractual rights under that agreement. I can see no reason the other way in terms of the balance of justice why the first defendant should suffer any prejudice from the proposed relief, which merely seeks to hold him to the bargain that he has already freely entered into.
In those circumstances it will be clear that both the basic Cyanamid test and, more importantly, the test under s.12 of the Human Rights Act are met. I consider it highly likely that at trial the claim in respect of the settlement agreement will succeed and injunctive relief of the sort I am about to grant will be granted at trial.
In the course of discussions with counsel, who has redrafted the order accordingly, I have taken care to ensure that insofar as the order contains mandatory provisions (as it must in order to ensure that the defamatory publications are cleared from the internet, because many of the websites require the participation of the author if these things are to be taken down) those mandatory requirements are as clear and simple as possible and can properly form part of an interim injunctive order.
In respect of the new claim, for relief against personal harassment by direct communication, I have given the relief sought more anxious consideration. I am satisfied that if the claimants were English residents the elements of our statutory law of harassment would be made out. Firstly, the emails, which I do not think Mr. Spirit is likely to dispute sending, show that there has been conduct of a protracted nature on many separate occasions so that the statutory requirement of a “course of conduct” is clearly made out. Secondly, they are calculated to cause alarm and distress to people like the Weisses who, as Mrs. Weiss tells me in her witness statement, are coming up towards retirement and are very concerned for their peace of mind and, indeed, for the future of their business. Thirdly, this conduct does not appear to be reasonable or justifiable or done for one of the protected purposes referred to in the Protection from Harassment Act. So the basic elements of a good, strong harassment claim are present.
Given, however, that the Weisses are American residents with, so far as I am aware, no special connection with this country, I do see that there is a potential issue as to whether English law is applicable to the facts of this case. The USA is the place where the harm has been suffered; it is the place where the Weisses live, receive these communications and suffer their detriment. So there is a possibility that the court might be persuaded to apply the law of Colorado. Alternatively, the question might arise: should the choice of law be based on the jurisdiction from which the defendant committed the alleged tort by sending his email messages? On the facts, it is not yet entirely clear whether that is the UK or whether it is some other country, probably within the European Union. In those circumstances, it does appear to me at present that if this matter went to trial, as the Human Rights Act calls upon me to envisage, it might be that English law would not be held to be applicable and therefore that the relief sought might possibly be refused. Subject only to that reservation, I consider it likely that notwithstanding his Article 10 rights the defendant would be restrained in such a trial on harassment grounds from making direct communication with the claimants. (The order sought preserves his right to communicate with them via their solicitor. That, I consider probable, would satisfy any legitimate interests he might have under Article 10.)
So, turning back to the question of choice of law, on present evidence it seems to me as follows: given that the defendant appears to be a citizen of this country and a person who has submitted to the jurisdiction of this country in the first action, my assessment on the evidence before me is that it is more likely than not that the law that the court will apply at trial will be the United Kingdom law of harassment and that it is likely that the first defendant will be restrained under it. The order that is sought is plainly justified on the basis of the balance of convenience and justice, and appears to me in those circumstances to satisfy the requirements of s.12. In those circumstances I will grant the interim order sought in the second action as well as the first.
As to costs, normally the court might be slow to grant a costs order on an application for interim relief. But there is a special feature here, which is the nature of the first defendant’s response to the application once he had notice of it. He made it quite clear that his conduct is motivated by a desire to extract substantial sums of money from the claimants in return for his silence. It is, in short, on his own very plain if implicit admission, a case of unwarranted demands backed by threats. That was his response to the present court application. In those circumstances, I consider that the bringing of the applications was very well justified. Indeed, the claimants had little choice to do anything else if they were not to submit to this campaign without resistance.
It is therefore proper for me to order that the costs of these applications should be made against him in any event. But I shall grant him liberty to apply to discharge or vary that order and, indeed, all of the orders that I have made in his absence, should he choose to do so. I further propose to order in each action the sum of £5,000 by way of an interim payment on account of those costs to be paid by 6th January 2016.
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