Richardson v Google UK Ltd & Anor

SIR DAVID EADY: This is an application by the first defendant, Google UK Ltd, for an extended civil restraint order against the claimant in these proceedings, Camille Saskia Richardson. The court’s powers to make an extended civil restraint order (or ECRO) are now defined in CPR practice direction 3C. Paragraph 3.1 provides that such an order may be made by a judge of the Court of Appeal, a judge of the high court or a designated civil judge in the county court, where a party has persistently issued claims or made applications which are totally without merit. Paragraph 3.2 provides that, unless the court otherwise orders, where the court makes an ECRO, the party against whom the order is made will be restrained from issuing claims or making applications in (a) any court if the order has been made by a judge of the Court of Appeal, (b) the high court or the county court if the order has been made by a judge of the high court, or (c) the county court identified in the order if the order has been made by a designated civil judge or their appointed deputy concerning any matter involving, or relating to, or touching upon, or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order.

It is also provided that there may be an application for amendment or discharge of the order provided that permission has been obtained; there may be an application for permission to appeal the order; and, if permission is granted, the appeal itself may be prosecuted. The specified maximum period, for the moment at any rate, is “not exceeding two years”. In this case, the first defendant seeks an ECRO for that maximum period of two years.

As is well known, the formulation of the jurisdiction in the CPR is based upon, and derives originally from, the inherent jurisdiction of the court. There were a number of decisions and authoritative judgments on the inherent power before the jurisdiction came to be embodied in the CPR. My attention was drawn in particular to the case of Connah v Plymouth Hospitals NHS Trust [2006] EWCA Civ 1616 and, in particular, to the remarks of Dyson LJ (as he then was) at paragraphs [22] and [23]. The threshold for granting such an order is that the relevant person has persistently issued claims or made applications which are totally without merit. As was explained by Dyson LJ at paragraph [23], an ECRO does not merely restrain the applicant in the instant proceedings: it also restrains the issue of claims or making of applications in other proceedings which may loosely be said to be related to the instant proceedings. The vice at which the ECRO is directed is the issuing and making of applications in more than one set of proceedings. The inherent jurisdiction was also explained in the very important case of Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88.

Ms Evans QC, on this application, has drawn my attention particularly to a number of features identified in the Forsdick case by the Court of Appeal, at paragraphs [3] to [8], because, she says, they closely parallel the conduct of the claimant in this particular case. That is borne out by the evidence before me. She also highlights the proposition that it is an abuse of process to attempt to re-litigate issues which have been decided against a party, or to mount a collateral attack upon a final adverse decision of a court of competent jurisdiction. Reference was made in that context also to CPR 3.4.3.2 and 3.4.3.3.

The first defendant relies on the following matters which have emerged from the evidence. First, the claimant has brought claims and applications against this defendant which have been found by the court to be totally without merit. Those findings have been made by Master Kay QC, Warby J, Dingemans J and Sharp LJ. It has been emphasised by Ms Evans that the claimant’s conduct has been persistently vexatious. (That is still a convenient term to use even though it does not actually appear in the modern formulation of the rule.)

She has issued three sets of proceedings and numerous applications concerning or touching upon the same subject matter; namely, whether this defendant was liable in law for publishing the content complained of on the Blogger and Google Plus services. There is no need to go into that content. It is fully set out in the evidence and has been drawn to my attention.

The first proceedings, HQ15D00086, were dismissed by Master Kay QC on 26^th June last year, having been commenced in January of that year. The claimant’s appeal against the Master’s decision was dismissed by Warby J on 26^th October of last year. Yet again, there was a challenge by the claimant to those decisions which was rejected on 13^th January of this year by Dingemans J. On 22^nd March of this year, Sharp LJ dismissed the claimant’s attempt to challenge those decisions in the form of a costs appeal. She ruled that the claims were (to adopt her word) “fruitless”, and she found that the application for permission to appeal had been totally without merit. She also took the step of emphasising and recording that her own decision was final.

The second set of proceedings, which were issued on 17^th July last year in the Manchester District Registry, bore the reference number B90MA293. It is to be noted that they were launched after Master Kay QC had struck out the first claim against this defendant. The proceedings were then discontinued against the first defendant on 23^rd September of last year. The background, which I need not go into, is fully set out in the evidence from the solicitor, Mr Barker. That evidence includes reference to the material non-disclosure of Master Kay’s judgment in those Manchester proceedings.

The third set of proceedings was commenced on 23^rd February of this year, the reference number being HQ16X00661. They, too, were discontinued on 26^th May. An application would have been made to strike them out, had this not occurred, on the basis that they disclosed no cause of action. Reliance was apparently placed on sections 1 to 2 of the Fraud Act 2006. Such a claim would be totally without merit, and an abuse of the process, because the statute in question did not give rise to the possibility of civil remedies. It was seen by the first defendant, understandably in my judgment, as representing an abuse of process because it was attempting in effect to re-litigate issues upon which adverse decisions had already been made, and/or mounting a collateral attack on Sharp LJ’s “final” decision.

The persistence of the claimant is illustrated by the recent notification of her intention to re-open the appeal dismissed by Sharp LJ. There was an email to that effect to the Masters’ Support Unit on 17^th May. So far, apparently, the solicitors for the first defendant have not seen the application itself, although they had received an unsigned witness statement. Nevertheless, such an application, Ms Evans, submits, would also be totally without merit and an abuse of the process for the reasons already by now familiar.

Another feature in common with the conduct described in the Bhamjee case is that this claimant has threatened complaints to the relevant professional bodies against the defendant’s legal representatives (and indeed has threatened to make a complaint against Warby J as well). Ms Evans has characterised the persistent behaviour of the claimant as obsessional. The evidence seems to me to plainly bear that out. It causes inconvenience, and indeed a degree of harassment, against those to whom her threats and remarks are directed; that is to say, personnel employed by Google Inc, the legal representatives of the first defendant and some court staff. Mr Barker has explained the nature of the communications which have been directed towards his firm and the sheer volume (received at all times of day and night). So far as Mr Barker himself is concerned, there have been, I am told, more than 100 text messages to his mobile phone. My attention was drawn to disturbing matters raised by the claimant, not only to him but also to Ms Evans, and references to the Claimant's own personal history. Whether they are accurate or not I do not know, but they have no relevance to the claims against the first defendant.

This correspondence inevitably takes up time and money in dealing with it: it cannot simply be ignored. One of the factors which an ECRO is directed towards is preventing those who are involved in the litigation, in whatever capacity, from being harassed and troubled and vexed by such conduct.

Criticisms have been made of the lawyers representing the first defendant in respect of what are alleged to have been inappropriate and insensitive statements made to her, or in her presence, during an adjournment at a hearing in the Manchester District Registry on 10^th March.  There have been complaints to the professional bodies and I am told that the complaint to the Bar Standards Board has been already summarily dismissed. It is not only a question of distress or embarrassment caused to the individuals concerned, or a question of the cost which is incurred in dealing with such matters. The point has also been made, particularly in relation to court staff, that when their time is taken up in dealing with them, the time available for other court users and other duties is correspondingly reduced.

It is submitted by Ms Evans that the claimant is likely to continue to behave in this obsessional and vexatious manner in the future unless an ECRO is made. The claimant has declined to reduce the amount of correspondence and I have already referred, in relation to this defendant, to how new claims and applications have repeatedly been made.

Relevant too, however, so far as judging her future conduct is concerned, are the claims that she has made against others parties such as Google Inc and the University of Glasgow. I need not go into the evidence in relation to those matters for obvious reasons, but my attention has been drawn to them, legitimately in my judgment, because, as I say, the conduct is relevant to making an assessment of the claimant’s likely future behaviour towards this defendant.

Ms Evans has particularly highlighted what she calls “the pattern of issuing and discontinuance”. The claimant has issued and then discontinued, or threatened to discontinue, on four occasions so far. There were the Manchester District Registry proceedings, which were discontinued on 23^rd September last year; the discontinuance against Google Inc of the same proceedings on 10^th March this year; the first notice of discontinuance in relation to the claim based on fraud against the first defendant on 26^th February; and then the actual discontinuance of the claim on 26^th May. (In the interim there had been an instruction by the claimant to the court to disregard her first notice of discontinuance.) This pattern is also reflected in litigation against the other parties to whom I have referred.

Turning to the question of cost, it is clear that the claimant’s outstanding liability to the first defendant and Google Inc so far is over £100,000. The total of costs incurred of course exceeds that by some considerable margin, as Mr Barker makes clear in his second witness statement. Because the claimant is impecunious and able to claim dispensation in respect of the issuance of court proceedings, there is currently no incentive for her to curtail her troublesome and obsessional behaviour: that is why an ECRO is now sought. The claimant has indicated in communications with the court, and with the first defendant’s solicitors, that she is without funds, to all intents and purposes, and that she has no intention of paying the costs which have already been ordered against her. For these reasons, the defendant submits that the time is right for the making of an ECRO to last for the maximum of two years.

It is a sad story in many ways but the evidence is clear and, in my judgment, the grant of an ECRO is amply justified. I will so order.