Woodward v Grice

I turn first to the extent of publication in terms of the length of time the postings were accessible.

On the evidence before me, the Fansonline posting was made on or about the 8^th of July 2015 at about 8am. It was removed by the website operator no later than the 27^th of July 2015. The period it was accessible was accordingly some three weeks.

I say ‘no later’ because of the evidence of Mr Jeremy Lacey which as I have explained, took the form of his witness statement dated the 30^th of March 2016. That witness statement is not entirely clear as to the date of the removal. What Mr Lacey explained in his statement was that Fansonline.net Ltd had received an email on the 20^th of July from a Mr Rawlinson which contained an attachment of a letter of complaint dated the 20^th of July from the Claimant. That email was not opened until the next day whereupon, in accordance with the Defamation Act 2013, the operator emailed the poster about the post which was the subject of the complaint. The poster who was the Defendant did not reply within the time frame according to the Act so:

The Claimant when giving evidence and being questioned by the Defendant accepted removal could have been the 26^th of July.

As to when the backhenrystreet posting was removed, the evidence as to this came from its owner Mr Crashley. In short form his evidence which I accept was that the backhenrystreet posting was removed by 8.15am on the 22^nd of July 2015. It follows that this post had been accessible on the site for some two weeks since its posting on or about the 8^th of July 2015.

I should however record Mr Crashley’s evidence in a little more detail since it was for the court an insight into how it is not necessarily straightforward to access a particular ‘discussion thread’. Mr Crashley explained that the original Notice of Complaint sent to the administration email address of the site on the 20^th of July, stated that a discussion thread entitled ‘Phase II The Stockport One;’ contained allegedly defamatory content authorised by a user with the handle ‘FP Charade’. The Notice contained a website address supposedly directing to the words complained of, but in fact the identified link directed to a different discussion thread entitled ‘Hello Cheesy’ where the offending words did not appear. It was only when later the same day a second notice of complaint was sent with an amended website address that the administrators were directed to the correct discussion thread. Thereafter on the 21^st of July the user ‘FP Charade’ was contacted by the site and informed of the Notice of Complaint as required under the Defamation Act 2013. The Notice of Complaint had come from a Mr Jim Rawlinson using the registered domain of Denwis Limited a company with its registered address at Blackpool Football Clubs Stadium. Mr Rawlinson was kept informed of these procedures.

The conclusion in witness statement from Mr Crashley which he adopted in his evidence and which was not challenged, was then as follows:

I turn to the extent of publication in terms of its scope and reach and the likely extent of readership.

The two websites concerned in this case are not the equivalent of national newspapers with a wide circulation. As regards the post on Fansonline the post was on the Blackpool FC section of an internet website for football fans. This was true also of the post on the backhenrystreet website. The material section of the websites were accordingly specifically for persons of who had an interest in Blackpool Football Club. The Claimant makes the point in these circumstances that those who were likely to have read the words complained of were not just a random section of society but instead were a narrowly focussed group of persons who were followers of Blackpool Football Club and who could be expected to know of the Claimant. Further in these circumstances the Claimant asserted in his evidence that this untrue allegation as to his being a struck off solicitor, would form the basis for highly charged gossip and rumour and would be liable to spread quickly. To quote paragraph 9 of the Claimant’s witness statement of the 31^st of March 2016:

Based on this evidence, Mr Shannon submitted that the court should approach the question of the extent of the publication on the basis that the original number of readers of the allegations, that is the readers who accessed the particular discussion threads, are likely to represent only a small fraction of the number of persons who were eventually told of these statements.

The likely number of persons who would have read the offending postings on site before they were removed was in itself a matter of keen dispute before me, as anticipated in the pleadings.

In his skeleton argument Mr Shannon submitted that the number of persons who actually read the postings was not known with any degree but argued from the evidence of the Claimant as to the number of ‘hits’ on ‘various postings’ on the two websites (not however the postings complained of in this case) that although it could not be said that every hit was by a different person, the numbers ‘give an idea of the size of readership’. The numbers of hits displayed on the Backhenrystreet site for each thread ran, it is said, into thousands and therefore the conclusion could properly be reached that:

The evidence before me on likely level of readership of the discussion threads containing the words complained of, was in fact far more circumspect than Mr Shannon submitted. The Claimant gave no evidence as to the numbers of ‘hits’ on the Fansonline site. His evidence as to the hits on backhenrystreet was not from his own knowledge, it amounted to the following taken from his 31^st of March statement at paragraphs 7 and 8:

This evidence has to be set against the evidence given to the court by Mr Crashley the owner of the backhenrystreet site. His evidence, which I accept, was to the effect that one had to approach the cited statistics as to the number of hits and the inferences as to readership to be drawn therefrom, with great caution. ‘Hits’ were made up of crude counter increments every time a page on a given thread was loaded. These hits could represent the same person reloading multiple times. His evidence was that the statistic as to the West Ham thread, for example, was of hits recorded over four years and the 60,000 hits might represent only some 2,000 different persons making a hit over that four year period. Moreover Mr Crashley emphasised that there was no necessary correlation between the number of ‘hits’ and the numbers of persons who actually read the contents of a particular page on any given thread. A ‘hit’ represented a ‘visit’ to a page on the thread in question but that page was not necessarily the page where a particular posting was on.

When cross examined by Mr Shannon, Mr Crashley accepted the proposition that most hits on a thread on a site come in the early days and diminish with time but said it was impossible to put a percentage on this. He did not accept the suggestion that 90% of hits were made in the first 10% of the time a thread was on site. He maintained his evidence that the number of hits did not equal the number of different people making hits and nor did every hit mean that the hitter had read every post within a thread. He agreed that for backhenrystreet some threads were seen by 100s of people and some by over a thousand but qualified this agreement by saying that the very highest visited threads are probably seen by at most 2,000 people.

Mr Crashley was asked to give the scale of readership for the two sites. He said Backhenrystreet had about 400 persons a day accessing various different forums but it was not known how many read any particular page of any particular thread. Fansonline was part of a much bigger network with a much bigger readership but although in the context of those with an interest with Blackpool Football Club that meant there was likely to be more users of the club forum, this had to be set against the fact there would be more individual posts on different subjects which a given user might be accessing.

Mr Crashley’s overall point in re-examination, which again I accept, was that without access to an analytical user system there was no way of telling how many people had seen a particular page or viewed a particular post.

My conclusion given all this evidence, is that one can say only that it is likely that these particular posts with the words complained of, were read by at most 100s of people rather than 1000s. I have borne in mind that this was the close season aswell as the relatively short period the sites were accessible.

Moreover I am unable to find that the likelihood is that this untrue allegation of the Claimant being struck off, will have spread like wildfire as gossip and rumour throughout the Blackpool community. This on the evidence before me would be pure speculation. It is not without significance that the Claimant gave no evidence of being approached by members of the community who had knowledge of this accusation. As the Defendant submitted to me there was no evidence called from colleagues or others speaking to his reputational harm as a result of what had come to their attention. The high water mark of the Claimant’s evidence in this context was at paragraph 11 of his witness statement:

In making these findings on the extent of publication and the lack of positive evidence from third parties who had come to know of what was being said, I do not wish it to be thought that I consider the Claimant is entitled to only nominal damages for injury to reputation. As I have said, there is no requirement to prove actual damage. On any view this was a serious libel no matter how limited its circulation and the Claimant is entitled to substantial damages in vindication of his reputation. I do not accept the Defendant’s submission that the words complained of would have been treated by any reader or anyone else who became aware of them, as mere saloon talk made tongue in cheek.

That said however my findings on the limited extent of publication taken with the concession made that there was no established injury of significance to the Claimant’s professional reputation within his employers, will go to moderate those damages to a degree.

I turn next to consideration of the matters arising in this case relevant to the claim to aggravated damages.

I turn first to my review of the evidence as to the Defendant’s state of mind and motivation in publishing the words complained of, before turning to a consideration of the Defendant’s conduct once he became aware of the complaint and in defending these proceedings.

The evidence on the background to the postings provides a clear insight into the Defendant’s state of mind.

There is undoubtedly a general background of disgruntlement amongst a certain group of dedicated Blackpool Football Club fans, with online protests aimed at members of the Oyston family, concerning the management of Blackpool Football Club since it was taken over by the Oyston group of companies owned by Owen Oyston. This has already given rise to actions in defamation brought by members of the family, against such fans, in particular by Karl Oyston, the son of Owen, and the chairman of the Club. See Karl Oyston and Others v. Ragozzino [2015] EWHC 3232 and Oyston v Reed [2016] EWHC 1067 (QB).

The Defendant counts himself as one of such dedicated fans upset at the way the club is being run. It became clear during the course of the hearing before me that he has had access to some of the court papers in the Ragozzino litigation and perhaps the other case, when he produced purported copies upon which he relied when suggesting in cross examination that the Claimant’s signature on his statement of case was a forgery, and when raising issues concerning the legitimacy of the costs claimed in those other cases.

More particularly, it is clear that in the lead up to the Defendant making the posting complained of, he felt embittered towards the Claimant who had been the solicitor acting on behalf of Samuel Oyston (the son of Karl) against whom the Defendant had not long before, brought proceedings in defamation for an online publication questioning the reasons for the Defendant’s dismissal from his employment in Blackpool. The hashtag ‘sticky fingers’ had been applied. Those proceedings were ultimately concluded by a settlement in which the Defendant accepted £20,000 in damages.

It would appear that in February 2015 in the course of negotiations, the Claimant on behalf of Mr Samuel Oyston, sent an email to the Defendant, and then the next day wrote to the Defendant’s then solicitors enclosing a copy of a letter written to the Defendant by his previous employers concerning a disciplinary hearing. The letter also advised the Defendant’s solicitors of other accusations said to have been made against the Defendant in the course of his previous employment. That disciplinary hearing letter it seems had been given to Samuel by his father Karl (Samuel said as much in a further letter to the Defendant’s then solicitors in the course of the settlement negotiations).

It was no purpose of the hearing before me to investigate, and certainly not to determine, the rights or wrongs of the tactics adopted by either party in those negotiations (Mr Shannon for example submitted that the documentation in question was always going to be discoverable in those proceedings given the subject matter of the proceedings). This was a wholly collateral matter whose resolution could have no bearings on the issues before me. It could have had have no bearing on any defence of justification for the words complained of, had one been raised. It could provide no mitigation in law to the damages claimed for this libel.

However this background is, as I have already indicated, relevant to this extent. It is an insight into the Defendant’s hostile state of mind towards the Claimant at the time he published the words complained of.

It is clear both from that which the Defendant put in his written statements in the course of these proceedings and in the evidence he gave to this court under cross examination that he has an enduring sense of grievance against the Claimant (as well as against the Oyston family) about the way those settlement negotiations were conducted. In particular he resents what he regards was the wrongful obtaining of confidential documents about himself from his employer, and which he considers were then used as a form of blackmail to coerce him into settlement. So for example at paragraph 39 of his Defence he wrote:

Further evidence of the way the Defendant’s mind was operating towards the Claimant at the time of the posting, was the Defendant’s reaction to the suggestion in cross examination that he had a hostile animus against the Claimant and that he preferred to make serious assertions against the Claimant so long as he did not know anything different. Mr Grice, although denying the suggestion of animus, reacted by saying ‘people in glass houses should not throw stones’ which he then explained was a reference to how he felt about the way he had been treated by the Claimant and the Oystons in those previous proceedings which had meant, he said, he could not find employment again in Blackpool. At one stage in this cross examination he spoke of being stunned when he received the email from the Claimant in February 2015 and he conceded all this was in his mind when he posted what he did.

I turn to review matters relating to the Defendant’s conduct in defending these proceedings.

The proceedings were commenced against the Defendant by a Claim Form and Particulars of Claim issued on the 7^th of August 2015. They were sent by the Claimant who then acted in person to what he understood to be the last known address of the Defendant in Blackpool. It is clear the documents did not reach the Defendant by that means and had to be served personally upon him some days later at a local cricket club. The Defendant told me in evidence that he had not lived at that address for some time but conceded that he had been reluctant to give the Claimant or any one connected with the Oysten family, his current address because of the ongoing disputes between him and them. He also told me that he had not accessed any email which had been sent to him in July by the owner of the Fanszone website giving notice of the complaint made on behalf of the Claimant, because that email, as he later discovered, had been sent into his junk email folder. It is also clear that the letter before claim dated the 6^th of August sent to the Defendant again at the long abandoned Blackpool address, did not reach him until after the claim had been issued.

I record these details as to how the complaint of the Claimant first came to the Defendant’s attention because it was part of the Defendant’s defence that these proceedings were some kind of vexatious litigation being issued unnecessarily, given the speed with which the offending words taken down once the complaint was received by the website operators, or alternatively that the proceedings were issued in breach and abuse of the Pre-Action Protocol.

The material paragraphs of the Defence are as follows:

The difficulty for Mr Grice, in putting forward these contentions is however that when on any view the complaint did come to his attention, which must have been by the 11^th of August 2015 at the latest, (see paragraph 29 of the defence in which the Defendant describes his fruitless searches of the SRA website that day, trying to investigate the Claimant’s status), he did not then take any steps to issue an immediate apology. Although the offending post had by that date been removed by the website owners, without any input from the Defendant, and had been so removed before proceedings were even commenced, the Defendant himself when being appraised of the claim against him, did not immediately retract what he had said and concede that his assertion that the Claimant was a ‘struck off solicitor’ was incorrect.

Far from it, it is clear that the Defendant persisted in his allegation until the injunction hearing of the 17^th of August. It appears that it was only on the 17^th of August 2015 at the hearing of the interim injunction application, that the Defendant finally did accept that the Claimant was not struck off, and then, I was told, only after having the SRA website searched in front of him on counsel’s laptop in open court, and after he had been shown the outcome of the search.

The Defendant was undoubtedly up until the 17^th of August reluctant to accept that the Claimant was not struck off. On the evidence he gave in answer to questions from Mr Shannon, he was up to that date clearly of the frame of mind that unless he could be shown positive evidence to the contrary, he would maintain that the Claimant was struck off as this was his firm belief based on what he had been told by others. He clearly did not appreciate that it was for him to be able to produce positive evidence of the truth of what he was asserting, and to make sure of its truth before making any publication, rather than for the Claimant to disprove it. This was vividly illustrated when in conceding that until the 17^th of August he was still asserting the Claimant was struck off, he answered ‘Yes, until I knew any different’. It was further illustrated in his evidence as to the difficulties he had experienced as a lay person in knowing where to look to check the position and how his search of the SRA website on the 11^th of August was ‘not confirming he is regulated’.

It follows in my judgment whatever failing there may have been on the part of the Claimant as regards following the Pre-Action Protocol as to which I find it unnecessary to make any finding, this cannot affect my assessment of the damages to which the Claimant is entitled. It cannot go in mitigation of damages. This Defendant is not a Defendant who would have immediately retracted his libellous statement if only the contents of the proposed claim and then the claim itself, had been brought to his attention sooner. His persistence in pursuing the libel right up to the interim injunction hearing until the contrary was demonstrated to him, does however go to the aggravation of damages.

Although the Defendant did not in evidence in chief pursue everything which was in his pleaded Defence, this court when considering the claim for aggravated damages, cannot ignore the breadth of these express or implied allegations of impropriety and dishonesty against the Claimant which were wholly irrelevant to any defence in law to the claim for libel. I have already referred to two particular matters pursued at trial in paragraph 30 above (forgery of signatures on court papers; the Claimant being used as a front by the Oystons to pursue these proceedings as part of a vindictive campaign against the Defendant) but I am bound to record some of the others (by reference to the paragraphs in the pleaded defence) and in respect of which there is no evidence justifying any allegation of dishonesty as against the Claimant (even if this be a relevant consideration in the context of these proceedings):

The Defendant also persisted in pursuing a belief as to something being amiss with the status of the Claimant within the Oyston group of companies and with professional indemnity insurance available to the Claimant (see paras 26 and 30 of the Defence). Para 31 of the defence reads:

When asked by Mr Shannon the basis for his assertions in this paragraph, Mr Grice replied; ‘this is what I am told’.

Further, both in his questioning of the Claimant and in his witness statement, the Defendant suggested without any foundation other than his belief based on what he had been told, that the Claimant had been the subject if some kind of regulatory hearing and that the Law Society had placed restrictions on his work.

Taken together the pursuit by the Defendant of these damaging slurs against the Claimant, have to be seen as a significant aggravation of the injury to the Claimant’s feelings arising out of the admitted libel before me.

I now record my findings on the matters going to aggravation of damages.

By reason of the matters I have set out above when considering the background to the posting (and indeed the basis for the Claimant’s pursuit of other allegations), I am driven to two conclusions as regards the Defendant’s state of mind and motivation when publishing this libel:

Then in addition I identify the following features of the Defendant’s conduct which inevitably in themselves go to the aggravation of the damages in this case:

Taken together these various matters must be a significant aggravation of the injury suffered by the Claimant arising out of the libel.

The Apology ultimately made by the Defendant on the 16^th of June 2016 on the Fansonline website, and repeated in court before me, does go to mitigate the damages to a degree. But I cannot hide from my assessment of the appropriate degree of mitigation that it was not offered immediately when the Defendant was aware of the complaint being made as to his posting, or even on the occasion of the interim injunction hearing. I have regard to the Defendant’s evidence that following the terms of the Order for Summary Judgement he, as a litigant in person, was awaiting a form of words to be suggested or on behalf of the Claimant which words never came. I accept moreover that he was anxious to obtain an out of court settlement which never materialised for whatever reason. But the facts remains the apology was made late on into the proceedings and perhaps more significantly was never, before the proceedings before me began, communicated to the Claimant personally but rather was simply published online. These two facts must inevitably dilute the weight to be attributed to the Apology for the purposes of mitigation and in themselves are some additional factors going to aggravation.

Having regard to all the material factors which I have identified in the course of this judgment, my conclusions are these:

As I have said this was a serious libel and was not one to be construed as some mere tongue in cheek saloon bar banter. However, if the publication of this libel had stood alone without any matters going to aggravation of damages, then having regard to my findings in paragraphs 54 to 55 above as to the relatively limited extent of the publication both in terms of time and scope/reach, and given the concession made as to the lack of any damage of significance to the Claimant’s professional reputation within his employers, and having regard to the Apology ultimately made such as it was, I would have awarded damages in vindication of reputation and to compensate for distress and hurt feelings, in the sum of £10,000.

However having regard the matters going to a significant aggravation of damages which I have identified above, I assess damages in the sum of £18,000.

I should add for the benefit of the Defendant that throughout the hearing and when reflecting on the evidence before giving this judgment, I have not been unsympathetic to his obvious and genuine sense of grievance in relation to his perception of the rights and wrongs of the dispute with which he has been involved connected to the Oyston family and in which the present Claimant played a role. However he must, I am afraid, understand that for the reasons set out in this judgment, these matters cannot in law as a matter of principle go to mitigate damages for this particular libel.

I grant permanent injunctive relief in the terms of the draft put before me on behalf of the Claimant. This will take the place of the interim relief currently in place. Although the Defendant says he has no intention of repeating the words complained of, given my findings of the tendency of the Defendant to shoot from the hip without thinking through the implications of what he is saying, I consider the risk of repetition to be a real and continuing one.

I invite the parties before the handing down of this judgment to submit in writing submissions as to the form of the Order to be made in the light of this judgment and also as to costs.