Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars)

In order to make out its case on malicious falsehood, the Claimant must show the following (see Gatley on Libel and Slander, 12^th Ed, at paragraph 21.1):

There is no issue in relation to 2) or 4). As to 2): the videos plainly refer to both Claimants. As to 4): the meaning of special damage is now qualified by section 3 of the Defamation Act 1952, which provides that:

“(1)

In an action for … malicious falsehood, it shall not be necessary to prove special damage –

(a)

if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff ….”

To establish “calculated damage”, a party must show that the statement of which complaint is made is calculated, ie, more likely than not, to cause him pecuniary damage: see Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs, see Tesla [37]. Mr Sambhi does not suggest that the effect of his statements would not be to put off some potential customers; indeed, his avowed specific purpose in publishing these statements is to do precisely that. It is self-evidently likely that the Company has suffered or will suffer pecuniary loss by way of lost sales as a result of the publication of the videos. These elements are therefore established.

The greater issue arises in relation to the other elements, namely 1) and 3), establishing that the words published are false and that they have been published maliciously. The First Claimant bears the burden of proving these elements.

Mr Rushbrooke QC, who appears with Mr de Wilde for the Claimants, invites me to conclude that one or other of the following meanings can be attributed to each of the videos which are the subject of this application:

He reminds me that the single meaning rule in defamation does not apply to malicious falsehood and that the task of a trial judge in a malicious falsehood case is to decide in relation to the reasonably available meanings of the words complained of “if a substantial number of persons would reasonably have understood the words to have such a meaning”. See Cruddas v Calvert [2013] EWCA Civ 748 at [30]. The same approach applies at the interim injunction stage.

I am satisfied that a substantial number of persons would reasonably have understood the statements complained of to bear one or other of these meanings. Indeed, Mr Sambhi does not suggest otherwise. When I asked him what he meant in these videos, he said he meant to say exactly what the Claimants suggest – as summarised above at [13]. He goes on to say, however, that he believes the statements, understood in those ways, to be true. That then is the real issue in this case: are these statements false?

Mr Sambhi has not filed a witness statement. He has not put before the Court any evidence to support his statements or his assertion that they are true. He has not done the “very minimum” which Eady J suggested is required. That is a poor start.

When I asked him what evidence he relied on in asserting that these statements are true, this is the answer he gave (I summarise). He said that it all came down to the lies that Mr Jones and the Company had told. Those lies, he said, related to what the Company and Mr Jones had said about the AKS stabilisers’ effectiveness in preventing “snaking”. Snaking is when a caravan starts to veer to left and right behind the towing vehicle; in serious cases, the towing vehicle can lose control resulting in an accident. Mr Sambhi pointed to some assertions made by the Company and by Mr Jones (for example in the Trade Show Footage) to the effect that the AKS stabiliser “helps to prevent snaking”; then he pointed to others to the effect that the product is “not preventative” or “does not prevent snaking” (for example, in the Recording). Mr Sambhi handed up various print outs from websites belonging to third parties (for example, other caravan retailers) which referred to the AKS stabilisers in different ways, some of them saying that the products “prevent” snaking, others that the products “help to prevent snaking”, and he argued that these references should be attributed to the Company and Mr Jones as further evidence of their dishonesty. He argued that the Company and Mr Jones have lied in suggesting that the AKS stabilisers are guaranteed to prevent snaking, and that each has acknowledged those lies by accepting that the AKS stabilisers in fact offer no such guarantee and merely help to reduce the risk of snaking. This lie, he says, is a deceit on the Company’s customers and justifies (as true) the various statements that he has made in his videos.

As is immediately apparent to anyone reading this judgment, none of the assertions by the Company, Mr Jones, or any third party amounts to a guarantee that snaking will not occur if the AKS stabiliser is fitted. The various descriptions of the AKS stabilisers made by the Company, Mr Jones and third parties are broadly consistent, and convey a very different message from that which Mr Sambhi urges on me. The message is that the stabilisers will help to prevent snaking. There is no guarantee against snaking offered. Thus, the whole of Mr Sambhi’s case appears to be built on a false premise. There is no lie.

Against that background, I come to ask myself whether any judge or jury, properly directed, could reasonably conclude that Mr Sambhi’s various statements with the meanings we are agreed on, could be true. The answer is no. As I have said, there is no lie. There is, in consequence, no reason to suggest that the Company is fraudulent, that it is scamming or conning its customers, that the Company and Mr Jones are killers, or that either is engaged in knowingly risking the lives of customers. These are the most extreme statements. There is no foundation for any of them. They are obviously untrue.

I have paused to consider carefully whether I should reach the same conclusion in relation to the statement that the AKS stabiliser is defective, because this is a less extreme statement, the converse of which is to determine that the AKS stabilisers are indeed safe products – which goes beyond what a court is usually willing to do at the interim stage. But here too, Mr Sambhi has provided no evidence at all to support his claim that the AKS stabiliser is defective. Further, his explanation for this statement is also based on the premise that the Company and Mr Jones have lied, a premise which I have determined to be entirely false.

He was critical of the fact that the Company and Mr Jones had refused his offer to test the AKS stabiliser (possibly by way of comparison with his own Torquebar product), this offer being made in the conversation between Mr Sambhi and Mr Jones which took place on 22 May 2017, but that argument does not provide any serious basis on which to conclude that the statement that the product is defective might in fact be true. Mr Jones’ refusal to participate in the offered test was understandable: it was made in the course of the second phone call between Mr Sambhi and Mr Jones, which phone call became heated at times and was set in the context of a dispute which had already emerged between Mr Sambhi and the Company; the offered test was not explained, and appears to have been of Mr Sambhi’s own devising; it was not, apparently, in any way accredited or objective in its results; and it was unclear what it was designed to show and how. This exchange does not in any way tend to show that Mr Sambhi’s statement might be true.

On the other side of the equation, the Company has provided the Court with evidence to demonstrate that its AKS stabilisers are safe: the Company points to the fact that it has been manufacturing the AKS stabilisers since 1975 and that it is now a leading brand in the industry; its products have been extensively tested to ensure that they are safe, with those tests going beyond what is required for regulatory purposes alone; the products all comply with the relevant EU wide regulations, having “type approval” administered by the German authorities (see Mr Jones’ witness statement at paragraphs 6, 7, 44-49).

In the end, Mr Sambhi’s statement that the AKS stabiliser is defective or unsafe is groundless. There is an overwhelming case to contrary effect and to demonstrate that the AKS stabilisers are safe.

On the evidence before me, there is no possible basis on which any judge or jury could conclude otherwise.

I therefore conclude that all the statements made in the videos are untrue.

Mr Sambhi says that he believes these statements to be true. A person can, clearly, be wrong without being in any way malicious. For the First Claimant to make out its case in malicious falsehood, they would have to persuade a court that Mr Sambhi is actuated by some improper motive in publishing these false statements.

Mr Rushbrooke laid particular emphasis on a passage from Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406 at [417], per Scrutton LJ:

“Honest belief in an unfounded claim is not malice. But the nature of the unfounded claim may be evidence that there was not an honest belief in it. It may be so unfounded that the particular fact that is put forward may be evidence that it is not honestly believed” (my emphasis).

In this case, the unfounded claims (as I have found them to be) are extreme and serious – statements that the Company and Mr Jones are killers, that they are liars, that they are fraudsters, that they are involved in scamming the public and covering up their own lies. I accept that these are wholly unfounded statements which in and of themselves, might be taken to provide evidence that Mr Sambhi does not honestly believe them to be true.

I also accept that there are other features of this case which might be said to point towards Mr Sambhi having improper motives in publishing this material. Mr Rushbrooke pointed in particular to the following:

Doubtless there are other factors which could be included in the above list.

However, in light of my conclusion that the statements are indeed, themselves, untrue (see [25] above), there is no need for me to reach any conclusion on this issue. Whether Mr Sambhi was in the past motivated by malice is, in the end, a matter for the Company to prove if it pursues a claim for damages for past loss consequent on the videos. The position is different for the future: Mr Sambhi will now understand, from this judgment, even if he has not understood it before, that the statements he makes in the videos are false. That means that any future publication of those videos (or any other similar videos which he may make in the future) would undoubtedly be malicious, and would amount to the tort of malicious falsehood. My approach is similar to that taken by the Court of Appeal in Kaye v Robertson [1991] FSR 62, per Glidewell LJ at p 68:

“As to malice I equally have no doubt from the evidence, including the transcript of the tape-recording of the "interview" with Mr. Kaye in his hospital room which we have read, that it was quite apparent to the reporter and photographer from Sunday Sport that Mr. Kaye was in no condition to give any informed consent to their interviewing or photographing him. Moreover, even if the journalists had been in any doubt about Mr. Kaye's fitness to give his consent, Mr. Robertson could not have entertained any such doubt after he read the affidavit sworn on behalf of Mr. Kaye in these proceedings. Any subsequent publication of the falsehood would therefore inevitably be malicious.” (My emphasis.)

I therefore leave the issue of malice undetermined for the past, on the basis that any future publication (which is all that I need be concerned with at this stage) would certainly amount to a malicious falsehood.

It is quite clear that unless restrained, Mr Sambhi will continue his campaign against the Company and its employees.

Recognising that any order I grant will interfere with Mr Sambhi’s right of free speech, which is a serious matter, I am nonetheless persuaded that this is an appropriate case in which the Court should grant the Company protection pending trial or further order.

Section 1 of the DPA provides that personal data means “data which relate to a living individual who can be identified (a) from those data…”. Processing includes any form of use of the information or data, as well as disclosure of the information or data by transmission, dissemination or otherwise making it available. A data controller is a person who determines the purposes for which and the manner in which any personal data are or are to be processed.

Section 10 of the DPA provides:

“(1)

Subject to subsection 2 an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons –

(a)

the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and

(b)

that damage or distress is or would be unwarranted.”

There are a number of exceptions to this broad rule, but it is common ground that none applies in this case. Specifically, the exceptions contained in section 32, which permit processing of journalistic, literary, or artistic material do not apply, because Mr Sambhi’s use of the material does not fall within any of those descriptors.

The procedure is that the data controller must, within 21 days of receiving a notice under subsection (1) (the “data subject notice”) give the individual who gave it a written notice either stating he has complied with or intends to comply with the notice, or stating his reasons for regarding the notice as unjustified and stating the extent (if any) to which he has complied or intends to comply with it. If a court is satisfied that the data controller has failed to comply with the data subject notice, then pursuant to section 10(4) the court may order that data controller to take such steps for complying with the notice “as the court thinks fit”.

A claimant is entitled to seek a court’s intervention to ensure that a data subject notice is complied with in circumstances where the data controller in question does not advance any reason for asserting that the data subject notice is unjustified, and where the claimant can show that he has suffered or is suffering substantial unwarranted damage or distress as a result of the processing of the personal data in question: see Mosley v Google Inc and Anor [2015] EWGC 59 (QB).

By letter dated 16 August 2017, Mr Jones (acting via his solicitors) gave a data subject notice to Mr Sambhi. Under that notice, Mr Jones required Mr Sambhi to cease processing his personal data by publishing and/or continuing to publish the words and images of Mr Jones or attributed to Mr Jones in the videos.

Mr Sambhi responded on 15 September 2017 saying only this so far as the DPA was concerned (I transcribe precisely):

“Paul Jones PD. Paul Jones is in 2 know videos interviews with Practical TV. These are in public domain and not in private domain and therefore “Open Market”. Paul Jones and Wright Hassall now can not say the opposite and to your own convenience when this advocates your position.”

Thus, it appeared that the Defendant was resisting the data subject notice on the basis that (he said) the data in question was already in the public domain.

There is no public domain exception to section 10 of the DPA. Mr Sambhi’s refusal to comply with the data subject notice was therefore not justified. It follows that Mr Sambhi has failed to comply with the subject data notice and has not advanced any reason to justify his failure to do so.

It is clear from Mr Jones’s witness statement that he is suffering substantial damage and distress as a result of the processing of his personal data by Mr Sambhi, in the various uses to which Mr Sambhi has put the Recording, the Trade Show Footage, and other images of Mr Jones. The use of his personal data extends far beyond the sort of criticism which a senior employee of a large commercial organisation might have to put up with in the ordinary course. Mr Jones is being vilified and menaced by the way in which his personal data has been used and manipulated in the videos. This is an unwarranted attack on him personally.

I am therefore persuaded that this is an appropriate case in which to order the Defendant to take steps to comply with the notice. Mr Rushbrooke invites me to do so by simply requiring the Defendant to cease processing any personal data in respect of which Mr Jones is the subject. He showed me Law Society v Kordowski [2011] EWHC 3185 (QB) where Tugendhat J granted a perpetual injunction following a final hearing, on such terms. I agree that the order should provide that Mr Sambhi must not process, further process or cause or permit to be processed any audio recording, video recording, still photograph or other information, including by disclosing the same to the public, amounting to Mr Jones’s personal data for the purposes of the DPA.

It is perhaps a footnote to this part of the Claimants’ application that Mr Sambhi is not, in any event, registered with the Information Commissioner. He should not be processing anyone’s data at all. See Sunderland Housing Company at [25].

I grant Mr Jones’ application for an order under section 10 DPA in the terms in which it is sought.

This application is allowed, in both limbs: to prevent malicious falsehood, and to prevent further breaches of the DPA.