Pirtek (UK) Ltd v Jackson

The claimant (“Pirtek”) applies for an order that the defendant (“Mr Jackson”) be committed to prison, or made subject to some alternative sanction, for contempt of court by breaching injunctions granted against him by me on 9 November 2017. The injunctions prohibited Mr Jackson from further publishing statements and meanings about Pirtek which the company had complained were libels or malicious falsehoods, or both.

The injunctions were among the remedies I granted after hearing applications by Pirtek for final judgment in default of acknowledgment of service, and summary disposal of its claims. I gave a reasoned judgment explaining my conclusions and the remedies that I granted, [2018] EWHC 2834 (QB) (“the November Judgment”).

On that occasion, Pirtek was represented by Ms Addy of Counsel. Mr Jackson did not attend the hearing, nor was he represented. I gave careful thought to whether it was right to proceed in his absence: see the November Judgment at [19]-[24]. Among my conclusions were these (at [23]):

“There is nothing at all before me, by way of evidence or otherwise, that suggests that I ought to adjourn or that it would be unfair to proceed in Mr Jackson’s absence. He has not asked for any adjournment. My conclusion is that he is not here because he has decided not to attend, despite having full knowledge of what is going on. … He has not taken any of the many opportunities available to engage with these proceedings, and put evidence before the court.”

Today, Pirtek is again represented by Ms Addy. Again, Mr Jackson is not present, nor is he represented. Again, I have had to consider whether the hearing can fairly proceed in his absence. Applying the principles identified in the November Judgment, and those elaborated later in this judgment, I have decided that it can and should proceed. Mr Jackson has had a fair and ample opportunity to respond to the application. He has decided not to attend, or to participate in any other way.

Having heard Ms Addy, read the written evidence filed, and taken time to consider the matter I have upheld a large number of Pirtek’s allegations of contempt. For the reasons given below I find Mr Jackson to be in contempt of court.

I believe that the applicant would have wanted me to go on and decide on penalty forthwith. I have however decided to give Mr Jackson a final opportunity to engage with these proceedings, to apologise, and to make submissions in mitigation.

In paragraph [24] of the November Judgment I made clear why I was handing down a written judgment, and directing Pirtek to serve a copy on Mr Jackson:

“In that way, he will not be hampered or delayed in getting to know my reasons. Anyone has the right to obtain a transcript. But Mr Jackson is a litigant in person who lacks or may lack the knowledge or the financial resources to obtain a transcript. Proceeding in the way I have described will give him an opportunity to consider and, if he thinks it appropriate, to make a timely application to the Court for Pirtek’s applications to be re-listed pursuant to CPR 23.11(2), or to set aside the default judgment which I propose to enter.”

For essentially the same reasons, I am again handing down a written judgment. I am doing so on Tuesday 1 May 2018, the day following the hearing of the committal application. The judgment and the formal order will be served on Mr Jackson, giving him fair notice that I will decide penalty at a hearing on Friday 4 May 2018. In the end, Ms Addy has not opposed this course of action.

This is an action for libel and malicious falsehood.

The claimant (“Pirtek”) is a company which carries on the business of providing hydraulic hose replacement services to industry. Pirtek does this through a network of franchisees, about 65 in number. One such franchisee was a company called Starflow Hydraulics Limited (“Starflow”). The defendant (“Mr Jackson”) used to own and operate Starflow. He guaranteed the performance of its obligations to Pirtek.

Following a series of disputes between the parties, Mr Jackson was made bankrupt and in early 2016 lost his home.

In and after April 2016, a campaign was carried out online and via social media disparaging Pirtek, its products and services. The campaign was conducted mainly via a website, a Twitter account and a Facebook page. It is that campaign which led to this action. It was Pirtek’s case that Mr Jackson was behind all these online and social media postings. It also complained of an email sent in 2017 which it alleged was sent anonymously by Mr Jackson.

The action was started on 13 April 2017. In summary, the meanings or imputations that Pirtek complained of as libels and/or malicious falsehoods are:

On 7 November 2017 I heard an application by the claimant for judgment in default of acknowledgment of service and summary disposal pursuant to ss 8 and 9 of the Defamation Act 1996 and CPR 53.2. I reserved judgment and two days after the hearing I handed down the November Judgment.

The November Judgment sets out the factual background more fully. In it, I concluded that it was right to proceed in the absence of Mr Jackson (see above); that the court had jurisdiction to deal with the matter; that the relevant procedural requirements had been satisfied; that Pirtek’s pleaded case made out good causes of action in both libel and malicious falsehood; and that the company was entitled to

I decided that a declaration of falsity was not required but awarded the company 90% of its costs of the action, and made a summary assessment of costs in the sum of £53,560.

An order was drawn up to give effect to those conclusions.

The wording of the final injunction order I granted was as follows:-

“... that the Defendant be prohibited from further publishing or causing the publication of (i) any of the statements complained of in the Particulars of Claim or (ii) any statements bearing the meanings complained of in the Particulars of Claim or (iii) any statements of and concerning the Claimants bearing meanings the same as or similar to those complained of in the Particulars of Claim. The Defendant must not do any of these things himself, or by an employee or agent, or by any other means.”

The order contained provisions as to service. Paragraph 6 provided that if it was not possible to effect personal service of the Order on the Defendant by 4:30pm on 14 November 2017, it could be served on him by sending it to a specified email address in his name, service to be deemed effected at the time that the email was sent. Paragraph 7 required Pirtek to serve on Mr Jackson with reasonable dispatch in any event a copy of the Order and the Approved version of the November Judgment. That was to be done by first class post to an address in Hitchin and by email to the same email address.

The evidence before me on this occasion shows that these provisions were complied with. The affidavit of the claimant’s solicitor, Ms Yates, shows that on 10 November 2017 she emailed Mr Jackson an unsealed copy of the Order and a copy of the Approved Judgment. A process server attended the address which Mr Jackson had previously used in correspondence. This was his daughter’s home. She said he did not live there and that she had thrown away correspondence sent to that address. Attempts to effect personal service were thus unsuccessful, so on 17 November 2017 Ms Yates emailed the order and Approved Judgment to the specified address again. On 20 November 2017 she emailed him a copy of the sealed version of the order.

There has evidently been no indication that these emails did not reach their intended destination. There are some clear indications that Mr Jackson did receive them. Ms Yates records, as a result of monitoring Mr Jackson’s website, and his Facebook and Twitter accounts, that he made changes to the website and Twitter account after the emails were sent. He imposed password protection on some parts of the website and removed the Twitter account that had been complained of in the Particulars of Claim. Another Twitter account came into existence, with the handle Pirtek-franchise.com@pirteksurvivors. Pirtek’s case is that this is a matter of Mr Jackson just changing his Twitter handle, not removing himself from the platform.

By its application notice dated 9 March 2018, Pirtek asks the Court to determine that Mr Jackson is in contempt of court by carrying out the acts specified in a Schedule to the application notice; to commit Mr Jackson to prison, or to fine him; and in any event to order him to pay Pirtek’s costs of the application.

In summary, the case set out by Pirtek in the Schedule to the application notice is that Mr Jackson has acted in breach of injunction on numerous occasions since it was made and served on him, by publishing on webpages, and on Twitter, (i) statements complained of in the Particulars of Claim and (ii) statements bearing meanings complained of in the Particulars of Claim.

The first question for consideration is whether the procedural requirements for a committal application have been complied with. The Court will be reluctant to proceed unless there has been strict compliance: see Galloway v Ali Khan [2018] EWHC 780 (QB) [10].The requirements are set out in CPR 81.4 and following, and summarised in Galloway at [12]-[19]. Here, as the rules require, the application is made under Part 23, supported by an affidavit of Emma Yates, of Pirtek’s solicitors. The allegations of breach are fully and fairly particularised. I shall say some more about this later in this judgment.

It is of course important for an applicant to prove service of the order, the terms of which are said to have been broken. I have dealt with that already. Equally important is the need to serve the application itself. The general rule is that such an application must be served personally. The application has not been served on Mr Jackson personally, but an order for service by an alternative method has been obtained and complied with. The background is this.

Attempts were made to serve the committal application and supporting evidence personally. An address in Letchworth was identified as Mr Jackson’s most likely current address. In February 2018, process servers attended and left a letter. On their follow-up visit they met Mr Jackson’s mother, or a person who identified herself as such. In a phone conversation this person told the process server that Mr Jackson was “working away” and due to return in March. On a further visit a week later, however, a neighbour advised the officer that they had recently seen Mr Jackson at the Letchworth property several times. After this, further changes were made to the website, indicating that Mr Jackson had become aware that Pirtek were continuing to pursue the matter. The new Twitter page appears to have been temporarily deleted.

Pirtek then sought to progress the application by asking for a hearing to be listed for 28 March 2018, proposing that a bench warrant be issued if Mr Jackson did not attend. I dealt with this application on the papers. I declined to proceed in this way, vacated the hearing, and indicated that the claimant should seek an order for substituted service. On 29 March 2018, Master Eastman made an order dispensing with personal service and permitting Pirtek to serve all the application documents by email to the same email address as before. That was duly done.

Having satisfied myself that Pirtek has met all the applicable procedural requirements, I considered whether I should nonetheless adjourn the proceedings, to give Mr Jackson a further opportunity to respond to the application. The approach to be taken where an alleged contemnor does not appear at the committal hearing has very recently been considered by Spencer J in Calderdale and Huddersfield NHS Foundation Trust v Atwal [2018] EWHC 961 (QB) [37]-[38]. I gratefully adopt his summary of the applicable principles, to be derived from R v Jones [2003] 1 AC 1 (HL) and Sanchez v Oboz [2015] EWHC 235 (Fam) (Cobb J).

Jones shows that the Court must consider why the respondent is not present; whether an adjournment might mean the respondent turns up; how long any adjournment would need to be; the evidence as to the defendant’s wish to be legally represented; and the interests of the applicant and the public in the expeditious resolution of the issue. Sanchez makes the point that the court should consider “the extent of the disadvantage to the defendant in not being able to present his account of events”, and whether “undue prejudice would be caused to the forensic process” if the application were to proceed in the defendant’s absence. In Galloway, similar points were influential in my decision not to adjourn to allow the respondent to obtain representation: see [34]. In this case, as will appear, I find it hard to see any room for a credible denial that there has been contempt to a significant degree.

There is also this point, made by Tugendhat J in McCann v Bennett [2013] EWHC 283 (QB) [148](and applied in Galloway [33]):

“In a case where one party is self-represented the court will be bound to look for points that the litigant may have missed, and counsel for the other party is under a duty to the court to assist by reminding the court of points of law which may be available to the litigant.”

The same applies where the self-represented party is absent.

I have already had to consider the reasons for Mr Jackson’s non-appearance at a hearing. In November 2017 I reached the conclusion that he had deliberately absented himself. I approach the issue with added caution on this occasion, as the matter is quasi-criminal. But the evidence convinces me that Mr Jackson has again decided not to engage with the Court process. He knows he is being pursued by way of a committal application. He has had the paperwork, by email. He has had an adequate, detailed, account of the complaints against him. He has had a full and fair opportunity to respond. He has chosen not to do so. The fact that he took this same approach before is just an added reason for these conclusions.

There is still one further matter to address, namely the availability of legal aid. It is convenient to refer to what I said about this in Galloway at [17]-[19]:

“17… CPR 81, PD 15.6, and the rules of natural justice require that the respondent to a committal application is told that she may be able to obtain legal aid and be given the contact details for the Legal Aid Agency. She must be given the opportunity to obtain legal advice however funded.

18.

The question of how the court should deal with a situation where a respondent is unrepresented on a committal application was addressed by the Court of Appeal in Brown v Haringey LBC [2015] EWCA Civ 483. The court held that the defendant was entitled to criminal legal aid under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and The Criminal Legal (General) Regulations of 2013 …. The court was critical of the complexity of the relevant law and called for guidance to be given, which has since been done.

19.

The key point for present purposes is, however, that since the respondent is at risk of imprisonment or other penal sanction, the court must be scrupulous to ensure that the respondent is aware of the opportunity to be represented and the chance to apply for legal aid. In Brown, the Court of Appeal concluded that those points had not been made sufficiently clear and that an adjournment should have been granted to the unrepresented respondent. I am satisfied that in this case, these requirements of notice have been fulfilled ...”

Ms Addy has taken me carefully through the extensive correspondence sent by her instructing solicitors, in which Mr Jackson was repeatedly invited to seek legal advice and told that legal aid is available for contempt proceedings. Recommendations to take legal advice were contained in emails of 17 November 2017 (twice), and 1 December 2017. The same message was repeated in a letter dated 9 March 2018 which ended by pointing out that “Legal Aid is available for contempt proceedings”. That message was repeated in an email of 20 March 2018, and a further email of 5 April 2018, sent following Master Eastman’s order for substituted service. All of this correspondence emphasised the gravity of the matter, and the potential consequences.

I note that this correspondence did not provide contact details for the Legal Aid Agency. But on analysis, the CPR do not make this mandatory. By PD81 15.6 the Court dealing with a committal application must “have regard to the needfor the respondent to be … (2) made aware of the possible availability of legal aid and how to contact the Legal Aid Agency..” The former was made crystal clear. It is plain to my mind that if Mr Jackson had wanted guidance on how to apply for legal aid he could have sought it, and it would have been provided.

For these reasons, I am satisfied that it is fair to Mr Jackson to proceed in his absence. To do otherwise would in my judgment be unfair to Pirtek, and contrary to the overriding objective.

The applicant on a committal application bears the burden of proving to the criminal standard of proof that the respondent had proper notice of the order in question and that he has disobeyed it. The necessary state of mind must be established to the same standard. The applicant must prove that the respondent (i) knew of the terms of the order, and (ii) acted in a way that involved a breach, and (iii) he “knew of the facts which made his conduct a breach”. But an applicant does not have to prove that the respondent knew that what he was doing was a contempt of court. See McCann [127].

To prove contempt, an applicant may rely on hearsay evidence: Daltel Europe Ltd v Makki [2006] 1 WLR 2704; Masri v Consolidated Contractors International Company SAL [2011] EWHC 1024 (Comm) [157]. The approach to be taken to circumstantial evidence is the same as it is in a criminal court: Masri [146]. The Court may also be invited to draw inferences, including drawing adverse inferences from the respondent’s silence. But, as in a criminal case, such an inference may not be the sole basis for finding against the respondent; and the inference should not be drawn unless it is fair to do so and the Court is satisfied that the applicant has established a case that calls for an answer, and that the only sensible explanation for the respondent’s silence is that he has no answer, or none that could withstand proper scrutiny: Masri [147].

Ms Addy’s argument is that “Put simply, publication of the offending website and Twitter account continued even after the Defendant was served with the Judgment Order, which was endorsed with a penal notice”. The Schedule of breaches sets out in detail a litany of breaches which, she submits, are “remarkably consistent in tone and import.” With that broad summary, I agree.

As already indicated, the alleged breaches fall into two main groups. The first is the more straightforward to address.

The allegation is that Mr Jackson disobeyed injunction (i) by further publication of some of the very same words that had been complained of in the original Particulars of Claim. Paragraph 1 of the Schedule to Pirtek’s application notice identifies no fewer than 21 phrases which are complained of in the Particulars of Claim and were thus the subject of injunction (i), yet appeared verbatim on webpages at a specified address, or on Twitter at a specified location after service of the injunction. The annex to the Schedule contains printouts of the offending repetitions, all dated 24 January 2018. Ms Yates’ affidavit verifies that these were created as a result of the monitoring carried out by her and her associate. There is no room for doubt that the publication of prohibited wording continued for a considerable time after the injunction was granted and served.

Was Mr Jackson responsible for this? I have no doubt that he was. Bearing in mind the publications that led to the injunction and the nature of what has been published since, the inference is irresistible. I accept Ms Addy’s argument. There is from the outset an almost obsessive repetition of certain themes, which continues in the publications one sees post-order, with very similar wording and very similar style. The evidence that Mr Jackson composed what has been published is overwhelming. There is every reason to infer that he has published the wording on the websites and Twitter accounts or caused others to publish them.

The fact that the Twitter account at one stage included a disclaimer, suggesting that it was run by “Former franchisees NOT BOB JACKSON” does not impress. I pressed for information as to whether there is anyone else who might be a plausible candidate for author or publisher of this material. There is some evidence of support for Mr Jackson from third parties, and family members. But these are not realistic candidates. Ms Addy submits, it is very unlikely that anyone well-disposed towards Mr Jackson has been doing this as a means of supporting him. I regard that as something of an understatement. There is nothing else to indicate another author or organiser. I conclude that this disclaimer was placed online by Mr Jackson in a feeble attempt to cover his tracks. Otherwise, he has said nothing. Pirtek’s case is bolstered by the inference that I do draw from Mr Jackson’s silence in response to the present application. There is clearly a case to answer; I cannot see any credible explanation for that silence, other than his guilt of the acts complained of.

The second part of Pirtek’s application (paragraphs 2 to 4) complains of breaches of injunction (ii). For the reasons I have already given, I find that the publications in question were made or caused to be made by Mr Jackson. The question is whether that was in breach of the order. The complaints are as follows.

The three meanings I have quoted are not, in fact, meanings set out in the Particulars of Claim. Their origin is a summary of the meanings complained of in that statement of case, which Ms Addy produced in her skeleton argument for the November 2017 hearing. I approved and adopted that summary in the November Judgment at [43]. I have used it again at [13] above. This is perhaps a useful reminder of the potential perils of summarising pleaded meanings. But I do not think it matters.

I must examine whether the publications said to be in breach of injunction (ii) bear meanings that were complained of in the Particulars of Claim. Otherwise, there can be no breach of that part of the injunction. For this purpose, I apply the same principles as the Court would use to determine the meaning of a statement for the purposes of the law of defamation: see Jeynes v News Magazines [2008] EWCA Civ 130 [14], Bukovsky v Crown Prosecution Service [2017] EWCA Civ 1529 [11]-[17].

I do not propose to set out exhaustively in this judgment my findings on each of the 47 complaints under this part of the Schedule. That is not necessary, nor would it be proportionate. Ms Addy said that she would be content with findings on specimen “charges”. I am quite sure that it is not necessary to make and explain findings on every alleged breach in order to reach a fair and proper conclusion on penalty. I therefore adopt what I consider to be a just and proportionate approach.

There is one category of complaint that I can readily put to one side. Ms Addy fairly pointed out in her skeleton argument that there are some complaints that differ from the others, in that they include some additional element, such as reference to a new incident or a specific franchisee, or a new defamatory speculation. Her submission is that these can fairly be said to be small variations on the meanings complained of. She argues that these allegations are plainly caught by injunction 1(iii), as statements bearing meanings “the same as or similar to those complained of in the Particulars of Claim”. But that is not the complaint made in the application notice, which relies only on injunctions 1(i) and 1(ii). The application must be strictly construed. I therefore do not uphold the application in respect of the statements in the following paragraphs of Pirtek’s Schedule: 2.2.3, 2.2.4, 2.2.5, 3.3.2, 3.4.1, 3.8.1, 3.12.1, 3.13.1 and 13.14.1.

As to the remaining complaints in this category it is sufficient, in my judgment, to say that applying the principles I have identified I find that Mr Jackson has published statements which, in their natural and ordinary meaning bear meanings in breach of injunction (ii), in the respects specified in the following paragraphs of Pirtek’s Schedule: 2.1, 3.1.1, 3.3.6, 3.7.2, 3.9.3, 3.10.1, 3.13.2, 3.15.1.

Otherwise, I do not rule on the complaints one way or the other. It remains open to either party to seek a definitive ruling on these remaining complaints, if they so wish. But I may be hard to persuade that this is necessary or proportionate in pursuit of any legitimate litigious aim.

Given my findings on service and notice, it would have been open to me to accept Pirtek’s invitation to decide penalty in Mr Jackson’s absence. I am however giving Mr Jackson yet more time so that he can consider these findings, and their implications, and decide whether to participate in the hearing on penalty which will take place later this week. It is appropriate to set out in broad terms the legal framework within which my decision on penalty will have to be made, and to give him fair warning by this judgment of the submissions that he has to meet.

The Court’s powers are conveniently summarised by Ms Addy in her skeleton argument, as follows:

“19.

The sanction to be applied where a contempt has been established is a matter for the court:Att-Gen v Hislop [1999] 1 WLR 514 at 522-3.

20.

The court may fine or imprison … the contemnor, or suspend the sentence of imprisonment for a fixed term, bind him over to be of good behaviour, grant an injunction restraining further acts in contempt, order him to pay the costs of the committal proceedings, or impose no penalty beyond the finding of contempt.

21.

Any committal must be for a fixed term which must not exceed 2 years. A helpful consideration of the relevant factors on sentencing in cases of civil contempt is to be found inCrystalmews Ltd v Metterick [2006] EWHC 3087 (Ch) [9]- [13], though it is by no means a sentencing guideline.”

Ms Addy accepts that the leading textbook describes imprisonment as‘a matter of last resort’(see Arlidge, Eady and Smithat [14-5]). But thesubmissions advanced by Pirtek on the facts of this case are as follows:

“22.

Because the Defendant has chosen not to engage with the proceedings, his current circumstances are something of a mystery. The Claimant only has the trace report and investigations of the process servers to determine where the Defendant is actually living, and the Claimant does not know whether he is in work. The clear likelihood is that he lacks the means to pay a fine.

23.

In the Claimant’s submission, the Defendant is well aware of this application and hearing date. He refuses to respond to any approaches from the Claimant, however made. The Defendant plainly also refuses to cease making defamatory publications about the Claimant even though he now knows that the Judgment order requires him to do so. His behaviour to date strongly indicates that the Defendant will treat any additional injunction order or binding over with the same disdain as he has shown towards court orders to date. Only when the hearing of this application was certain did the Defendant take any steps to obey the Judgment Order (see paragraph 18 above). This obedience was short-lived: the website has reappeared and remains accessible.”

24.

In short, the Defendant is trying to deprive the Claimant of the remedies granted to it in an action he failed to defend and the costs of which he has failed to pay. As well as being a manifest injustice for the Claimant, this is a direct challenge to the authority of the court that requires a robust response. The Claimant wishes to see the order enforced.”

Pirtek acknowledges, and in fairness points out, that Mr Jackson has removed some of the offending content and restricted, or possibly prevented, access to some of it. Pirtek says these changes occurred shortly after Ms Yates had written to Mr Jackson. But Pirtek’s suggestion is that Mr Jackson is hiding his continued publications, by the removal of links or requiring passwords before they can be accessed, rather than simply ceasing to publish them. This is said to show that he knows he should not continue to publish these allegations. “He is either attempting to get away with continuing to do so or, is cynically gauging what minimal level of apparent compliance will dissuade the Claimant from further action against him.”

That said, I have been provided at this hearing with an updated version of Pirtek’s Schedule, which highlights the words complained of that are said to remain accessible online as at last Friday, 27 April 2018. This suggests that all the verbatim reproductions have now been taken down. What remains is statements complained of under 3.1, 3.2, 3.7, 3.8, and 3.12 – 3.14 of the Schedule.

Finally, it is appropriate to draw attention to the provisions of CPR 81.28(6):

“Where a committal order is made in the absence of the respondent, the court may on its own initiative fix a date and time when the respondent is to be brought before the court.”

As the notes to Civil Procedure 2018 make clear, this means that where the Court has issued a warrant of committal and the respondent has gone into hiding, the Court has jurisdiction to make ancillary orders, including an order that the respondent surrender to the tipstaff so that the warrant can be executed: n 81.28.7.