Barclay v Tuck

This is an application to commit the defendant to prison for contempt of court for breach of orders made by Turner J on 14^th December 2016 and 28^th March 2017 to enforce an order made against the defendant in the French courts on 15^th January 2016. The French judgment required the defendant to withdraw pages accessible at seven of his URL addresses on the internet which were found to constitute mental harassment of the claimant. The order made by Turner J on 14^th December 2016 (“the First Order”) required the defendant to withdraw forthwith the webpages accessible at these seven URL addresses. The order made by Turner J on 28^th March 2017 (“the Second Order”) was made at the initial hearing of the application to commit the defendant for breach of the First Order. The defendant appeared in person. The application for committal was adjourned on terms which, in effect, gave the defendant the opportunity of complying with the First Order by taking specified steps in an agreed timetable.

The claimant’s case is that the defendant remains in breach of the First Order, and is also in breach of the Second Order. The application initially came on for hearing before Cheema-Grubb J on 5^th March 2018, during the course of which the defendant obtained the prospect of legal representation. The matter was therefore adjourned, and directions were given. I heard the application for committal in full on 16^th, 17^th and 18^th April 2018. The defendant was represented by counsel, Mr Terence Wong. The claimant was represented by Mr Sandip Patel QC. I reserved judgment.

The claimant, Sir David Barclay, and his twin brother Sir Frederick Barclay, are well known public figures. They have a home on the island of Brecqhou, in the Channel Islands. For a time the defendant also lived in the Channel Islands, on the island of Sark. Over a period of several years the defendant has been researching and writing an unauthorised biography of the claimant and his brother. He does not like them. The nature of the proposed biography, and other writings of the defendant, is an exposé of what the defendant alleges to be their discreditable background and conduct.

The defendant has for a long time written extensively about these matters in postings on the internet, at various URL addresses. Since at least 2010 there have been exchanges of correspondence between the defendant and lawyers representing the Barclay brothers. In 2014 their French lawyers wrote to the defendant requiring him to withdraw or deny access to various webpages at his URL addresses which contained particularly offensive and injurious material, failing which appropriate proceedings (criminal and civil) would be commenced in the French courts. The defendant declined to remove the offending material.

Proceedings were commenced in the Paris High Court, criminal and civil, in which judgment was given on 15^th January 2016. The defendant was charged under Article 222-33-2-2 of the French Penal Code with the crime of mental harassment through public online communication in relation to the seven URL addresses. In the concurrent civil action the claimant sought the prohibition of “continued dissemination in their current state of the pages accessible at URL addresses[listed]” (i.e. the seven addresses in question), in that they constituted mental harassment. The claimant also claimed damages, and an order requiring the withdrawal of the webpages in question.

The relevant provisions of the French Penal Code came into force on 4^th August 2014 and create the offence of:

The recurring themes found by the French court to have been published in the articles at the webpages in question were: accusations of tax fraud, suspicions of corruption, comments aimed at the claimant’s physical characteristics and those of his family, innuendo regarding his sexual orientation, dealings with individuals having committed serious offences, problems with public and social policy in the territories of Sark and Brecquou, surveillance put in place against the defendant, and multiplication of delaying legal proceedings.

There was medical evidence that the repetition of this behaviour was affecting and unsettling the claimant so that he had developed a reactive anxio-depressive syndrome. The court found that the claimant, who was aged 79-80 years at the relevant time, was a vulnerable individual.

The court found the defendant guilty of the acts alleged. For the crime he was fined €1,500. For the civil claim he was ordered to pay compensation of €700 for mental harm. He was ordered to pay €1,000 costs

As to the URL webpages, the French judgment reads:

On 30^th June 2016 the claimant’s solicitors wrote to the defendant requiring him to pay the sums awarded by the French court and to “take down the offending blogs”, failing which application would be made to the English court for enforcement of the judgment. He was informed that if thereafter he still continued to fail to take down the blogs, there would be proceedings for contempt of court which could result in his imprisonment. He was advised to consult a solicitor

On 20^th October 2016 the claimant’s solicitors wrote to the defendant giving him final notice that if he did not comply with the judgment, proceedings would be issued to enforce the French judgment by a mandatory injunction.

That application was duly made under Regulation (EU) No.1215/2012 (“Recast Brussels Regulation”) pursuant to CPR 74.4A, 74.9 and Practice Direction 74A paragraphs 4 and 6A. Turner J made the order on 14^th December 2016. The operative paragraph provided:

When he was served with the order the defendant applied to set it aside. That application was dismissed by Soole J on 29^th December 2016.

Before that the defendant had written to WordPress on 20^th December 2016 saying that he wanted to change some of the content of several specified blogs but did not want them removed. The blogs he listed included (vi) and (vii). They did not include (ii)-(v). He said he had lost the passwords to all the blog addresses he listed and asked for advice on how to access them. The advice given by WordPress included the suggestion that he provide them with the e-mail address on file for the account in respect of each of the separate blogs.

On 22^nd December 2016 the defendant wrote to WordPress to say that he had the e-mail addresses, but because some of his files were missing he could not identify which e-mail applied to each blog. He said he had the passwords to his e-mail accounts and invited WordPress to e-mail the correct password for each blog to his individual e-mail accounts. There was further e-mail correspondence with WordPress along the same lines.

On 24^th December 2016 the defendant wrote to WordPress listing the e-mail accounts he could locate, explaining that the sheet of paper “with correspondence to the blogs” had gone missing. He said again he did not want his blog to be deleted, “I just want to amend the editorial content to comply with the court order”.

On 26^th January 2017 the claimant’s solicitors issued an application for the defendant’s committal for breach of the order to withdraw the web pages at the seven URL addresses. In the supporting affidavit it was said that those at (i)-(v) had been modified but still remained offensive. Those at (vi)-(vii) remained unchanged.

The application was first listed on 15^th February 2017 before William Davis J. The defendant was unrepresented. He arrived at court with a large volume of documents. The matter was adjourned for him to serve a witness statement in accordance with the Civil Procedure Rules, and listed for hearing on 28^th March 2017.

The gist of what the defendant was asserting, in the witness statements and documents he served, was that he could not comply with the order in respect of blogs (vi) and (vii) because he could not access them. He was saying that he had modified the blogs at (i), (ii), (iii) and (v) so as to comply with the court order.

The claimant’s solicitors instructed an expert witness, Mr Jason Coyne, to give his opinion on the technical issues and on the question of whether the defendant was truly unable to access the blogs at (vi) and (vii).

The committal application came on for hearing before Turner J on 28^th March 2017. The defendant was still unrepresented. There is no transcript of that hearing, and there is some dispute as to precisely what was said. In essence, however, the defendant explained to the judge that he was unable to access the blogs at (vi) and (vii) because he did not have the relevant passwords and/or e-mail addresses. He told the judge that he had modified the blog at (i) and everything that was on it was true. According to the recollection of the claimant’s solicitor Mr Khindria (who gave evidence before me) the defendant was very contrite. He said he did not want to be offensive. He was prepared to change the blog to take out offensive material. The claimant’s IT expert, Mr Coyne, was present at court. The judge suggested that Mr Coyne and the defendant sit down together with a view to accessing the blogs at (vi) and (vii), with Mr Coyne’s technical assistance. An hour or two was spent in that endeavour, to no avail. The outcome of the hearing was that the application was adjourned, without a fixed date, but with further orders made in relation to each of the seven blogs.

The relevant provisions of the Second Order (with the URL addresses abbreviated) were as follows:

The application was reserved to Mr Justice Turner. Costs were reserved. There was no penal notice on this order. It took several weeks for the final form of the order to be approved. The date of the sealed order was 24^th April 2017.

Pausing there to take stock and identify the live issues in the application before me, the position is as follows.

In respect of URL addresses (vi) and (vii):

In relation to the URL addresses (ii)-(v) in the First Order it is common ground that on or about 31^st March 2017, in accordance with paragraph 4 of the Second Order, the Defendant did succeed in procuring the deactivation of those “web blogs”. They remain disabled.

The other main area of contention relates to the web blog at (i). Paragraph 5 of the Second Order required that the defendant provide “a written response to proposed excisions to the content of (v) on written request”. On 10^th April 2017 the claimant’s solicitors wrote to the defendant enclosing a copy of his then current “blog” at (i), indicating their proposed excisions by striking out in manuscript the words complained of. The defendant did respond in writing, the same day, to the proposed excisions. He simply said he was not prepared to make any further change. His case is that he is not in breach of paragraph 5 because he did provide a written response, albeit not a response which satisfied the claimant. The claimant’s case is that paragraph 5 must be given a “purposive” construction, and that the defendant’s blanket refusal to accept any of the proposed excisions amounted to a breach of the Order.

Perhaps the most contentious, and certainly the most difficult issue is the continuing status, if any, of the original requirement in the First Order that the defendant “withdraw forthwith the webpage accessible at” the URL address (i). The defendant’s case is that the provisions of the Second Order in effect varied the terms of the First Order and supersede it, so that it can no longer be enforced. In other words, the sum total of the defendant’s remaining obligation in relation to web blog (i), after 28^th March 2017, was to comply with paragraph 5 of the Second Order by providing a written response to proposed excisions, and he has done so. Alternatively, and in any event, the defendant’s case is that by radically reducing and revising the content of the blog at (i), soon after the First Order was made, the defendant complied with the obligation to “withdraw forthwith the webpage accessible at” that URL address. At the time the order was made, that blog contained material running to 79 pages (when printed out). By the time of the claimant’s proposed excisions, the content of the blog had been reduced very substantially, to no more than 8 pages. As of 12^th April 2018, shortly before the hearing, that unexcised content remained unchanged.

The claimant’s case is that the requirement in the First Order to withdraw forthwith the webpage accessible at URL address (i) remains enforceable, and the defendant is still in breach of that requirement. The obligation was to withdraw the web page as a whole. Modification of the content of the web page is not sufficient. In any event, the subsequent versions, and the current version, still contain some of the offensive material which was included in the original version when the French order was made and the mandatory injunction to enforce it was granted by Turner J.

Because one of the principal issues is whether the defendant has used his “best efforts” to deactivate blogs (vi) and (vii) in accordance with paragraph 1 of the Second Order made on 28^th March 2017, it is necessary to set out the subsequent history in some detail.

On 31^st March 2017 the defendant took down permanently and thereby “deactivated” and “withdrew” the four webpages or blogs at URL addresses (ii)-(v).

On 3^rd April 2017 the defendant wrote to Mr Matthew Munnenweg, chief executive of WordPress, requesting the permanent deactivation of a number of his blogs, including (vi) and (vii), apparently those he had previously asked to be deactivated in his e-mail dated 20^th December 2016. He referred to a previous letter dated 7^th February 2017 in which he had made the same request. As the circumstances in which he found himself unable to access these blogs are highly contentious, it is appropriate to set out his account in each of those letters.

In the letter dated 7^th February 2017 he wrote:

In the letter dated 3^rd April 2017 he wrote:

In the letter dated 3^rd April 2017 the defendant explained his position in relation to URL (i):

On 3^rd April 2017 the defendant wrote to the claimant’s solicitors enclosing copies of the letters he had sent to WordPress. He formally authorised the claimant’s solicitors to instruct WordPress to delete the seven blogs referred to in his letters of 3^rd April, including (vi) and (vii). He wrote:

On 10^th April 2017 the claimant’s solicitors wrote to the defendant expressing concern at the content and tone of his letters dated 3^rd April 2017 to WordPress, certain passages of which (it was suggested) were not conducive to achieving the outcome sought by the order, and did not constitute “best efforts”. Rather, it was said, they might be counter-productive. In the passages in question the defendant had enquired of WordPress what the current position was with regard to the action taken in the French courts by the claimant and his brother against WordPress (in the form of the parent company Automattic Inc). He asked whether the delay in deactivating his blogs had anything to do with the pending litigation in Paris. There was indeed litigation pending. The Paris Court of Appeal had refused to entertain jurisdiction in relation to the claimant’s action against Automattic Inc, a U.S. corporation. That decision was appealed to the Cour de Cassation which finally gave judgment as recently as 6^th March 2018, upholding the decision to decline jurisdiction.

In the same letter of 10^th April 2017 the claimant’s solicitors sent to the defendant their proposed excisions from the web blog at URL address (i), with the request: “Please confirm that these items will be deleted”.

The content of the “blog” or “webpage” at URL (i), even without the proposed excisions, was now radically different from what it had been when the French court ordered its withdrawal, and when the First Order was made by Turner J. Previously it contained 79 pages (when printed out) densely packed with text and images covering a wide range of allegations against the claimant and his brother, and many others. The revised content, of which some limited excision was requested, was more in the nature of an announcement of the forthcoming appearance of the defendant’s unauthorised biography of the Barclay brothers, and an appeal for donations and for any further information of interest which readers might be able to provide. The content included a brief (and one-sided) summary of the history of the present proceedings. The parts which the claimant sought to excise included references to police investigations relating to persons connected to the Barclay brothers, in the Channel Islands and in England, with the suggestion that influence had been brought to bear to “shelve” those investigations.

The defendant’s immediate response to the request for excision, by letter to the claimant’s solicitor the same date, 10^th April 2017, was:

The defendant did, however, make the suggestion in the same letter that the claimant’s solicitors could construct a draft letter for him to send to WordPress and Automattic Inc, if they thought it might have more success than his own letters in achieving a result.

The claimant’s solicitors took up that offer. On 25^th April 2017 they forwarded a draft letter to the defendant, including the following passage, based solely on what the defendant was asserting rather than with any acceptance of its truth:

The letter was also copied to the IT expert, Mr Coyne. He had already communicated directly with WordPress, corresponding (as did the defendant) with someone giving the name “Sal P”, described as “Community Guardian”. In response to Mr Coyne’s enquiry whether WordPress could act on the court order directly, Sal P replied on 14^th April 2017:

Mr Coyne replied to Sal that the defendant had forgotten his user name and his e-mail address and, because he did not have access to his e-mail, he could not retrieve his activation URL. He requested that Sal release the e-mail address the defendant used to register for the account, which might allow him to recover his e-mail account from his service provider and apply for a password reset. The reply from WordPress, once again, was that a user’s e-mail address is considered to be private information and the policy is not to give out such information without a U.S. court order or subpoena.

On 15^th May 2017 the defendant wrote to the claimant’s solicitors suggesting that there needed to be a change of strategy to get the blogs removed, and that this was unlikely to happen whilst litigation was still pending between the Barclay brothers and Automattic Inc.

In view of the impasse, Mr Khindria wrote himself to WordPress on 25^th May 2017 in rather more forthright terms. He enclosed the letters the defendant had sent to WordPress dated 26^th April 2017 and 29^th December 2016, seeking confirmation that they had been received. He also enclosed the recent correspondence between WordPress and Mr Coyne. He wrote:

On 26^th May 2017 Sal P replied to the claimant’s solicitors, saying that WordPress had received and reviewed the correspondence they had been sent, but advising:

The reference to a DMCA notice relates to the U.S. Digital Millennium Copyright Act. The explanatory notes sent to the claimant’s solicitors by WordPress begin with the following summary:

Plainly the objective of the DMCA procedure is to protect and give a remedy to those whose copyright has been infringed by the inclusion of such material on someone else’s website. That was not the situation here.

On 21^st June 2017 the claimant’s solicitors wrote to the defendant making it clear that it was not their responsibility to help him comply with the order. However, to help him “from a technical perspective”, they suggested the possibility of serving a DMCA notice, as mentioned by Sal P in his e-mail of 26^th May 2017. They drew the defendant’s attention to an automated DMCA notice form provided by Automattic Inc on their website. The letter stressed that the claimant’s solicitors had no knowledge of American law and were not providing any advice, but:

With the letter the solicitors enclosed a copy of the notice downloaded from the website. Among the declarations that the applicant would have to make were the following:

On 26^th June 2017 the defendant responded to the suggestion of a DMCA notice saying that, at this point, it was “not an avenue I wish to go down”. He expressed the view that the suggestion had nothing to do with the removal of his blogs, because there had been no abuse of copyright. He was concerned that this was an attempt by the claimant to have him “blacklisted” by WordPress and any other blog host, to restrict him from publishing segments of his unauthorised biography of the Barclay brothers. Nevertheless, he had sent an e-mail to WordPress for further clarification of the DMCA notice and its implications.

That same day, 26^th June, he had indeed e-mailed WordPress, voicing his suspicions about the motives for the claimant’s suggestion of a DMCA notice, and seeking their advice. He repeated the request for the deactivation of URL addresses (vi) and (vii), asking that they make an exception in his case from their company policy. The response from Sal P at WordPress was that they were not in a position to give legal advice on the impact of a DMCA notice.

No further progress having been made, on 28^th September 2017 the claimant’s solicitors informed the defendant that, as he had not complied with the First Order and the Second Order, their instructions were to pursue the application for his committal to prison. They enquired about his availability for a hearing at the beginning of November 2017.

On 2^nd October 2017 the defendant responded to this letter, setting out at great length his complaints that the proposed committal application was oppressive. He asserted that he had acted with transparency throughout and co-operated fully with the claimant’s solicitors and Mr Coyne, to the best of his ability. A hearing date for 2^nd November 2017 was obtained.

In the meantime the defendant wrote to Google and to Yahoo on 3^rd October 2017 requesting that his blogs at (vi) and (vii) be removed from their search results.

On 1^st November 2017, the day before the committal application was listed for trial, there was a hearing before Turner J. The defendant was still seeking representation, and the documentation was incomplete. Directions were given. In particular there was a direction that the claimant should file and serve a consolidated committal application, incorporating the alleged breaches of both orders. The case was adjourned to the first convenient available date in 2018, with a time estimate of 2 days. Costs were reserved.

The consolidated committal application was issued on 13^th November 2017.

Meanwhile the defendant continued with his attempts to persuade Google and Yahoo to remove his blogs from their search engines. The response from Yahoo, dated 7^th November 2017, was that they were “unable to identify a compelling legal basis for removal” and had “therefore determined not to remove the relevant content” .

The defendant had more success with Google, following further correspondence with various departments of the company. On 21^st November 2017 Google e-mailed the defendant:

On 6^th January 2018 the defendant wrote again to Yahoo, informing them that Google had removed the blogs at (vi) and (vii) and asking again that Yahoo do the same. He also wrote in similar terms to Microsoft UK, requesting that the two blogs (vi) and (vii) be removed from the search engines Bing Search and MSN.

On 9^th January 2018 he wrote again to Sal P at WordPress, seeking further information about the French proceedings between the Barclay brothers and WordPress, because he believed it was affecting the potential removal of blogs (vi) and (vii).

On 29^th January 2018 the defendant received a reply from “Francis J” at WordPress requesting that the defendant sign a notarised declaration stating that the sites [(vi) and (vii)] belonged to him and that he would like them taken down.

On 5^th February 2018 the defendant wrote again to Sal P at WordPress, requesting the removal of the blogs (vi) and (vii).

On 7^th February 2018 the defendant received a reply from Yahoo (now Oath (EMEA) Limited):

On 12^th February 2018 the defendant wrote to Francis J at WordPress enclosing a sworn affidavit dated 12^th February 2018 confirming that he was the author of the two blogs (vi) and (vii), and confirming his request that Automattic Inc/WordPress take down the two blogs with immediate effect. The affidavit was sworn before a notary public in London, who charged £100 for the service.

On 24^th February 2017, having received no response, the defendant e-mailed Francis J at WordPress requesting deactivation of blogs (vi) and (vii) now that he had sent the notarised declaration as requested.

On 5^th March 2018 the committal application came on for hearing before Cheema-Grubb J. The defendant was still unrepresented, despite persistent attempts to secure pro bono representation. During the first day of the trial he obtained representation. The judge considered it was in the interests of justice to adjourn the matter to afford adequate preparation time. She gave further directions and re-listed the matter for hearing on 16^th April 2018. Costs were reserved.

On 6^th March 2018 the Cour de Cassation in Paris gave its decision on the appeal by the Barclay brothers against the refusal of the French courts to accept jurisdiction in their claim against Automattic Inc., upholding that decision.

On 19^th March 2018 the defendant received an e-mail from Sal P at WordPress:

On 22^nd March 2018 the defendant wrote to Sal P at WordPress protesting that he had not requested that the two blogs be set to “private”; he had requested they be deactivated completely. He repeated that request. He wrote in similar terms to the chief executive of Automattic Inc.

On 23^rd March 2018 Sal P from WordPress responded:

On 27^th March 2018 the defendant replied to that e-mail, again referring to the notarised declaration and emphasising that there was no doubt that he was the owner of the blogs.

For the hearing before me on 16^th to 18^th April 2018 the excessive voluminous documentation had been reduced to more manageable proportions. Cheema-Grubb J had directed that there be an agreed bundle. The former bundles containing all the documentation generated by these proceedings occupied eleven lever arch files, running to 2,900 pages. There was now a much reduced claimant’s bundle of three volumes (1,015 pages) and a defendant’s bundle in a single volume (485 pages). In accordance with Cheema-Grubb J’s directions, the defendant had served a witness statement. In the event, however, he did not give evidence. I shall return to this. There were skeleton arguments from Mr Patel QC dated 1^st March 2018, and from Mr Wong dated 15^th April 2018.

On behalf of the claimant, Mr Tony Khindria (of the claimant’s solicitors), gave evidence, confirming the contents of his various affidavits. He was cross-examined at some length on the history of the matter and on assertions made in his affidavits about the conduct of the defendant. Mr Jason Coyne, the IT expert, was called to confirm the contents of his report dated 14^th March 2017, and his witness statement dated 11^th August 2017. He was cross-examined about the current position in relation to URL addresses (vi) and (vii) and their accessibility to the public now that they have been put in “private view” mode.

The defendant elected not to give evidence. I warned him in appropriate terms that it would be open to the court to draw adverse inferences from his failure to give evidence. He had been fully advised by Mr Wong and indicated that he understood the implications of his decision.

I heard Mr Wong’s closing submissions on the afternoon of 17^th April. Overnight Mr Patel prepared and served written submissions. Next morning I gave Mr Wong the opportunity of addressing me further on the new points raised in those submissions. Mr Patel then developed his submissions in reply. Much of counsel’s submissions, on both sides, was directed at the sufficiency of the evidence to prove the alleged contempts. There were however, three discrete issues which were raised and upon which I need to rule:

It is convenient to consider these three issues first, before turning to more general legal principles and a detailed analysis of the allegations of contempt.

The claimant is seeking committal for breach of the Second Order, as well as for breach of the First Order. The Second Order has no penal notice. The Order was drafted by the claimant’s solicitors and/or counsel and approved by the judge. It is submitted on behalf of the claimant that the absence of a penal notice was merely an oversight.

CPR 81.9 provides as follows:

In Leicester City Council v Saracen Dyers Ltd [2002] EWHC 2068 (QB) the court doubted whether the absence of a penal notice could be regarded merely as a “procedural defect”. Pitchford J (as he then was) said:

However, the existence of such a discretion was recognised by Kenneth Parker J in Serious Organised Crime Agency v Hymans [2011] EWHC 3599 (QB). In that case the order which lacked a penal notice was one which varied a previous order properly endorsed with a penal notice, by adding further assets. Referring to the Leicester City Council case, Kenneth Parker J said, at [10] and [11]:

In the notes to CPR 81.9 in the White Book 2018 (at page 2307) there is reference to two further family cases, In re DAD [2015] EWHC 2655 (Fam) and In re L (A child) [2016] EWCA Civ 173, in both of which the court declined to waive the absence of a penal notice in a collection order which was sought to be enforced by committal. See also JSC BTA Bank v Pugachev [2016] EWHC 192 (Ch) at [31]-[40].

In the present case everyone proceeded on the basis that the alleged breaches of the Second Order could be enforced by committal, until Mr Wong very properly raised the point in his skeleton argument. Mr Patel submits that by directing on 1^st November 2017 that a consolidated committal application be served, Turner J was implicitly recognising that the Second Order could be enforced by committal. The defendant has never asserted that he did not appreciate that a breach of the Second Order, like a breach of the First Order, could be punished as a contempt of court with the ultimate sanction of imprisonment. Mr Wong submits, however, that it was all the more important that, as a litigant in person, the defendant should have been warned in appropriate terms by a penal notice of the consequences of breaching the Second Order. Mr Wong was unable to point to any specific prejudice.

Unlike the SOCA case, the Second Order here was not merely a technical extension of the terms of the First Order, and there is no evidence that the defendant was told in terms at the hearing on 28^th March 2017 (or subsequently) that he could be imprisoned for contempt of court by breaching the Second Order. Nevertheless, in my judgment he can have been under no illusion that the consequences of breaching the Second Order would be the same as the consequences of breaching the First Order. If I were required to decide the point, I would exercise the court’s discretion under PD 16.2 to waive the absence of a penal notice in the particular circumstances of this case.

When the hearing of the committal application before Cheema-Grubb J ended on 6^th March 2018 with the matter being adjourned, there was a direction that the defendant should file and serve additional witness statements and relevant exhibits for use at trial in compliance with the Civil Procedure Rules 1998 by 4pm on 4^th April 2018. The defendant complied with that direction. However, the mere filing and service of a witness statement does not in itself make the witness statement admissible.

CPR 32.5 provides:

The practical working of this rule was helpfully explained by Leggatt J in Blue v Ashley [2017] EWHC 1553 (Comm), albeit it in the context of when a witness statement is “put in evidence” for the purposes of CPR 32.12 (2) (c), which governs the supply of witness statements to the press (amongst others). At [14] Leggatt J said:

It is common ground that the only basis on which the defendant’s witness statement dated 3^rd April 2018 may be relied on as evidence in the trial before me is under the Civil Evidence Act 1995, as hearsay evidence. The basic provision, in s.1(1) of the Act, is that in civil proceedings evidence shall not be excluded on the ground that it is hearsay. However, in estimating the weight (if any) to be given to such hearsay evidence, the court is required by s. 4 of the Act to have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. In particular the court may have regard to whether it would have been reasonable and practicable for the maker of the original statement to be produced as a witness (here it plainly was), whether any person involved had any motive to conceal or misrepresent matters, and whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.

The defendant’s witness statement does little more than adduce a large number of documents, in chronological order helpfully, many of which were already exhibited to affidavits filed on behalf of the claimant. The same issue of weight attaches to letters and e-mails written by the defendant, whether exhibited to his own witness statement dated 3^rd April 2018 or exhibited to affidavits served on behalf of the claimant. To take the most obvious example, the assertion by the defendant in many of his letters to WordPress, and to the claimant’s solicitors, that he had lost the passwords and/or e-mails and could not therefore gain access to blogs (vi) and (vii) is not confirmed by evidence from the defendant in the witness box. I shall therefore have to make my own assessment of the weight which may be given to such assertions.

However, to the extent that the defendant’s witness statement dated 3^rd April 2018 merely produces e-mails and letters he sent to or received from WordPress, Google and the like, in the absence of any suspicion that they have been fraudulently created or doctored, the court is more likely to act upon them as genuine e-mail exchanges. In other words the fact of the e-mails having been sent or received is likely to be accepted, though not necessarily the truthfulness of any assertions by the defendant in the e-mails.

Mr Wong did not invite me to have regard to any other witness statement of the defendant which had previously been served, save for his witness statement dated 31^st October 2017 headed “My rejection of the DMCA Notice route”. That statement was already included in the eleven volumes of the bundles for the committal hearing before Cheema-Grubb J, at volume 9, page 2239. I propose to approach that witness statement in the same way as the defendant’s most recent witness statement dated 3^rd April 2018. To the extent that is necessary to have regard to it all, I shall exercise appropriate caution in assessing its weight, in accordance with s.4 of the 1995 Act.

It is common ground that it is open to the court to draw an adverse inference from the defendant’s failure to give oral evidence and subject himself to cross-examination. However, Mr Wong addressed me about the principles on which the court should act in these circumstances, and the restrictions which apply. These were helpfully identified by the Court of Appeal in Benham Ltd v Kythira Investments Ltd [2003] EWCA Civ 1794. The court there adopted the analysis by Brooke LJ in Wisniewski v Central Manchester Health Authority [1987] PIQR 324, [1998] Lloyds Rep Med 223: [at 25, 26]:

In Benham , in a passage on which Mr Wong particularly relies, Simon Brown LJ said at [29]:

On behalf of the claimant Mr Patel submits that there is a case to answer on all the allegations of contempt, it would have been reasonable for the defendant to give evidence, and the court may properly draw an adverse inference from his failure to do so.

I shall address the evidential significance, if any, of the defendant’s failure to give evidence when I analyse the evidence on each alleged breach. It is important to bear firmly in mind, of course, that in these proceedings the burden of proof remains on the claimant throughout and that the alleged breach must be proved to the criminal standard. As Mr Wong rightly submitted, each alleged breach must be examined separately in deciding what, if any, support for the claimant’s case is to be derived from the defendant’s failure to give evidence

In this committal application the focus has been on the proper interpretation of the terms of the order, in each case, which are said to have been breached, and upon the defendant’s ability or otherwise to comply with the order. Helpful guidance on these issues was given by Munby LJ in L-W (Children) (Contact Order; Committal), Re CPL v CH-W [2010] EWCA Civ 1253:

With that guidance in mind, I turn to the allegations of contempt.

It is convenient first to consider the allegations of breach of the Second Order, from the hearing on 28^th March 2017. As already explained, there are breaches alleged of three paragraphs of that order.

In the schedule of breaches annexed to the consolidated application to commit, the matters relied upon as evidence of the defendant’s failure to use his “best efforts” are pleaded as follows:

I accept Mr Wong’s submission that the phrase “best efforts” means the same as “best endeavours”, and that “best endeavours” means the same as “all reasonable endeavours”: see Rhodri International Holdings Ltd v Huntsman International LLC [2007] EWHC 292 (Comm) at [33] and Jet2.Com Ltd v Blackpool Airport Ltd [2011] EWHC 1529 (Comm), at [48]. I accept that there is no absolute obligation to achieve the objective.

It is therefore for the claimant to prove, to the criminal standard, that the defendant has failed to use his best efforts to procure the deactivation of blogs (vi) and (vii). That means proving that the defendant has not been genuine in his efforts to achieve that objective and that there was a reasonable step he could and should have taken but failed to take.

Mr Wong submits that the defendant has plainly used his best efforts to procure the deactivation of blogs (vi) and (vii) in that:

Fundamental to “best efforts” is the issue of whether the defendant had genuinely lost or mislaid the relevant passwords/e-mail addresses for blogs (vi) and (vii), or whether that is a false explanation he has invented to excuse non-compliance with the order. The claimant’s main point is that the defendant has not given a consistent account. Mr Patel identified in his closing submissions, at my request, the documents he specifically relied upon in this regard. It is the sequence of e-mails sent by the defendant on 22^nd, 23^rd and 24^th December 2016. I have already set out the relevant content of those e-mails.

It is suggested that although the defendant started by suggesting he had lost the passwords to various blog addresses, including (vi) and (vii), he then said that he had the passwords to his e-mail accounts but could not identify which e-mail applied to which blog. The picture is certainly far from clear in his various accounts, although he set out the position more fully in his letter to the claimant’s solicitors dated 3^rd April 2017. It is submitted on behalf of the claimant that the suggestion that the file containing the addresses and passwords had gone missing is a convenient excuse. It does not explain how he was able to deactivate blogs (ii) to (v) in due course.

Some reliance is also placed on the slender suggestion in a newspaper article from the Birmingham Post in 1998 that, in relation to a magistrates’ court hearing in criminal proceedings brought against him by the Department of Trade and Industry, the defendant had given the excuse that his accounting records had been stolen from the boot of his car. In other words it is suggested that this is an excuse that he has used before. Even assuming the newspaper article is accurately reproduced (it appears to be text from someone else’s blog) I do not find it compelling, even as a piece of circumstantial evidence, in proving to the criminal standard that the defendant had lied nearly 20 years later about losing the relevant passwords and/or e-mail addresses.

On the other side of the coin, it makes no sense that the defendant would steadfastly deny having the relevant passwords and/or e-mails for these two blogs in order to avoid deactivating them, when he has deactivated blogs (ii)- (v). It makes no sense that he would have gone to such lengths to try to persuade WordPress to take down the blogs (vi) and (vii) if, all the time, he had at his disposal the means to do so himself.

In my judgment the circumstantial evidence overall does not compel the inference that he must have had the relevant passwords/e-mails all along. In these circumstances I draw no adverse inference from his failure to give evidence on oath.

I turn to the specific matters relied upon as evidence of his failure to use best efforts, listed at (a)-(d) above.

As to (a), it is not, in my judgment, a fair criticism to suggest that he failed to co-operate with Mr Coyne. That complaint seems to relate to the matters narrated in Mr Coyne’s witness statement, which is confined to the attempts they made together at court on 28^th March 2017 to access the relevant URL addresses and/or e-mail accounts. In the light of my conclusion that it is not proved that the defendant was deliberately withholding those details, there is no evidence that the defendant was deliberately seeking to frustrate Mr Coyne’s attempts to help him gain access to blogs (vi) and (vii). In the weeks following the hearing on 28^th March 2017 the defendant was in regular contact with Mr Coyne and they were plainly co-operating with each other in their efforts to persuade WordPress to take down blogs (vi) and (vii).

As to (b), the complaint is that although the defendant was asking WordPress to take down blogs (vi) and (vii), the defendant deliberately undermined the prospect of WordPress co-operating by drawing their attention to and asking them about the pending litigation between WordPress/Automattic Inc and the Barclay brothers in France. In his skeleton argument Mr Patel broadened this allegation to include the defendant’s letter of 10^th February 2017, as well as the letter of 3^rd April 2017. Whilst I accept that it was unnecessary for the defendant to have mentioned these matters, he undoubtedly made the clear and unequivocal request, time after time, that WordPress deactivate blogs (vi) and (vii). I note, for example, that it was the defendant’s suggestion that the claimant’s solicitors should draft a letter for him to sign and send to WordPress if they thought they could do better, and that was done.

As to (c) the complaint seems to be that in an e-mail to WordPress dated 1^st May 2017 the defendant asked that five websites be taken down which did not include (vi) and (vii). However, this seems to have been a follow up to the e-mail and letter he had sent to WordPress adopting the claimant’s solicitor’s draft. The addition to their draft in the letter he actually sent, an addition to which Mr Khindria took no exception, included an additional request to take down the five websites mentioned in his e-mail dated 1^st May. In that later email he was simply repeating that additional request. I also note that in the 1^st May e-mail he instructed WordPress to communicate directly either with himself or with Mr Coyne. In other words he was hardly making any secret of what he was doing.

As to (d), the DMCA notice procedure was, in my judgment, wholly inappropriate in the circumstances of this case. It was mentioned by WordPress as a route by which, in general terms, a URL address could be deactivated. It was understandable that Mr Khindria should latch onto this and draw the possibility to the defendant’s attention. But one only has to look at the form which the defendant would have had to complete to see that it was wholly unsuitable, and could not sensibly have been used. The defendant was not complaining that his own copyright had been infringed by the inclusion of material on his own blog. That would be nonsense. The declarations he would have been required to make, on pain of perjury, were simply inappropriate. Although the defendant went into much greater detail in his earlier witness statement dated 31^st October 2017 about the reasons for not going down the DMCA route, I am entirely satisfied on the documents themselves, exhibited on behalf of the claimant, that it was not a reasonable step which he could have been expected to take.

More generally, as circumstantial evidence in support of the claimant’s case that the defendant had no intention of using best efforts to procure the deactivation of (vi) and (vii), the claimant points to the undoubted hostile animus the defendant bears towards the Barclay brothers. Reference was made to correspondence in 2010 between the defendant and the solicitors then acting for the Barclay brothers, in which financial demands were made by the defendant in without prejudice letters which, it is suggested, may have amounted to blackmail. Reference was also made to the defendant’s practice of driving his car around and parking in the area of Berkeley Square in London, close to where members of the Barclay family live, his car having been decorated with slogans and insulting and offensive extracts from the material on his blogs.

In view of the narrow issues which arise in this committal application, namely the proper construction of the orders and the adequacy of the steps taken by the defendant to comply, I do not find any of this other evidence of assistance.

My conclusion, therefore, is that the claimant has failed to prove the allegation that the defendant did not use his best efforts to procure the deactivation of the web blogs at URL address (vi) and (vii).

The requirement under paragraph 2 of the Second Order was that the defendant provide to the claimant information, including e-mail addresses, passwords and the like or other forms of identification that may be used to procure deactivation of web blogs (vi) and (vii). I can deal with this allegation shortly. The particulars in the schedule of breaches refer only to one document, the defendant’s letter to the claimant’s solicitors dated 3^rd April 2017, in which he stated:

I have already indicated my finding that I cannot be sure that, contrary to what he asserts in this letter, the defendant did in fact have the relevant information but deliberately failed to provide it. Accordingly, the claimant has failed to prove this allegation of contempt.

Paragraph 5 of the order provided:

Again, I can deal with this allegation shortly. In my view it is misconceived. Properly construed, and whatever the wider intention may have been, the words of paragraph 5 of the order do no more than impose a requirement on the defendant to provide a written response to the claimant’s proposed excisions. He did provide a written response. He declined to make any excision. Mr Patel submitted that the order must be given a purposive construction. There was an obligation, he submits, to give a meaningful response, not simply to refuse out of hand to accept any of the proposed excisions. In cross-examination Mr Khindria rightly conceded that this paragraph of the order was open to more than one interpretation, although naturally he invited the court to construe the paragraph as requiring a positive response from the defendant.

I can well understand the thinking behind this paragraph of the order. It was, or may have seemed to be, a pragmatic compromise. The defendant had already modified the content of blog (i) very considerably, reducing its content from 79 pages (when printed out) to no more than 8 much sparser pages (when printed out). The defendant had indicated at the hearing on 28^th March 2017 a willingness not to be insulting in his web blog. There was a reasonable expectation on the part of the claimant’s solicitors that the defendant might be willing to compromise further by agreeing to at least some of the excisions they proposed.

However, whatever the thinking behind this paragraph of the order, it is open to no other construction than that which I have already set out. In truth, it was never a provision which was capable of enforcement by committal proceedings. I repeat the question I posed to Mr Patel in the course of his closing submissions: how much of the proposed excisions would the defendant have been obliged to accept so as not to put him in breach of the order? One has only to pose this question to see how impossible it would be to construe paragraph 5 so as to give it the effect for which the claimant contends. At the very highest the provision is ambiguous. An ambiguous term of an order cannot be enforced by committal.

It follows that the claimant has failed to prove a breach of paragraph 5 of the Second Order.

For the reasons I have explained, I find that none of the breaches of the Second Order has been proved. The question of waiving the procedural defect of no penal notice in the order does not, therefore, arise for final determination.

It is alleged that the defendant is in breach of the First Order because he failed to “withdraw forthwith the webpages accessible at the URL addresses: [(i) and (vi) and (vii)]”. In the schedule of breaches it is alleged that “web pages are still accessible at these URL addresses at the date of the consolidated application [13^th November 2017]”.

Mr Wong submits that the First Order is no longer capable of enforcement by committal. He submits that the terms of the First Order and the terms of the Second Order cannot co-exist. The second Order imposes materially different and inconsistent terms to the First Order. The Second Order addresses and provides new requirements for each of the seven web blogs. Mr Patel submits in response that the First Order and the Second Order are “symbiotic”, and that the Second Order was made to facilitate, and not replace or circumvent, the First Order. He points out that Turner J did not set aside or revise the First Order, or substitute the Second Order for the First Order. It was Turner J who required that a consolidated application be served, encompassing both the First Order and the Second Order.

It is necessary to consider separately the position in relation to URL addresses (vi) and (vii) on the one hand, and URL address (i) on the other. Different considerations apply.

Mr Wong submits that, as a matter of construction of paragraphs 1, 2, and 3 of the Second Order, it is clear that Turner J must have accepted that the defendant was unable to deactivate blogs (vi) and (vii), and consequently the requirement in the First Order to withdraw URLs (vi) and (vii) altogether was superseded.

I do not accept this argument as a matter of law. The purpose of paragraphs 1, 2 and 3 of the Second Order was to facilitate and encourage the defendant’s compliance with the overriding requirement of the First Order that he “withdraw” the web pages accessible at (vi) and (vii). However, as a matter of practicality, I am satisfied that the claimant has failed to prove a breach of the First Order in relation to URL addresses (vi) and (vii). Applying the principles explained in the authorities, there cannot be a breach of paragraph 1 in relation to (vi) and (vii) by failing to withdraw those web pages completely if it was not within the defendant’s power to do so. On the findings I have made already, it is still not within the defendant’s power to withdraw blogs (vi) and (vii) completely, or to put it more accurately, the claimant has failed to prove that it is within the defendant’s power to withdraw those blogs completely.

In any event, having achieved the “private setting” of those URL addresses (vi) and (vii), it is strongly arguable that the defendant has “withdrawn the web pages accessible at” those two addresses. The current position, if anyone were to access those addresses, is that the following information would appear:

Should anyone contact the defendant to ask permission to view the web pages at URL addresses (vi) or (vii), the defendant would, in my view, be in breach of the First Order, and in breach of the “best efforts” provision in paragraph 1 of the Second Order, if he were to grant such permission. Similarly, if he were to discover, even at this late stage, the missing passwords/e-mail addresses enabling him to deactivate blogs (vi) and (vii), he would be in breach of the First Order and paragraph 1 of the Second Order if he failed immediately to deactivate those blogs completely.

However, for the purpose of the present proceedings, I find that the claimant has failed to prove that the defendant is in breach of the First Order in relation to URL addresses (vi) and (vii).

The position in relation to URL address (i) is, in my view, much more difficult. Mr Wong essentially makes three submissions:

Mr Patel submits in response:

As to (a), I reject the argument that paragraph 5 of the Second Order renders enforcement of the First Order impossible. Paragraph 5 was an attempt to arrive at a compromise to avoid a decision having to be made as to whether the First Order had been breached by the continued presence of blog (i). It cannot have been the intention that, by refusing to accept any of the proposed excisions to blog (i), the defendant would be relieved from any liability and from the risk of committal for a continued breach of the First Order in relation to blog (i) as well as for any breach of the Second Order.

As to (b), the term “forthwith” is routinely and properly included in mandatory orders. CPR 81.4 (1) provides:

In my view, on the facts of this case at least, the term “forthwith” satisfies the requirement that an order enforceable by committal must fix the time within which the act is to be done. In a rather different context, it was held by Jackson J in SK v HD [2013] EWHC 796 (Fam) that this rule does not mean that a fixed calendar date for compliance must be set in every case. In any event, the defendant can have been in no doubt as to the urgency of the obligation to comply with the First Order, and well understood that obligation. There is no evidence from the defendant to suggest that he was misled in any way by the absence of a fixed date for compliance. Accordingly I reject the submission that the First Order was defective and, for that reason, unenforceable.

This is the nub of the matter. The construction of paragraph 1 of the First Order is a matter of law. The words must be given their natural meaning and effect. The requirement was to “withdraw forthwith the webpages accessible at the [seven] URL addresses”. The word “webpage” has a specific meaning. The definition in the Oxford English Dictionary is:

It follows, in my view, that the use of the plural “webpages” in paragraph 1 of the Order is not to be regarded as referring to a multiplicity of webpages at each individual accessible URL address. The plural was used simply because there were seven URL addresses listed, each with its own webpage.

This is important because it means there is a single “webpage” at URL address (i), irrespective of the extent of the hypertext visible in that document. When the material is printed out it may run to a single page or a hundred pages, but it is still one “webpage”. It follows that, in principle, the mere alteration of the content of the “webpage” does not amount to the “withdrawal” of the “webpage accessible at the URL address” in question. Plainly the changing or deletion of only a few words could not amount to “withdrawal”, otherwise it would be very easy to circumvent the order and frustrate its purpose.

However, at the opposite extreme, as Mr Coyne acknowledged in cross-examination, as a matter of practicality there need not be any correlation, at any given, time between the content of a webpage at a particular URL address and the title of the URL address itself. Thus, if the entire content of the webpage at URL address (i) were changed, so that (for example) it contained material exclusively relating to Premier League football, it would still be the “webpage accessible at” URL address (i). In those circumstances, however, it would be difficult to resist the conclusion that the webpage accessible at that address, at the time the order was made, had been “withdrawn”; in that example the content was now quite different and contained nothing of the original material.

I therefore accept that, in principle, there could be a “withdrawal” of the webpage accessible at URL address (i), without taking down or deactivating that address, if the modification was so substantial as to make the content wholly different from that which appeared on the webpage at time the order was made. In the end this must be a matter of fact and degree.

Before examining the content of the webpage as it was when the order was made (79 pages as printed out), as compared with the current content (the eight pages of which some excision was proposed by the claimant but not accepted by the defendant), it is appropriate and pertinent to consider the terms of the judgment of the French court, bearing in mind that the English order was made to enforce the order of the French court.

At page 2 of the French judgment (as translated) it is recited that “by summons by the plaintiff, the court is requested” to:

From this analysis it is important to note that what was originally sought by the claimant was prohibition of the dissemination of the pages accessible at the various URL addresses “in their current state”. That must surely mean the content of the webpage for each URL address at that point in time. Bearing this in mind when construing the words of the Fist Order, I conclude that the principal test in determining whether, as a question of fact and degree, the original content of blog (i) at the date of the First Order was sufficiently changed so as to amount to “withdrawal” of the “webpage accessible at URL address [i]” is whether any of the themes identified by the French Court are still extant in the eight pages which the defendant refused to excise further in accordance with the claimant’s proposals and, if so, whether that is sufficient to amount to a breach of the Order at all, and if so a breach justifying committal.

The proposed excisions are exhibited at page 1592-1599 (Vol 1 page 144-151). The full text of the webpage is shown, as at 10^th April 2017, the date of the requested excisions pursuant to the Second Order. The text a year later as at 12th April 2018, shortly before the hearing before me, is identical. Much of the unexcised text is not objected to by the claimant. Only limited passages are the subject of the proposed excisions. The passages that are not challenged by the claimant include the announcement of the forthcoming publication of the unauthorised biography of the Barclay brothers, and an appeal by the defendant for donations to a fund to help him “defend existing and future litigation”.

The first proposed excision is the defendant’s description of the “original content of this blog” which he said he had been “forced to remove”, which outlined what the defendant had allegedly been subjected to by way of “systematic harassment”, “systematic defamation”, “voyeurism”, “stalking and photographed”, and “systematic character assassination”. These words and phrases appear in large font against bullet points. The proposed first excision also referred to the failure by the Guernsey police and the Hertfordshire constabulary to instigate a proper investigation following his complaints in 2013 and 2014 of an alleged pattern of criminal behaviour to which he was being subjected. Taking these passages as a whole, this could be said to echo at least part of one of the “recurring themes” in the analysis of the offending articles in the French judgment, namely “surveillance put in place against him”. It does not repeat or touch on any other of those “recurring themes”.

The second proposed excision relates to a brief description of a “criminal investigation” instigated by the Guernsey police in November 2014 in which it is said that 54 residents of Sark had provided witness statements citing harassment, intimidation and defamation from the Sark Newsletter, an investigation which the defendant suggested had been “shelved”. This is not one of the “themes” identified in the French judgment, nor can I find any reference to this matter in the original 79 pages of the blog.

The third proposed excision (on page 1596) is of a reference to the defendant being hindered in complying with Turner J’s order by the litigation still ongoing in the French courts. This was not a theme identified in the French judgment, nor is it referred to, so far as I can see, in the 79 pages of the original blog. Indeed, it post-dates Turner J’s order.

None of the offensive and insulting words and expressions of which examples were given in the French judgment (at page 6), appear in the revised 8 page version. Indeed the nature and tone of the revised version are completely different from the original 79 pages, albeit still highly critical of the claimant.

My overall conclusion, looking at the matter in the round, is that there has been such a drastic revision of the original “webpage accessible at URL [i]” that it cannot be said now to contain any significant part of the original content. At most the theme of harassment of the defendant, in Sark and in Hertfordshire, is alluded to. Broadly speaking, however, the current form of the blog is little more than an advertisement for the forthcoming unauthorised biography, a request for donations in support of that work, and a summary of the present litigation and the steps the defendant has taken to comply with the order of Turner J.

In my judgment such a radical revision of the content of the blog is tantamount to withdrawal of the webpage accessible at URL address (i) at the date of Turner J’s First Order. To quote from the prohibition sought and granted in the French proceedings, the revised version cannot be regarded as “the continued dissemination in their current state of the pages accessible at the URL address”.

If my interpretation of the First Order is wrong, and there is technically a breach of the order by the continued presence of any webpage at URL (i) because that URL address should have been “taken down” or “deactivated” altogether, I would not regard the breach as sufficiently serious as to justify any penalty, financial or otherwise, and certainly not such as to justify a sentence of imprisonment, even a suspended sentence.

It follows that for all these reasons I dismiss the claimant’s consolidated application for committal of the defendant for breach of the First Order and the Second Order. None of the breaches alleged has been proved.

I should mention for completeness, as part of the narrative of events, that the claimant has returned to the French courts, twice now, to seek the liquidation of the daily penalty of €100 for the defendant’s continuing breach of the order to withdraw the pages accessible at the seven addresses. On 29^th June 2017, following a hearing on 1^st June 2017, the defendant was ordered to pay the liquidated sum of €10,000 (apparently for the period 29^th July 2016 to 9^th January 2017, according to Mr Khindria’s affidavit dated 20^th February 2018), together with €1,200 costs. On 23^rd January 2018, following a hearing on 19^th December 2017, the defendant was ordered to pay a further liquidated sum of €34,400, for the period from 10^th January 2017 to 9^th December 2017, together with €1,200 costs. In that affidavit Mr Khindria suggested that this shows that the French Court clearly considered that the defendant had not carried out the Order to the satisfaction of the court.

However, when I raised this point with Mr Patel during his closing submissions he specifically disavowed reliance on any argument that these decisions of the French court are somehow binding on me or should weigh with me for the purpose of the present committal proceedings. Mr Patel was plainly correct to do so, not least because we do not know precisely what evidence was placed before the French Court as to the state of any of the pages at the seven URL addresses at any given time since the original order was made by the French court on 15^th January 2016. I note that the defendant was not present or represented at either of these two subsequent hearings in the French court, and that (unlike these committal proceedings) the burden appears to have been on the defendant to “furnish evidence of the performance of the duty to do” that which he had been ordered to do.

I must deal, finally, with a further submission made by Mr Wong, namely that this application for committal was oppressive and amounted to an abuse of process. He submits that at most these were allegations of purely technical contempt which, on the face of the documentary evidence, had no real prospect of success. Mr Wong submitted that it is regrettable that the defendant had not secured legal representation sooner, to which he was entitled as of right, with public funding; had he been represented from the outset, application could and should have been made to strike out the committal application as an abuse.

Although I have dismissed the committal application, I do not consider that it is proper to describe it as oppressive or disproportionate, or an abuse. It must be remembered that when the committal application was commenced on 26^th January 2017 blogs (vi) and (vii) were still fully accessible. As Mr Wong accepted (on instructions), the content of those two blogs was (and is) very strong, and similar to blog (i) in its original state. They are similarly voluminous: 48 pages (when printed out) for (vi), and 121 pages for (vii). I have examined the material. Nor had the defendant, at that stage, taken any steps to deactivate blogs (ii) to (v). He did so only after the Second Order was made, on 28^th March 2017.

As to the continued pursuit of the committal application, the combined efforts of claimant and defendant had failed to secure the deactivation of (vi) and (vii), but there was a continuing obligation on the defendant, under the Second Order, to use his best efforts to achieve that. It was only well after the consolidated application was issued that there was a breakthrough in persuading WordPress to take effective action to restrict public access to the blogs, and in persuading Google to remove the material from their search engine. Moreover, if the defendant never had any intention of making any further deletions to blog (i), whatever excisions the claimant might propose, it is regrettable that he did not make that clear to Turner J at the hearing on 28^th March 2018 when the Second Order was made.

As discussed at the conclusion of the hearing on 18^th April 2018, I shall consider any ancillary applications arising from this judgment (e.g. costs) on the basis of written submissions, at least in the first instance, and hope that another hearing will not be necessary.