Sarayiah v Williams & Anor

These are Norwich Pharmacal proceedings which seem to have taken on a life of their own. The present application, dated 5 December 2017, is for the enforcement of the order made by Fraser J on 20 September 2017 and, nominally at least, for committal of the Respondents for no less than 42 supposed breaches (the last of which was added with the permission of Master Thornett on 27 October 2017). Whereas one normally thinks of Norwich Pharmacal relief as ancillary to another substantive claim, there is as yet in this instance no such primary claim. The Applicant has threatened defamation proceedings against the Respondents in respect of various publications, but so far has not even formulated any such claim even by way of letter before action. He has suggested that he will not be in a position to do so until the Respondents have fully complied with the September order. But meanwhile, despite expressing concerns about limitation on 20 September, he has allowed the 12 month limitation period relevant to the most significant publications, in November 2016, to slip by without making any claim.

There is another application before me dated 6 December 2017, but at the conclusion of the hearing on 17 January 2018 the Applicant asked me to adjourn it until the outcome of the committal application was known. That was, in part at least, because he was understandably feeling tired by that stage. The primary purpose of the second application was, under s.32A of the Limitation Act 1980 (as amended), to “disapply” or exclude the 12 month limitation period in respect of potential defamation claims, although it is quite clear from s.32A(4) that any such application should be made in the defamation proceedings themselves – not by way of a separate free-standing claim (or in Norwich Pharmacal proceedings).

The application of 6 December also seeks an order permitting the inspection of a number of original documents which have already been identified pursuant to the order of Fraser J.

The background of the dispute is as follows. The first Respondent (‘Mr Williams’) is the head “alumni relations” officer of the second Respondent (‘the University’) and had occasion in that capacity to communicate with the Applicant, who is an alumnus, in connection with complaints received about his behaviour. He attended various alumni events between the autumn of 2016 and the summer of 2017. The first relevant contact was through an email on 3 November 2016, when Mr Williams asked that he should not attend any further events because of such a complaint. On 22 November 2016, Mr Williams passed this information on to other alumni relations officers and asked that he be informed if anyone noticed that the Applicant was attempting to book for future events.

The Applicant failed to comply with Mr Williams’ request and a further email was sent on 13 June 2017, asking that he should not attend the event planned for the following day or any other alumni events. Moreover, he attended the 14 June event, despite the request, but Mr Williams acted as a “chaperone” until he left of his own accord. He also went to an event on 6 July 2017 but, on this occasion, Mr Williams was unaware of it. The Applicant then made a complaint about Mr Williams to the University, having taken the view that he was acting as “judge and jury”.

On 23 June, the Applicant made a subject access request under s.7 of the Data Protection Act 1998 (‘the SAR’), to gain access to all personal data held by the University on him from January 2016 onwards. He was seeking to identify any statements by Mr Williams that might be actionable by him, and he also wanted to identify the persons to whom Mr Williams had communicated any such statement. The University’s response was dated 1 August 2017 and it was confirmed by its data officer that he had been supplied, at that time, with “a copy of all personal data to which you are entitled under [the Act], as per your request”. The Applicant was not satisfied and sent what was described erroneously as a Part 18 request: at that time, and indeed until today, there have been no proceedings to which CPR Part 18 could apply.

What he was seeking was information for the purpose of commencing libel proceedings against Mr Williams and the University, who were characterised as “prospective defendants”. Mr Williams was said to have made “very serious allegations” which were described as “purely malicious and designed to cause me harm and distress”. No evidence has been forthcoming at any time to support that serious allegation, or to explain why Mr Williams should have been so motivated. Nevertheless, the University responded on 22 August, explaining that the earlier SAR response had included everything he had requested in so far as it was in its possession.

Next, on 7 September 2017, the Applicant made his application for a Norwich Pharmacal order, on the basis that it was necessary to enable him “to plead defamation proceedings against the Defendants”. He summarised his complaint, in effect, as being that the University was vicariously responsible for the malicious publication of defamatory allegations by Mr Williams to various of its employees. He required all relevant information and documents, and in particular the nature of the allegations made against him. It was necessary, he said, because hitherto the University had failed to comply with his legitimate requests (i.e. the SAR and the “Part 18 request”).

The documents previously disclosed to him contained the following allegations made about him by Mr Williams or other employees:

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“Following a complaint from a female member of staff … Mr Sarayiah has been asked to no longer attend University events” (Mr Williams’ email of 3 November 2016 to internal University members of staff).

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“… I am still intending to act on your recommendation that someone should attend the event to chaperone Mr Sarayiah in case he does turn up, and that it would not be acceptable for the chaperone to be a female member of staff” ( likewise).

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“I have spoken to [the University Secretary] and she is in agreement with the view that the University has an obligation to both staff and guest (sic) at Durham University functions/events to ensure that it is a safe environment … I agree that in terms of chaperoning it would not be possible to do so at every event – but in terms of mitigation the University would at least be seen to be taking appropriate reasonable action where it becomes aware of inappropriate alumni” (Email from University lawyer of 15 June 2017 to internal members of University staff, including Mr Williams).

I pause here to note that each of these statements is capable of being rendered in a form which could be pleaded in defamation proceedings as words complained of. Thus, if he wished to commence proceedings, he was in a position to do so before the expiry of the limitation period. The circumstances clearly raise, however, the possibility of a formidable defence of qualified privilege at common law.

Following a hearing on 20 September 2017, Fraser J granted an order with which the Respondents plainly had to comply to the best of their ability. There was no formal judgment, but I have seen a transcript of what transpired on that occasion, which indicates the underlying reasoning of the Judge. In certain respects, the order as sealed differed significantly from the draft which the Applicant had placed before the court.

The most significant aspect of the sealed order is that contained in paragraph 1(3). The Applicant describes it as being “at the core” of the order. It is concerned with the question of whether the University should reveal the identities of the seven women (all members of staff) who had complained about the Applicant’s behaviour or manner towards them. He contends that the order requires that they be revealed and he alleges that the University is in contempt because it has not yet done so. I regard this as a very serious matter and it is important to be clear as to exactly what happened and how the sealed order came to be drawn in the form it now takes. The Defendants (i.e. Mr Williams and the University) were to produce to the Applicant inter alia:

“The exact wording of any complaints made against the Claimant by any other person [and their identity].”

The wording thus appeared still to be in draft form and inchoate – at least in regard to paragraph 1(3). It would have been sensible to approach Fraser J through his clerk with a view to clarification (if necessary reminding him of what had taken place at the hearing by providing the transcript).

To my mind, the presence of the square brackets inevitably leads to ambiguity, as would be the case in any judgment or order. Are the identities to be revealed or not? Since the order is ambiguous as it stands, it is impossible for the Applicant to discharge the burden of proving a breach to the criminal standard: see e.g. the well known words of Jenkins J (as he then was) in Redwing Ltd v Redwing Forest Products Ltd [1947] 64 RPC 67, at 71 (“… a Defendant cannot be committed for contempt on the ground that upon one of two possible constructions of an undertaking being given he has broken that undertaking. For the purpose of relief of this character I think the undertaking must be clear and the breach must be clear beyond all question”.) See too Att-Gen v Greater Manchester Newspapers Ltd (2001) 145 SJLB 279 (Butler-Sloss P). It is a matter of elementary principle, which obviously applies to orders as well as undertakings. That is enough to dispose of the present committal application so far as that paragraph is concerned.

Ordinarily, an observer would not be able to tell if the judge or associate had left the brackets in by mistake, or whether the words should have been omitted. But here, the available materials enable us to understand fairly clearly what happened.

There is no doubt from the original draft that the Applicant was seeking an order which would have expressly obliged the University and Mr Williams to go behind the confidentiality of the female complainants and to reveal their identities to the very man they were complaining about, and who had apparently made them feel uncomfortable. From the transcript, however, it is clear that the Judge (as one would expect) saw no necessity for their identities to be revealed at that stage and their Article 8 rights correspondingly prejudiced. He told the Applicant in no uncertain terms that in relation to the relevant paragraph of the order “… you are going to have to do some deleting: ‘The exact wording of the complaints made against the Claimant by any other person’ FULL STOP”. In other words, the sub-paragraph was to end at that point and the reference to identities was to be omitted.

It is to be noted also that the Judge added to the order that “the documents identified in paras 1 to 4 of this order are to be provided in unredacted form save only for any redactions advised on proper grounds by a properly appointed solicitor acting on behalf of the second Defendant in accordance with the second recital of this order”. That proviso will become more directly relevant later, but it is all part of a pattern. The Judge was clearly anxious to safeguard the interests of the University, since it was not legally represented at the hearing, and he was concerned not to impose unnecessary or extravagant burdens. Yet inevitably that form of wording introduced a further element of uncertainty and corresponding difficulty in establishing a breach of the order. (I take note also in this context of the judgment of Jay J on 12 October 2017, at paragraph [18], to the effect that not much turned on the disclosure of complainants’ identities, “because there could be redactions to reflect privacy and Article 8 rights … in any event”.)

What happened next is important. The Applicant sent a draft of the order to the Associate for sealing, but contrary to the Judge’s instruction he failed to delete the reference to “identities”. That is how this word came to be in the sealed order (albeit in square brackets). What is more, the Applicant did this without reference to the Respondents. He says that the Judge must be taken to have known what he was doing and, accordingly, that I should assume that he must have totally changed his mind on this fundamental matter.

Where professional advocates are involved in a case, they will normally be trusted to draw up the order in good faith and to reflect the Judge’s intentions as expressed. The system usually works well, but unfortunately there were no professional advocates involved at that stage and the Applicant appears to have taken advantage of the situation by slipping back into the order what he had quite expressly been told by the Judge to delete. That is not explicable on the basis of an innocent mistake by a litigant in person. He is highly intelligent and appears to have a good grasp of legal principles and procedure (he sent me a list of over 50 contempt cases that he had researched for the hearing). He was obviously trying to manipulate the proceedings to his advantage and thought that he could control the process. There is simply no excuse for going behind the Respondents’ backs when presenting the draft order.

This is a serious matter. Not only has the Applicant inserted into the draft order a requirement for the identities of the seven women to be revealed, in deliberate defiance of the Judge’s instruction, but he has also then used it as the basis for launching committal proceedings against the Respondents. It is a ploy that will certainly not succeed. His tactics need to be firmly discouraged. If my understanding of what took place is correct, it would suggest a prima facie case of criminal contempt on the part of this Applicant.

Despite this reprehensible behaviour, the Applicant wishes to be indulged over his failure to effect personal service of the order or to include a penal notice.

It is thus ironic that the Applicant should have accused all the lawyers subsequently engaged in this case of dishonesty and of deliberately seeking to mislead the court. He also adopted an aggressive and bullying manner in court and, until I ordered him to sit down, he repeatedly interrupted Miss Page’s submissions (for which he later apologised). He told me that I should ignore the evidence of the Respondents altogether because it was not in the form of affidavits. He objected to my looking at any of it (although much of it had been pre-read). What is more, he submitted that I am bound to draw an adverse inference of dishonesty from the very fact that they have not produced affidavits. The true position, of course, is that it will always depend on the facts of the particular case: there is no rule to that effect. I certainly had no credible evidence before me to support any such conclusion (i.e. that the Respondents and their solicitors calculated that they could escape censure for dishonesty by producing witness statements instead of affidavits). It is utterly fanciful. (An affidavit has subsequently been filed.)

Other provisions of the 20 September order required the Respondents to provide details of any allegations made about the Applicant by Mr Williams, and to whom he had made them, and also details of any such allegations made to the Respondents by any third party. All relevant documents in their possession were to be produced, subject to any issue of privilege. As I have already noted, the Judge was concerned by the fact that the Respondents were not legally represented before him and therefore made provision for them to redact documents if so advised by an independent solicitor.

At all events, the Respondents applied unsuccessfully to Jay J on 12 October 2017 to have the order set aside and then, on 20 October, purported to comply with it by providing hard copies of a number of documents.

There was a document setting out oral statements from seven employees of the University to the effect that the Applicant had behaved inappropriately towards them at various alumni events. Their identities were withheld by means of redaction. There was also a document containing the oral statement by Mr Williams at the 22 November staff meeting, when he summarised the allegations made to him by the seven complainants.

A copy was provided of an email dated 7 July 2017 in which one member of staff recorded in writing her complaint about the Applicant for two of her senior colleagues. In addition, the Applicant was supplied with further copies of documents he had already received (pursuant to the SAR), but with fewer redactions.

Immediately, upon receipt of these documents, the Applicant complained to the Respondents’ solicitors that they and their clients were in contempt for having withheld the identities of the seven women and, moreover, that the document setting out their oral complaints was malicious and had been conjured up in an attempt to prevent him from suing the Respondents. It is perhaps worth noting at this stage that the Applicant had already been warned by Jay J, on 12 October, that his suggestions of malice appeared to be without foundation (and that he would thus face formidable difficulties in pursuing any claim in defamation).

Quite apart from the ambiguity of the sealed copy of the 20 September order, to which I have already referred, the Respondents and their advisers had taken the view that to reveal the identities of the women at that stage would be disproportionate and premature, since a decision could be made later, if defamation proceedings were indeed ever launched, as to whether they needed to be disclosed in the light of the issues as by then pleaded. If any such claim were to be brought against these Respondents, as so far contemplated, it is by no means obvious how the identities of the complainants could be necessary. Even if the Applicant decided to rely on the publications by the women to Mr Williams, the University would accept that it was vicariously responsible for their acts (all of them being employees). Again, it is not clear, at this stage, why their identities would be material even in those circumstances. It would depend on how the case was pleaded.

As Jay J pointed out, the order has been so drafted that redactions could be made on advice. In light of this element of flexibility, it would be difficult to demonstrate that any redaction, including in relation to the names of the women concerned, constitutes a clear breach of the order.

I must now turn to the issues raised by the application dated 5 December 2017. The first matter is the Applicant’s request to be excused retrospectively his failure to comply with the requirements of CPR Part 81 in respect of personal service of the order and the attachment of a penal notice. He relies in part on the fact that Master Thornett, on 27 October, allowed him to list the committal application despite the absence of a penal notice, and also upon the agreement of the solicitors to accept service of the application on behalf of their clients and not to insist upon personal service.

It is difficult to see why he should be indulged at all in the light of his improper manipulation in the process of having the order of 20 September drawn up. (Indeed, an argument could have been made for striking out the application as an abuse of process.) But the test is whether or not injustice has been caused to the Respondents by his omissions: see e.g. Nicholls v Nicholls [1997] 1 WLR 314, at 326 (Lord Woolf MR); Jolly v Hull [2002] 2 FLR , 69, at 75C (Judge LJ); Masri v Consolidated Contractors International Co SAL [2010] EWHC 2458 (Comm), at [40] (Christopher Clarke J). In view of the fact that solicitors were instructed by the Respondents within three days of the 20 September order being made, when the implications would have been fully explained to them, it seems to me unlikely that these omissions would have led to any significant injustice. I therefore will allow him to proceed despite his omissions.

That brings me to the substantive application in relation the alleged breaches of the order. Although they are now identified as 42 separate breaches, it is unnecessary for me to go through them individually, since they can be conveniently grouped under certain categories. I should add that I have to be satisfied of any alleged breach to the criminal standard: see e.g. Re Bramblevale Ltd [1970] Ch 128; Dean v Dean [1987] 1 FLR 517. That is a well established principle, and I reject the Applicant’s submission that, because he seeks the imposition of fines rather than imprisonment, I should apply the civil standard of proof only. That was based on a misunderstanding of the judgment of Bodey J in Mubarak v Mubarik (No 2) [2007] 1 WLR 271, 286, at [69]-[71]: see also Mann v Mann [2014] EWCA Civ 1674.

The most important category, and the main reason for this application, concerns the Applicant’s wish to identify the seven female complainants. I have already addressed this category by reference to the principle that ambiguous orders cannot be enforced by process of contempt. Even if one were permitted to try to resolve the ambiguity, examination of the transcript would lead to the conclusion that Fraser J had intended to omit the words in square brackets. That is what he expressly directed. Furthermore, as Jay J observed, at paragraphs [18] and [33], it was perfectly legitimate for the identities to be withheld on Article 8 grounds in any event.

Accordingly, the Applicant has failed to prove that the Respondents are in breach by not revealing the identities (Grounds 2, 4, 6, 8, 9, 18, 19, 28, 32, 42).

A further complaint of the Applicant is that he has not been provided with the precise words used about his conduct, to which the Respondents’ answer is that he has been supplied with Mr Williams’ best recollection and that is, on any reasonable interpretation of the order, the extent of his entitlement. I see no reason to go behind that assurance or to believe that Mr Williams was not telling the truth (Grounds 1, 3, 5, 10, 11, 17, 20, 21, 27, 29, 33, 35).

Another category of criticisms relates to the claim that the Respondents have failed to supply the form which the allegations took. But the Respondents take their stand on what has already been provided. Oral statements have been so identified and, in the case of written statements, the relevant documents have been supplied (Grounds 7, 14, 24, 31).

It is said also that they have failed to provide details of what Mr Williams said by way of repeating the allegations and to whom he did so. Their case is that the only non-privileged communication by Mr Williams of such complaints was at the meeting of 22 November 2016 and that the details have been supplied. At this stage, I cannot go behind that case (Grounds 12, 13, 15, 16, 22, 23, 25, 26, 34).

The Applicant complains that no details have been given as to a conversation between Mr Williams and Ms Tess Mantzoros, but she is an in house lawyer and there is a claim of privilege. I cannot go behind that (Ground 36).

There was a conversation in August 2017 between Mr Williams and Individual G, but no specific date is provided. The Respondents’ case is that Mr Williams cannot be more precise and the order does not require more than his best recollection. There is no reason to reject that at this stage (Ground 30).

The order required the Respondents to supply electronic scanned copies of documents produced (paragraph 2). This they have so far failed to do. No doubt they should have done so, but their excuse is that the Applicant had earlier (on 6 October 2017) made it clear that he did not want to accept service of documents by email (“I told you on the phone that I do not accept service by email and if you had asked me prior I would have told you”). There was no communication from the Applicant reminding them of this part of the order, and making it clear that he now did want to receive the documents electronically despite his previous stance. After the applications of 5 and 6 December were received, an offer was made to supply such copies, but there was no reply. In those circumstances, I regard this as at most a technical breach, which does not merit any penalty or sanction (Ground 37). Of itself, it certainly would not have merited an application for committal.

There is a complaint about the non-disclosure of documents relating to an unrelated complaint about Mr Williams from a third party. It is said to have no bearing on the present dispute and therefore there is no obligation to provide such documents. As usual, it would not be appropriate to go behind that claim and there is no evidence to justify so doing (Ground 39).

Individual F sent an email on 7 July 2017 to two senior colleagues about the Applicant’s behaviour at an alumni event and later discussed it with one of them (Andrew Harston). The complaint is now made that there are other documents about this which have not been disclosed, but the Respondents say that there is nothing more. Again, I must take that at face value in the absence of any evidence to the contrary (Ground 40).

There is a complaint of unauthorised redactions, but as the Respondents’ solicitors explained in a letter of 20 October 2017, redactions were made to a small number of documents on grounds of privilege, and others were redacted on the basis that their content was irrelevant. It would not be right for me to reject those explanations (Ground 38).

A distinct complaint relates to supposed lateness of compliance, to which the response is that they complied by 20 October in accordance with the extension granted by Jay J on 12 October (Ground 41).

In the result, I dismiss the committal application.