BRIAN DUDLEY v MICHAEL PHILLIPS

This is a trial in relation to financial remedies and additional relief in a defamation and data protection/GDPR claim arising out of internet publications and postings which are reproduced in the annexe to this judgment. The claim was issued on 16 June 2020. In broad outline, the Claimant, Brian Dudley (C) complains that the Defendant, Michael Phillips (D) has falsely accused him of fraud, financial incompetence and various forms of wrongdoing of a sexual nature.

D acts in person and participated in the trial before me remotely. This was following my directions on 8 April 2022 that he be permitted to appear remotely at a CVP “hybrid” hearing given his ongoing medical conditions. I heard oral evidence from C who was cross-examined by D. D did not file any evidence in opposition (provision having been made in earlier orders for him so to do) but presented his arguments clearly and concisely. At the conclusion of the hearing, I stated that I would grant the relief sought by C, with my reasons to follow.

Before turning to the facts in more detail, I need to describe the procedural history. By the Order of Master Dagnall dated 3 October 2020, C obtained a default judgment on his claims. The Master’s Order was made pursuant to CPR 12.1, 12.3(1) and 12.4(2), following D’s failure to file an Acknowledgement of Service and to file a Defence. On 5 February 2021, in response to what appeared to be application by D to set aside this default judgment, Master Thornett directed that: the 3 October 2020 Order be stayed; that D was to file and serve an application notice by 26 February 2021; that D was then to have an opportunity to file evidence in response to any filed by C; and finally, that his draft Defence be filed by 23 April 2021.

D did not comply with that Order. Instead, he wrote to the Court complaining that he did not know what to do. In a detailed Order made by Master Dagnall of his own motion on 16 March 2021, the Master went out of his way to set out for D’s benefit how he should respond to the claim (and support his setting-aside application) by way of a draft Defence. He particularised how D should in stages respond to the Particulars of Claim. I note that the Master kindly even offered to list a short hearing to provide further procedural assistance to D. This was not taken up. Master Dagnall’s order made provision for C to apply, in the event of further default, for an unless order. D did not comply with Master Dagnall’s Order and so, in response to an application by C, on 25 June 2021 Master Thornett made an unless order, that unless D complied with the requirements of the earlier orders he would be debarred from defending the claim. D did not comply with that Order and was, accordingly, debarred.

Although D did not issue an application to set aside that Order or for relief from sanctions I allowed D (at Counsel for C’s invitation at the start of the trial) to rely upon an unissued application of 24 September 2021 as, in substance, an application to set aside the original default judgment. Counsel for C very properly identified that such an application (though not issued) was in the papers before me and acting with commendable fairness to D as a litigant in person submitted that it should be addressed. Having heard argument, I was not satisfied that, for the purposes of CPR 13.3(1)(a), there was anything put before me to show D had a real prospect of successfully defending the claim. I noted in particular the earlier procedural orders which had provided (with constructive guidance from the Master) an opportunity for D to set out a draft Defence and the substantial delays. To this day, D has not put forward any witness statement or draft pleading (or a lay person’s equivalent) but merely orally asserted before me forms of a vague partial truth defence and what appeared to be geographical jurisdictional objections. I accept that D has had to face challenging medical conditions over the past 2 years but I did not consider his failures to comply with earlier orders were excusable. I refused to set aside the default judgment and the trial proceeded.

C is an investment and wealth management expert, who runs his own business, Premier Global Consulting Limited. He was born in the UK and has lived and worked here. D also has extensive professional experience in the Philippines and Singapore, where he now lives, having relocated from the UK in late 2021.

D is a former employee of PI Global Inc. D was dismissed from his role in that company, managing clients in the Philippines and Thailand, in 2015. C was a director of PI Global Inc while he lived in the Philippines and recruited D to work at PI Global. D has been resident in the UK since 2016 and now lives in Bournemouth.

C’s claim comprises:

The Reviews make defamatory allegations about C, including of professional incompetence, dishonesty and fraud. The Wordpress Site, before its removal on 8 January 2021 (at C’s instigation) contained C’s personal data in the form of various damaging and unpleasant allegations. I can summarise these by saying that they included statements that he had sold fraudulent Ponzi scheme investments, and allegations concerning alleged infidelity and sexual activity with sex workers. C first became aware that D was making these allegations online in 2016, when he was alerted to the Wordpress Site by a client.

C seeks: (a) damages for libel, and compensation for breach of his rights under the Data Protection Act 1998 (DPA) and the General Data Protection Regulation (GDPR); (b) an injunction; and (c) an order under section 13 of the Defamation Act 2013 as regards ‘pissedconsumer.com’. C had a pleaded claim for an order under section 12 of the 2013 Act but it was not advanced at trial.

In terms of his opposition to these orders (and without any supporting evidence), the nature of D’s submissions before me was to argue (and to suggest in cross-examination of C) in effect a form of unevidenced partial truth/general wrongdoing defence against C on the issues on liability. Aside from the fact that default judgment has already been entered, D’s case was not supported by any witness statement and had not been the subject of any forewarning.

I note that Master Thornett had given both parties permission, by his Order of 21 February 2022, to serve evidence for the remedies hearing before me. D failed to take that opportunity and I was not willing to allow him to make wide and unparticularised allegations of wrongdoing against C as part of his cross-examination with no evidential basis. I asked him on several occasions to seek to focus his cross-examination on C’s evidence as to losses set out in his written evidence. I do not accept it was open to D to advance unparticularised, unevidenced, and unpleaded allegations of wrongdoing as a form of mitigation of damage. I reach that conclusion both as a matter of law and of case management, including ensuring fairness to C.

C was an honest and straightforward witness. I accept C’s oral and written evidence as to the effect, both personal and professional, of the publications upon him. In particular, it is clear to me on that evidence that the publications were read in England and Wales by those who might consider using his services or employing him in the financial services field. The most basic internet due diligence undertaken by a potential client or employer would reveal serious accusations of fraud and related wrongdoing being made against C. It is not a surprise that such persons would have real reluctance in dealing with him, as C said in his evidence. I will return to the more specific evidence of loss below but the negative effects on his reputation are in my judgment obvious.

CPR r 12.12(1) provides that “where the claimant makes an application for a default judgment, the court shall give such judgment as the claims entitled to on the statement of case”. The Particulars of Claim are in themselves the basis on which the Court identifies the nature and scope of a defendant’s liability to the claimant in the default judgment situation. I was taken to the helpful guidance in Sloutsker v Romanova [2015] EWHC 2053 (QB) at [84] in respect of defamation claims. The same principles must apply when a data protection claim (particularly one based on processing inaccurate personal data) is in issue.

It is established that libel damages have a threefold purpose, namely: (1) to compensate for distress and hurt feelings; (2) to compensate for actual injury to reputation which has been proved or might reasonably be inferred; and (3) to serve as an outward and visible sign of vindication. The relevant principles to be applied in assessing damages in a defamation claim were described in some detail in Counsel for C’s succinct oral and written submissions by reference to the main cases including Barron v Vines [2016] EWHC 1226 (QB) at [20]-[21]. These principles are not controversial. I was also taken to defamation awards in a range of what were argued to be broadly similar cases. I will not set those cases out. They are of indirect assistance and every case must be decided on its own facts.

The right to recover financial relief (or ‘compensation’) for breaches of the Data Protection Act 1998 is contained in section 13 of that Act. I was referred to the analysis of that provision in Aven v Orbis Business Intelligence[2020] EWHC 1812 (QB), at [193]-[197]. The following propositions are relevant to the present case:

The equivalent right in the GDPR is contained in Article 82, which provides that:

“Any person who has suffered material or non-material damage as a result of an infringement of this regulation shall have the right to receive compensation form the controller or process for the damage suffered.”

In terms of timing, C’s claim straddles both data protection regimes. I was not referred to any authority on the approach to the assessment of damages under Article 82 of the GDPR but where damages for harm to reputation are concerned, I see no reason of principle as to why the approach should be different to that identified in the Aven case. Reputational harm is recoverable within that provision.

The Court’s task in the present case is made more straightforward by the fact C has limited the value of all his claims to £10,000.00. He does not seek to amend, and does not invite the Court to award any sum in damages greater than that. C’s Counsel was right to submit to me that the quantum of damages in this claim would exceed that amount. I will however consider matters in a little more detail, but bearing in mind the need to approach matters in proportionate way. In the present type of case (multiple publications), it is more straightforward to consider the factors relevant to each publication, before arriving at a global award. Counsel for C referred by analogy to the approach in Blackledge v Persons Unknown[2021] EWHC 1994 (QB) at [34]-[35]). In relation to the data protection claim, C has limited his submissions to the claim for damages for harm to reputation and distress which arises from publication of inaccurate personal data via the Wordpress Site. A combined award is being sought in respect of the libel and data protection claims (both relied upon as regards damage to reputation/distress only) and I am not asked to arrive at any division. Although, it does not arise in this case, in another context the differing limitation periods may demand a more granular approach to each claim.

I will consider the damages/compensation issues under the broad heads of gravity and extent, as I set below.

Where the assessment of damages in libel follows default judgment, the award will be based on C’s pleaded meanings, unless they are “wildly extravagant or impossible, or that the words were clearly not defamatory in their tendency”: Sloutsker at [83]-[86]. I will adopt the same approach when considering the “meanings” for the purposes of the “inaccurate” data protection claim. In that context, a court is also concerned with the natural and ordinary meaning of the data, applying the rules for determining meaning as developed in the law of defamation.

In respect of the libel claim, C’s pleaded meanings are:

Having considered the words complained of as, set out in the Particulars of Claim and in the annexe, these are plainly reasonable (or non-extravagant) meanings. They are grave.

In relation to C’s pleaded case on the inaccuracy (the data protection claim), the Particulars of Claim identify the inaccurate meaning contended for and plead C’s case as to why the data is inaccurate. They are detailed and I will not set them all out, but I note in particular that this includes inaccurate statements that C is guilty of fraud and had defrauded the author of their entire life savings. In my judgment, these allegations are self-evidently very grave. Fraud is one of the most serious allegations which could be made against a professional person in C’s position as a financial professional.

As I have noted above, D has failed to engage with these proceedings by filing a Defence. The effect is this matter comes to a trial of damages without disclosure of information as to the size of the readership of D’s publications. C is entitled to rely on Armory v Delamarie(1721) 93 ER 664. To the extent there are gaps in the evidence, D should not benefit from a failure to engage or provide disclosure as to the extent of publication or otherwise.

In any event, in my judgment this is a case where I can safely infer substantial publication of the words complained of in both causes of action. That inference arises from the following. First, the fact both the Reviews and the WordPress Site have been published to specific persons known to C, as pleaded and supported by his evidence. In these instances, the publishees came across the Reviews during ordinary professional interactions with him. It is to be inferred that others, unknown to C, will have seen the same. Secondly, the Reviews are accessible on a Google Search, via a “reviews” site of the type which potential clients and colleagues use when deciding whether to employ C, increasing the likelihood that they will be seen by persons known to him. I infer that publication has been far wider than the individuals known to C. His written evidence convincingly shows the operation of the well-known “grapevine effect”.

As I understood his position, D accepts that the available evidence tends to indicate that the statements complained of have been published to third parties off the back of specific searches online relating to C (most commonly by prospective clients and employers). I also find that it is likely that some additional publication has occurred by way of sharing hyperlinks to each statement. For these reasons I accept C’s submission that publication has been in the low hundreds.

Although that figure is not particularly high in the context of a defamation claim, the evidence before me demonstrates that the publication has been to a particularly sensitive constituency of persons who know or work with C, and that this has been an acute source of embarrassment and distress to him.

C’s case, which I accept, is not just that the words are grave but that they have caused him actual, and serious reputational harm. The most serious example of this was the effect of publication of these statements to a Citibank employee who had interviewed C for a job. I accept that the publication caused him to lose that lucrative job offer.

As I have noted above, I was referred to libel awards in other cases as comparators. I agree with the submission of C’s counsel that but for the cap he has placed on the value of his claim, damages in this matter would clearly exceed £10,000.00. On a conservative basis in my judgment they would have been in the range of £30,000.00 to £40,000.00.

Judgment for £10,000 will be entered in respect of the libel and data protection claims.

Given D’s conduct of this litigation and the continuing publication of the Reviews (as well as the way in which he sought to run his case at trial), in my judgment it is necessary and appropriate for the Court to restrain D from further publishing the libels or further processing C’s personal data. The need for an injunction is underlined by D’s conduct in the run up to this hearing. I note that in his recent correspondence, including with the Court, he repeats his defamatory allegations. In an email of 4 April 2022 to C’s solicitors, D has sought to assert that the Court has no jurisdiction over him and that says that he will be “certainly not complying with any of your technically [sic] victories”. That email was sent in response to a letter from C’s solicitors, enclosing the draft order and asking D to confirm that he would comply with any order the Court made. The fact C has independently succeeded in securing the removal of the Wordpress Site is no reason to refuse an injunction in respect of the data protection claim. I will grant the injunction sought but with some modifications to make it easier for a lay person to follow (as discussed with Counsel for C at the trial).

Section 13 of the Defamation Act 2013 provides:

“(1)

Where a court gives judgment for the claimant in an action for defamation the court may order—

(a)

the operator of a website on which the defamatory statement is posted to remove the statement, or

(b)

any person who was not the author, editor or publisher of the defamatory statement to stop distributing, selling or exhibiting material containing the statement.

(2)

In this section “author”, “editor” and “publisher” have the same meaning as in section 1 of the Defamation Act 1996.

(3)

Subsection (1) does not affect the power of the court apart from that subsection.”

C seeks an order under this provision requiring Consumer Opinion LLC, the operator of www.pissedconsumer.com, to remove the Reviews from that website. Consumer Opinion LLC is a US Company, based in Las Vegas, NV, and C has not succeeded in persuading Consumer Opinion to remove the Reviews. That is a common response of US based entities. D told me at trial that he had tried to have the reviews removed but had been told by Consumer Opinion to log in and remove them himself. He said he could not do so because he had lost his password. As I understood his position, he wished the reviews to be removed but did not have the ability to do so because of the password issue.

I considered the approach to orders under section 13 in Blackledge, where I made an order against Google LLC. I agree with C that a section 13 order is justified in this claim. Given D wishes to have the reviews removed, an order will assist him in his efforts. C has already expended significant time and costs in this claim, and in my judgment an order under section 13 is the most effective way of ensuring the defamatory publications of which he complains are swiftly removed. As in Blackledge, Consumer Opinion LLC was not present at the hearing. I will make provision in my order allowing it to apply to the Court for the Order to be varied or discharged.