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Law firm wins injunction against unknown operators of defamatory website

Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB)OverviewA law firm has won an injunction and damages against unknown persons behind a further incarnation of the infamous 'Solicitors from Hell' Brett Wilson LLP v Persons Unknown [2015] EWHC 2628 (QB)

Overview

A law firm has won an injunction and damages against unknown persons behind a further incarnation of the infamous 'Solicitors from Hell' website. Although the claim was not defended, and was heard on the Claimant's pleaded case alone, this was the first judgment under the Defamation Act 2013 which has made an award of damages to a "body which trades for profit". The case also provided some useful guidance for claimants which are faced with defamatory websites where the individual(s) responsible cannot be identified.

Background

www.SFHUK.com is a further manifestation of the 'Solicitors from Hell' website which was previously closed down following an action brought by the Law Society (Law Society v Kordowski [2011] EWHC 3185 (QB)).

In the same vein, SFUK is a 'name and shame' website devoted to complaints about "solicitor fraud, misconduct, incompetence, negligence, dishonesty, overcharging, corruption, embezzlement, lying/perjury and racism.'

SFHUK published the following words at some point between 2 October 2014 and 15 January 2015 in respect of the claimant: "SOLICITORS FROM HELL – Brett Wilson LLP… Rude, intimidating and threatening. Clients should stay well away from Brett Wilson Solicitors…"

The Claimant unsuccessfully attempted to identify the individuals behind SFHUK. The website owner was listed as 'Anonymous Speech' which is a proxy registrant service that regularly moves is servers from one country to another so that it cannot be traced. Despite the Claimant serving on Anonymous Speech (via email) a Norwich Pharmacal order to disclose the name behind SFHUK, no response was received. Therefore, the Claimant issued its claim against Persons Unknown.

'Persons Unknown'

In circumstances where the defendant cannot be identified it is an established principle that a claim can be made against Persons Unknown (in addition to further description). In this case, the Defendant was described as "Person(s) Unknown, Responsible for the Operation and Publication of the website http://www.solicitorsfromhelluk.com.

Where the defendant is unknown, the claimant will also require permission to serve the defendant via alternative means (the standard method being service at a physical address). In this case, the Claimant was permitted to serve its claim to two Anonymous Speech email addresses.

Judgment

The Defendant failed to respond to the claim (and in fact did not communicate with the Claimant or court at all). Accordingly, the Claimant applied for default judgment.

Warby J was first required to determine whether the court could hear the application in light of the Defendant's absence. As set out in Sloutsker v Romanova [2015] EWHC 545 (QB) (also heard by Warby J), it is first necessary to consider whether the defendant had proper notice of the hearing date and the matters to be considered at the hearing. If proper notice has been given, the court must examine the available evidence as to why the defendant has not appeared and see if this provides reason for adjourning the hearing. Warby J concluded that proper notice had been given and the reason for the Defendant's non-appearance was deliberate because they wished to remain anonymous. The hearing of the application could therefore proceed on the basis of the Claimant's unchallenged particulars of claim.

Warby J accepted the Claimant's pleaded defamatory meaning of the words, namely that the claimant was a "shameless, corrupt, fraudulent, dishonest, unethical, incompetent and oppressive firm of solicitors…"

Since the Claimant was a body which trades for profit, for the purposes of section 1(2) of the Defamation Act, it was required to show that the words had caused, or were likely to cause, "serious financial loss". The Claimant's pleaded case that the words were likely to cause serious financial loss were that:

  • the words were read and would inevitably be continued to be read by a number of prospective clients;

  • a number of prospective clients would decide not to instruct the firm as a result of the words published;

  • the loss of a single instruction could cost the firm thousands of pounds;

  • a prospective client withdrew instructions as a result of the publication;

  • it could be inferred that there have been a number of instances of prospective clients who have read the words and have decided to go elsewhere;

  • there had been a noticeable drop in conversion of enquiries from prospective clients over the past 6 months.


Warby J concluded that these allegations were sufficient to make out a case of serious financial loss (although he noted that the allegations tended towards statements of belief rather than fact). Although only some 276 individuals had made a Google search for the Claimant between 15 January and 27 July 2015, Warby J held that the words had a clear tendency to put people off dealing with the Claimant and in all probability at least one client was deterred, with probable financial loss. Additionally, the award needed to serve the purpose of vindication.

Accordingly, the judge granted mandatory and prohibitory injunctions to remove the website and prevent further publication.

The Claimant had requested summary disposal of the claim under sections 8 and 9 of the Defamation Act 1996 (i.e. on the basis that the defendant's claim had no realistic prospect of success). Warby J awarded the maximum amount of damages available under summary relief of £10,000.

Comment

This is the first case that has applied section 1(2) of the Defamation Act 2013 which requires a claimant which is a body that trades for profit to show that it has suffered serious financial loss. In this year's earlier case of Lachaux v Independent Print Limited & Ors [2015] EWHC 2242 (QB) (also before Warby J), it was held that the requirement of serious harm or the likelihood or serious harm (the test applicable to individuals rather than bodies trading for profit) must be proved on the balance of probabilities (although it could be proven by inference, if the relevant evidence justified such an inference). The same principle undoubtedly applies to serious financial loss, in that it must be proved and not inferred (unless it can be obviously inferred).

Warby J was prepared to infer serious financial loss in this case without specific proof (the Claimant had not provided any specific figures relating to financial loss). Warby J noted that 'serious' is dependent on the context. In this context, the words were purposely intended to put people off instructing the Claimant and consequently it could be inferred that the words were likely to achieve that purpose.

The case also highlights the difficulty a claimant faces in respect of a website where the person(s) behind it cannot be identified. If the claimant refuses to engage with the litigation and remains 'in hiding', the award of damages is unlikely to ever be enforced. However, if the claimant's purpose is vindication of its reputation, the fact that the defendant is not identifiable is not a barrier to achieving this goal.

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