Richard Phillips v Stefan Oloffs [2026] EWHC 1821 (KB)

2026] EWHC 1821 (KB)

Case No KB-2025-004714

IN THE HIGH COURT OF JUSTICE

KING’S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Venue Royal Courts of Justice,

Date 17/07/2026

Strand,

London,

WC2A 2LL

Before

MRS JUSTICE HILL DBE

Between

RICHARD PHILLIPSClaimant

STEFAN OLOFFSDefendant

Mariyam Kamil (instructed by Lawdit Solicitors Limited) for Claimant

David Hirst (Direct Access) for Defendant

Hearing Hearing date: 23 June 2026

Approved Judgment

This judgment was handed down remotely at 2pm on Friday 17 July 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

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[1]By a claim form sealed on 5 December 2025 the Claimant brings claims of(i) harassment contrary to the Protection from Harassment Act 1997 (“the PfHA”);

(ii) breach of confidence;

(iii) misuse of private information; and

(iv) breach of the UK Data Protection Regulation and the Data Protection Act 2018 (“the UK GDPR claim”). His claims arise out of a dispute within Greenwich Yacht Club (“the Club”), of which both parties were originally members.

[2]By an application dated 26 March 2026 the Defendant seeks an order striking out all of the Claimant’s claims under CPR 3.4(2)(a) and CPR 3.4(2)(b) and/or granting him reverse summary judgment on them under CPR 24.3.

[3]The application was supported by witness statements from the Defendant dated 26 March 2026 and 5 June 2026 (“Oloffs 1” and “Oloffs 2”), Thomas Bowring dated 25 March 2026 and 5 June 2026 (“Bowring 1” and “Bowring 2”), Nicholas Day dated 25 March 2026 and 5 June 2026 (“Day 1” and “Day 2”) and Susan Rush dated 16 February 2026 and 4 June 2026 (“Rush 1” and “Rush 2”).

[4]The Claimant responded to the application by a statement dated 8 May 2026 (“Phillips 1”). Annex A to Phillips 1 was a detailed schedule of the factual assertions in Oloffs 1 which the Claimant contested.

[5]Both counsel made very comprehensive written and oral submissions. I am grateful to them for their assistance in navigating what was a considerable amount of material. This judgment is structured as follows: The factual background: paragraphs [6]-59]; CPR 3.4(2) and CPR 24.3: [60]-[67]; The parties’ submissions in overview: [68]-[71];(1) The harassment claim: [71]-[128];

(2) The breach of confidence claim: [129]-[146];

(3) The misuse of private information claim: [147]-[155];

(4) The UK GDPR claim: [156]-[171];

(5) Abuse of process: [172]-[191]; and Conclusion: [192]-[193].

The factual background

[6]The Club is a boating organisation with approximately 400–440 members. From December 2020, the Claimant was a member of the Club’s Council. He performed the roles of Head of IT and Rear Commodore. From December 2022, he held the elected position of Commodore, the most senior position within the Club. From December 2020 until he resigned on 14 July 2023 the Defendant was also a member of the Council, as Cruiser Captain. All of these roles are unpaid voluntary offices.

[7]The facts underpinning the Claimant’s claim relate to his Dutch barge, named ‘Verandering’, specifically a dispute about whether he had secured preferential treatment in respect of the mooring fees he paid for the barge. Article 17(e) of the Club’s Articles of Association forbids payments in kind or preferential treatment for Club oﬃcers. The Defendant’s email sent at 8.01 pm on 14 June 2023 and events leading up it

[8]On 12 June 2023, the Defendant initiated an email discussion with the 12-member Council about an ecology event being organised at the Club. The Claimant and the Defendant expressed different views about the extent to which social and other activities not directly related to boating were beneficial to the Club. This expanded into a discussion about boat usage at the Club and the Club’s promotion of “on-water activities”.

[9]During 13 June 2023 several emails were sent between Council members about the low levels of participation in cruiser sailing. The Claimant and Defendant were critical of each other for their role in this: for example, at 3.10 pm the Claimant suggested that the Defendant was “point[ing] the finger at other people” for this (although he was Cruiser Captain); and at 6.34 pm the Defendant stated that the Claimant himself had “never made any suggestions on the cruiser side”. In the latter email, the Defendant raised the issue of the Claimant’s barge, saying that this “has been moored on the wall for 3 years and never moved, although it was meant to be a 6 months arrangement”.

[10]Throughout 14 June 2023 the Claimant and Defendant both sent several detailed emails, copied to the wider Council, about how cruiser participation might be increased. At 11.06 am the Defendant referred to the issue of “inactive boat owners” and “idle boats”. He said that the Claimant had “skirted the issue” of the temporary mooring arrangement for his barge, which he said had ended on 1 July 2021. At 4.50 pm the Claimant replied saying that he had not skirted the issue but had “ignored [it] along with other comments in this thread attempting to personalise what should be a civil discussion about the priorities of the Club”.

[11]At 8.01 pm, the Defendant emailed the Council and one other person to the effect that several Club members had raised concerns with him about the Claimant’s barge, the mooring arrangement for which he said had ended on 28 February 2022. He contended that the Claimant had “personally benefited by £12,855” while a Council member and now Commodore by paying lower mooring fees for the barge than were appropriate. The Defendant suggested that there be an investigation into the issue. The sending of this email by the Defendant is the first act in the course of conduct said to amount to harassment on which the Claimant relies for the purposes of this claim.

The investigation and report

[12]The Club commissioned an investigation into the Defendant’s allegations. This was carried out by Lionel Willis, the previous Commodore. His report dated 23 June 2023 (the “Investigation Report”) concluded that “it is clear that there has been no financial impropriety by [the Claimant] in the mooring of his barge, only a failure of administration and that the claims made by others are entirely spurious and without merit”. The report found that the Claimant had paid a total of £15,164 of mooring fees.

[13]The Investigation Report was marked ‘In Confidence’. The findings were sent to the Defendant on 2 July 2023. The Claimant’s evidence is that he was told the outcome but not shown the Investigation Report itself until September 2023.

[14]The Claimant’s case is that the Defendant was undeterred by the findings of the Investigation Report and despite repeated reminders from numerous people to desist, mounted a public campaign of harassment against him which continued until March 2024. This included him maliciously repeating the allegations against the Claimant, which were false, and which the Defendant knew to be false, through a range of means.

[15]The Defendant agrees that he did not accept the findings of the Investigation Report. His position is that he had misgivings as to whether Mr Willis had a conflict of interest as the investigator, as he was the former Commodore on whose watch the mooring arrangements for the Claimant’s barge had lapsed. Accordingly, the Defendant does not accept that the allegations he had made against the Claimant have been shown to be false. The Defendant asked the Vice Commodore what payments the Club had received as mooring charges from the Claimant and was sent a list of the payments.

[16]At 3.31 pm on 14 July 2023 the Defendant emailed the cruiser fleet saying that he was resigning from his role as Cruiser Captain. He gave as the reason that the previous month he had “raised financial impropriety on the part of a Council member” but had “experienced the Council’s unwillingness to tackle these”.

[17]A few hours later the Claimant emailed the cruiser fleet thanking the Defendant for his service. He observed in respect of the Defendant’s stated reason for resigning that the “game of leaks and rumours” was “already in full swing” such that he would “tackle this head on”. He explained that the allegation of financial impropriety made by the Defendant had been made against him, with regard to his barge. He explained that there had been an investigation and quoted the conclusion set out at [12] above almost verbatim. He said that the issue would be discussed at the upcoming Summer Forum.

[18]The Claimant emailed the Defendant a 6-page draft “counter-complaint” about the Defendant’s behaviour at the Club towards members, including with respect to the allegation of financial impropriety he had made against him. He concluded the document by suggesting that the Club give him a formal written warning and a short suspension from the Club.

The Defendant’s WhatsApp messages sent on 15 July 2023

[19]The Claimant relies on two WhatsApp messages sent by the Defendant on 15 July 2023 as part of the course of conduct alleged to constitute harassment.

[20]First, at 12.19 pm the Defendant posted a message in the Club WhatsApp group called “GYC Chat”, which at the time had around 230 members. This asserted that the Claimant had threatened to suspend him from the Club, received an improper benefit by virtue of his position as Commodore, missed payments and paid an unfairly low mooring fee.

[21]Second, at 4.10 pm, the Defendant posted a message to almost identical effect. He suggested that the Claimant was benefiting by paying the marina rates suitable for an 8 metre boat on the East coast, not a 25-metre boat in central London. He said he had received a menacing email from the Claimant the night before threatening to suspend his membership, 6 weeks after he raised the issue and “started to turn up the heat”.

The Summer Forum on 22 July 2023

[22]On 18 July 2023, a 6-page email flyer was sent to Club members setting out questions for discussion at the upcoming Summer Forum on 22 July 2023. The sixth page was entitled “Allegations regarding the Commodore”. Members were told that the concerns raised by another member and the Defendant about preferential treatment regarding the Claimant’s barge would be discussed. The flyer recorded the Defendant’s allegation that the Claimant had benefitted by £12,855; as well as the Claimant’s “counter argument” that “the matter was fully investigated by Council and they found that in fact there was no financial impropriety”. The flyer noted that “Both sides of this argument [would] be aired in full” at the Forum.

[23]In fact, the Defendant was unable to attend the Forum. The Claimant attended. He read out a 4-page pre-prepared statement. He explained that the Council had appointed Mr Willis to conduct the investigation and that he had provided Mr Willis with an 8-page written response to the allegations and 34 pages of documentary evidence. He confirmed that the findings of the investigation had been shared with the Council and they were to the effect that there was “no financial impropriety”. He said that the Defendant’s claim was found to be “false…untrue…[and] spurious” [emphasis in the original]; and that the Defendant had been asked to withdraw the complaint.

[24]The Claimant confirmed that he wished to “scotch” the rumours that he had not paid to moor his barge. He confirmed that he paid “over £15,000 to the club for the morning” [emphasis in the original]. He quoted the conclusion of the Investigation Report as it had been communicated to him, again reflecting that at [12] above.

[25]The Claimant said that the Defendant’s allegations against him could not be understood without some context, which was “how [the Defendant] has conducted himself in private, on Council, for many years. Though a very good cruiser captain, on Council [the Defendant] routinely talked over colleagues, shouted and threw accusation around when he did not get his way”.

WhatsApp messages during 3 August 2023

[26]At 9.08 am on 3 August 2023 the Defendant sent a message to the GYC chat group saying that he had asked for the minutes of the Forum but had been told that there were none, as it was an informal meeting. He said that he had asked for a copy of the slides the Claimant had used at the Forum, but that this request had been refused.

[27]The Claimant confirmed that the Forum had not been minuted but suggested members speak to those who had been present at it. The Defendant said to the Claimant that he had heard that at the Forum there had been “calls from the floor for you to remove your barge” followed by a ‘questioning’ emoji.

[28]Another member proposed a formal independent investigation, which the Defendant supported. He went on to say he did not wish to discuss “barge-gate” further on WhatsApp.

[29]The social media coordinator, Jo, asked members to abstain from further discussion about the topic as it was “damaging to Club morale and inflammatory regarding the issue overall”. She continued, “Further comments on this topic will be deleted by an admin”.

WhatsApp messages during 4 August 2023

[30]The Claimant’s harassment claim also relies on several WhatsApp messages sent by the Defendant to the GYC chat group on 4 August 2023.

[31]On the morning of 4 August 2023 the social media coordinator posted a lengthy message about use of the group. At 9.20 am the Defendant replied to the effect that people could self-police their discussions and that there appeared to be a “stifling of discussion” which “appears more like an attempt to control the narrative around the white elephant in the room” [emphasis in the original].

[32]In response, between 2.38 and 2.42 pm, the Claimant sent 10 separate numbered WhatsApps beginning “Let’s recap”. The messages set out his position in detail, including that the outcome of the investigation was that the Defendant’s claims had been found to be “false and spurious”. The Claimant said that he would be happy with a re-investigation into the allegation against him with one proviso, namely that there be a “parallel investigation” into the Defendant’s conduct which was made public. He observed that the choice of an investigator would be for Roger (understood to be a reference to Roger Bailey) to decide. He suggested that there be a “moratorium on discussing any of this here (enforced by Jo) until these investigations complete and results shared. I think most members would like to get back to Sailing”.

[33]At 2.53 pm the Claimant replied to some of the numbered messages sent by the Defendant. He sent a series of messages to the WhatsApp group between then and 8.49 pm that evening. He(i) described the investigation as a “whitewash at best”;

(ii) asserted that the Claimant had paid an improperly low fee for the mooring;

(iii) said the Claimant was personally breaking the law by having the barge on the wall;

(iv) said he did not have an agreement to moor, was paying an improperly small fee and risked the Club being charged £54,000 in retrospective fees by the Port of London Authority (“the PLA”);

(v) said he was receiving an improper benefit by having a boat moored against the quay;

(vi) said that the Club was at risk of being charged a substantial sum for the mooring;

(vii) repeated that the Claimant was receiving an improper benefit by having the barge moored at the quay;

(viii) asserted that the Claimant was continuing to moor his barge even though the arrangement had ended a year earlier so that the price should have defaulted to the higher visitor rate; and

(ix) said that the Claimant had taken the Club “for a ride” and was responsible for any later problems the Club had with the PLA arising from the mooring of the barge.

[34]The messages from the Defendant were part of a wider discussion with the Claimant and with other members. This included, at 6.37 pm, the Claimant asking the Defendant if he agreed that the outcome of “both investigations” would be made public and that there should be a moratorium on further discussion of the topic in the WhatsApp group until the investigations were complete. At 6.52 pm the Defendant responded to the Claimant asking “why would a proper independent investigation into your barge be contingent on me or anyone else?”.

[35]At 7 pm the Claimant replied to the Defendant saying “I…believe your conduct through this affair to be in serious breach of the Club’s constitution and bylaws – so if you want a re-investigation of me to be public, the investigation of you should be public as well. What do you have to fear from a transparent review of your conduct?”.

[36]Other members became involved in discussion about the detail of the amounts of mooring fees paid by the Claimant and the relationship with the PLA. The WhatsApp debate ended when two other members asked for the conversation to stop and others agreed.

[37]On 29 August 2023, the weekly email to all Club members included an explanation from the Council that they had, at their meeting the previous Saturday, discussed the “unevidenced allegations” mentioned in the WhatsApps, without the Claimant present. The email said that the Council was “satisfied with the investigation commissioned at the time” and that they did “not intend to carry out the associated reviews proposed”.

The Defendant’s allegations to the PLA

[38]On a date in September 2023 the Defendant made a written complaint to the PLA. This alleged that the barge was moored illegally and created a risk of drowning.

[39]In mid-November 2023 the Claimant removed the barge from its mooring.

The Defendant’s Website in overview

[40]On 3 January 2024 the Defendant created a Wordpress website named “barge-gate.com” (“the Website”) and registered that domain name. Screenshots from the Website are annexed to the Particulars of Claim (“the POC”). The Website stated:

“Welcome to Barge Gate This Website aims to highlight a conflict of interest concerning a Director of the club and the subsequent cover up by the club management. With a history spanning over 100 years, the club’s future and prosperity should not be marred by the club’s temporary custodians, namely the current committee. The documentation on this Website has not been ‘doctored’. However, references to the club have intentionally been redacted, as the club should be able to resolve this matter internally…”

[emphasis in the original].

[41]On or around 3 January 2024 the Defendant uploaded a copy of the Investigation Report to the Website. For a period of around a week the Website displayed only the first part of the 2-page report, which meant that the exculpatory conclusions on the second page were missing. Following this week, the Website displayed the full Investigation Report. This remained visible on the Website until around 29 February 2024. The name of the individual carrying out the investigation and the person who had provided information about the fees paid by the Claimant were redacted from the version of the report published on the Website. The Claimant was not named in full in the report but contends that he would have been identifiable from it. This is because there was one mention of “Richard” and several references to his initials “RP” in the report and elsewhere the Website used the phrase “now Commodore” (see [45] below) which would identify him.

[42]On or around 3 January 2024 the Defendant uploaded a copy of the table of the financial payments he had received from the Club in respect of the Claimant’s barge to the Website. The Claimant was not named on this table, nor did any of his bank account details feature. However, the name of the barge was given. The table recorded the invoice number, the invoice date, the amount paid and the date of payment. There were six payments listed, between 19 October 2020 and 13 July 2023. No total amount paid was given but the total of the figures listed is £15,163.29.

[43]The Claimant contends that the Investigation Report and payment figures were confidential and that by publishing them on the Website, the Defendant breached his confidence, misused his private information and unlawfully processed his personal data.

[44]On 5 January 2024 the Defendant uploaded to the Website words purporting to show the fees the Claimant should have been paying, namely an extract from a PLA price list. The Claimant contends that as displayed on the Website, this document contained words not in the original and so appeared to have been manipulated.

[45]The Website included a section entitled “Q & A about Barge Gate”. The first question was “Why did the 25-metre barge have to be moved in November 2023?”. The Claimant is not named in this section of the Website, but it is said that he is “now Commodore”. There is reference to the Club being “out of pocket” in the sum of around £10,000 a year. The Website proposed that the owner of the barge should be asked to compensate the club for the shortfall. The Claimant’s case is that this part of the Website was added on or around 30 January 2024.

The Defendant’s promotion of the Website

[46]The Defendant promoted the Website via multiple posts on the Club’s Facebook page before being told by volunteers that he could not do so. He then set up a dedicated Facebook page entitled ‘barge-gate’ which promoted the Website.

[47]The Defendant posted messages in the Club’s WhatsApp group about the Website. When these were removed by volunteers he set up a private WhatsApp group entitled ‘barge-gate’. He sent private messages to Club members inviting them to join this group.

[48]On or around 10 and 23 January 2024, the Defendant put posters up around the Club advertising the Website.

[49]On 23 January 2024 the Defendant handed out flyers at the members’ “Club night” which included a QR code to the Website.

[50]The posters referred to “new developments” in barge-gate. This reflected the fact that the Defendant had, on 12 January 2024, been invited to a disciplinary meeting by the Honorary Secretary of the Club. The Defendant uploaded the letter inviting him to the disciplinary meeting on the Website. He redacted the names of the Club and the sender from the letter.

The Defendant’s expulsion from the Club

[51]On 20 January 2024 the Claimant attended the disciplinary meeting. It was chaired by the Claimant. He uploaded his “remarks and observations at the disciplinary” to the Website. These referred to the Claimant’s full name and the first name of the Honorary Secretary.

[52]By letter dated 27 January 2024 the Defendant was expelled from the Club. He uploaded a redacted letter of the letter confirming his expulsion to the Website. The letter stated that the reasons for his expulsion were that he had repeatedly raised grievances on the club’s social media, publicised on the internet private financial information about a member which was provided to him in his capacity as a Council member and spread claims about a member which appeared to be defamatory.

[53]On 28 January 2024, the Council emailed all members with a “Special Announcement”. The email noted that it was “highly unusual” for the Council to report directly to the members about an investigation or disciplinary matter but that these particular circumstances were “extraordinary”. The email confirmed the expulsion of the Defendant from the Club. The conclusion of the Investigation Report was quoted. It was noted that the Defendant had “published a doctored version of the [Investigation Report] to the internet from which he has removed the exculpatory conclusion”. For that reason, the Council decided to publish the full Investigation Report which was linked to from the email. The email also included a link to the Claimant’s statement prepared for the Forum. The Defendant uploaded the Special Announcement to the Website, with his own commentary on various parts of it, in red boxed text.

[54]Another, apparently later, version of the “Welcome to Barge Gate text” reads as follows:

“Welcome to Barge Gate A Club member raised Barge-Gate in June 2023 +++ all discussion on Barge-Gate was quelled by the Commodore in collaboration with the Flag Officers and the other Committee members +++ protocol about this matter wasn’t followed +++ this Website sprung up +++ the mutinous member was hauled in front of the Committee in January 2024 and expelled +++ the barge owner issues a legal writ to this member +++ Let’s call the bluff”

[emphasis in the original].

[55]On or around 12 February 2024 the Defendant referred on the Website to confidential pre-action correspondence he had been sent.

Pre-action correspondence and the two claims brought by the Claimant

[56]On 8 February 2024, the Claimant complained to the Defendant about his conduct through his solicitors. The Defendant stopped publishing anything about the Claimant and made clear an apology was on offer. On or around 3 March 2024, he took down the Website. The Claimant’s case is that as at 26 February 2026, a snapshot of the Website nevertheless remained visible via the Wayback Machine Website archiving tool.

[57]On 23 June 2024 the Claimant commenced claim number KB-2024-001932, for defamation, malicious falsehood, breach of confidentiality and harassment against the Defendant.

[58]By an order sealed on 8 July 2025, after a hearing, Master Armstrong set aside the claim form in KB-2024-001932 because the Claimant had not complied with the provisions for service of the claim form in CPR 7.5 and CPR 6.9(2).

[59]On 5 December 2025, the claim form in this claim was sealed and the Claimant served it on the Defendant on 6 January 2026.

CPR 3.4(2) and CPR 24.3

[60]Under CPR 3.4(2), the court has the power to strike out a statement of case if it appears: “(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings...”.

[61]Under CPR 24.3, the court may give summary judgment against a claimant or defendant on the whole of a claim or on an issue if: “(a) it considers that the party has no real prospect of succeeding on the claim, defence or issue; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial”.

[62]The key difference between CPR 3.4(2)(a) and CPR 24.3 is that the former focusses on whether a statement of case, without reference to evidence, discloses reasonable grounds for bringing the claim whereas, in an application under the latter, the applicant may rely on extrinsic evidence to establish that the claim has no real prospect of success: Saeed v Ibrahim

[2018] EWHC 3 (Ch)

at [44].

[63]In HRH Duchess of Sussex v Associated Newspapers Ltd

[2020] EWHC 1058 (Ch)

, [2020] EMLR 21 (“Sussex”) at [33], Warby J (as he then was) provided the following guidance on the power to strike out a statement of case under CPR 3.4(2):

“(2) An application under CPR r.3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should “grasp the nettle”: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, but it should not strike out under this sub-rule unless it is “certain” that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266; [2004] PNLR 35 [22]. Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment. (3) Rule 3.4(2)(b) is broad in scope, and evidence is in principle admissible. The wording of the rule makes clear that the governing principle is that a statement of case must not be “likely to obstruct the just disposal of the proceedings”

. Like all parts of the rules, that phrase must be interpreted and applied in the light of the overriding objective of dealing with a case “justly and at proportionate cost”. The previous rules, the Rules of the Supreme Court, allowed the court to strike out all or part of a statement of case if it was “scandalous”, a term which covered allegations of dishonesty or other wrongdoing that were irrelevant to the claim. The language is outmoded, but…the power to exclude such material remains. Allegations of that kind can easily be regarded as “likely to obstruct the just disposal” of proceedings. (4) “Abuse of process” is a sub-set of category (b). An abuse of process is a significant or substantial misuse of the process. It may take a variety of forms. Typical examples are proceedings which are vexatious, or attempts to re-litigate issues decided before, or claims which are “not worth the candle” (Jameel v Dow Jones & Co Inc

[2005] EWCA Civ 75

;

[2005] QB 946

). But the categories are not closed”.

[64]At [34], he reiterated that “[i]n the context of r 3.4(2)(b), and more generally, it is necessary to bear in mind the Court’s duty actively to manage cases to achieve the overriding objective of deciding them justly and at proportionate cost”.

[65]The criterion on a summary judgment application under CPR 24.3 is “not one of probability; it is the absence of reality”: Three Rivers DC v Bank of England (No 3)

[2003] 2 AC 1

at [158].

[66]The principles applicable to an application for summary judgment were summarised by Lewison J (as he then was) in Easyair Ltd v Opal Telecom Ltd

[2009] EWHC 339 (Ch)

at [15] thus: “…the court must be careful before giving summary judgment on a claim. The correct approach on applications by defendants is…as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman

[2001] 1 All ER 91

; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel

[2003] EWCA Civ 472

at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)

[2001] EWCA Civ 550

; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd

[2007] FSR 63

; vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent’s case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant’s case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd

[2007] EWCA Civ 725

”.

[67]Although the court must be “astute” to avoid the perils of a mini-trial, it is “not precluded from analysing the statements made by the party resisting the application for summary judgment and weighing them against contemporaneous documents”. However, “disputed facts must generally be assumed in the claimant’s favour”: Daniels v Lloyd’s Bank Plc

[2018] EWHC 660 (Comm)

at [49](v) and (vi).

The parties’ submissions in overview

[68]The witness statements referred to at [3] above and their respective exhibits ran to over 1,000 pages. Given the extent of the factual material before the Court, Ms Kamil for the Claimant understandably argued that the claims were inherently unsuitable for summary determination: the Defendant was inviting the Court to accept his factual narrative as true, without disclosure or oral evidence, when the claim involved a myriad of factual disputes; and the application was a clear invitation to the Court to conduct an unrealistic and procedurally inappropriate mini-trial.

[69]However, having reviewed all the relevant evidence, I accept the submission of Mr Hirst for the Defendant, that these claims are suitable for early summary determination. This is because(i) many of the Defendant’s arguments involve the overarching submission that even taking the Claimant’s case at its highest, the relevant legal principles justify summary determination;

(ii) the claim is almost entirely one involving allegations of harassment by publication, where the words used, and the context in which they were used, are before the Court and there is no proper basis for considering that the position will change at trial;

(iii) the Claimant’s breach of confidence and misuse of private information claim as well as the UK GDPR claim rely on material the Defendant posted on the Website, which is before the Court; and

(iv) to the extent that there are certain factual disputes between the parties, these are not about the core issues on this application.

[70]Accordingly, it is possible and appropriate to “grasp the nettle” on the legal issues relevant to the applications (Sussex at [33](2) and Easyair at [15] vii); and to “separate the wheat from the chaff” in the evidence at an early stage as judges should be “astute” to do: Majrowski v Guy’s and St Thomas’s NHS Trust

[2006] UKHL 34

[2007] 1 AC 224

at [30], per Lord Nicholls.

[71]Further, all of the material necessary to determine the Defendant’s alternative submission that the claim is an abuse of process under CPR 3.4(2)(b) because of claim KB-2024-001932 and/or because it is “not worth the candle” in the Jameel sense is before the Court. (1). The harassment claim

[72]The PfH provides at section 1 that: “(1) A person must not pursue a course of conduct—(a) which amounts to harassment of another, and

(b) which he knows or ought to know amounts to harassment of the other… (2) For the purposes of this section…the person whose course of conduct is in question ought to know that it amounts to…harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other”.

[73]Harassment is: “…a persistent and deliberate course of unacceptable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress”: Hayes v Willoughby

[2013] UKSC 17

[2013] 1 WLR 935

] at [1], per Lord Sumption, citing Thomas v News Group Newspapers Ltd [2002] EMLR 4 at [30], per Lord Phillips.

[74]The Claimant’s harassment claim is advanced in the POC at [10]-[18]. The particular acts relied on as constituting a “course of conduct” for the purposes of section 1 of the PfHA are set out in Schedule 1 to the POC. Reliance is placed on:(i) The email the Defendant sent on 14 June 2023 at 8.01 pm, described at [11] above: POC, Schedule 1 at [1]-[3];

(ii) The 2 WhatsApp messages the Defendant sent on 15 July 2023 and the 8 he sent on 4 August 2023, summarised at [19]-[21] and [33] above: POC, Schedule 1 at [4]-[7];

(iii) The complaint the Defendant made to the PLA in September 2023 alleging that the barge was moored illegally and represented a risk of drowning, described at [38] above: POC, Schedule 1 at [8]-[9];

(iv) The Defendant’s setting up of the Website on 3 January 2024 until it was taken down on 3 March 2024, and his promotion of it via Facebook, WhatsApp and posters and flyers, described at [46]-[50] above: POC, Schedule 1 at [10]-[29];

(v) The Defendant’s “harassment by the use of members as proxies” during the pre-action period, namely by the sharing of the pre-action correspondence before KB-2024-001932 with two members of the Club, Mr Bowring and Mr Day, leading to Mr Bowring making his own complaint to the Club about the Claimant: POC, Schedule 1 at [30]-[36];

(vi) The Defendant’s “failure to use appropriate channels” to raise his concerns, namely by a complaint to the Council under the Club’s complaints procedure, and his failure to “heed due warnings” to desist from his behaviour: POC, Schedule 1 at [37]-[49]; and

(vii) The impact of the Defendant’s actions on others in that, for example, Club members posted around 100 messages debating the allegations, some of which accepted them as true: POC, Schedule 1 at [50]-[56].

[75]Mr Hirst advanced a series of submissions in support of the application. They can be grouped together as follows.

(a) : The seriousness threshold

[76]In Scottow v CPS

[2020] EWHC 3421 (Admin)

[2021] 1 WLR 1828

, Warby J, with whom Bean LJ agreed, adopted the following principles set out by Nicklin J in Hayden v Dickenson

[2020] EWHC 3291 (QB)

at [44]: “24...(ii) The behaviour said to amount to harassment must reach a level of seriousness passing beyond irritations, annoyances, even a measure of upset, that arise occasionally in everybody’s day-to-day dealings with other people. The conduct must cross the boundary between that which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the border from the regrettable to the objectionable, the gravity of the misconduct must be of an order which would sustain criminal liability under s.2… (iii)…It does not follow that any course of conduct which causes alarm or distress therefore amounts to harassment; that would be illogical and produce perverse results… (iv) s.1(2) provides that the person whose course of conduct is in question ought to know that it involves harassment of another if a reasonable person in possession of the same information would think the course of conduct involved harassment. The test is wholly objective. “The Court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant”… 25…(2) where the claimant is, by choice, a public figure that should influence any assessment of whether particular conduct amounts to harassment of that individual; such a person has “inevitably and knowingly laid themselves open to close scrutiny of their every word and deed”, and others can expect them to be more robust and tolerant accordingly: Poruba v Russia 8237/03

[2009] ECHR 1477

[45], and domestically, Trimingham v Associated Newspapers Ltd

[2012] EWHC 1296 (QB)

[249-250]”.

[77]Put another way, the “touchstone” for liability for harassment is whether the impugned conduct is of such gravity as to justify the sanctions of the criminal law: Sunderland City Council v Conn

[2007] EWCA Civ 1492

at [12]. Whether the boundary has been crossed is to be judged objectively: Dowson v Chief Constable of Northumbria Police

[2010] EWHC 2612 (QB)

at [142].

[78]Mr Hirst’s overarching submission was that the acts of harassment relied on by the Claimant were not, individually or cumulatively, capable of amounting to the quasi-criminal conduct required.

[79]Ms Kamil was right that there is some need for caution in determining the gravity of alleged harassment on a summary basis: in Brown v AB

[2018] EWHC 263 (QB)

at [90], Edward Pepperall QC (sitting as a Deputy High Court Judge, as he then was) observed that this is “a fact-sensitive assessment that can only be made at trial” unless the allegations of harassment are “obviously flimsy”; and in Miller v Turner

[2023] EWHC 2799 (KB)

at [109], Collins Rice J described the process as a “holistic and evaluative exercise, to be undertaken in as full a context as possible”.

[80]However, as McNally v Saunders

[2021] EWHC 2012 (QB)

, [2022] EMLR 3 illustrates, it is possible to determine gravity at an early stage, especially in a case such as this which largely involves a claim of harassment by publication, where the full context of the publications is before the Court.

[81]Having conducted that exercise I agree with Mr Hirst that the Claimant has no real prospect of showing that the Defendant’s conduct met the necessary seriousness threshold, for the following reasons.

[82]First, seen in its full context, all of the actions of the Defendant involved him robustly and repeatedly stating his position as to whether the Claimant had behaved improperly over the mooring fees issue. For his part, the Claimant vociferously and repeatedly defended himself from the outset, relying on the findings of the Investigation Report. At no stage did the Claimant seek to keep matters confidential (see, by analogy, McNally at [83]).

[83]Second, the tone, content and style of the Defendant’s publications were, by and large, as Mr Hirst argued, “considered, careful, precise [and] lawyerly”.

[84]Third, the Defendant targeted the publications appropriately to the audience he was seeking to reach. The email was private correspondence sent to limited interested recipients. The WhatsApp group was limited to Club members. Neither the email nor any of the WhatsApps were sent solely to the Claimant. While the Website was in the public domain, and the counter showed that it had attracted 1,482 visitors (more than three times the membership of the Club, albeit some may have been “bots”), I accept Mr Hirst’s submission that the contents would have been almost unintelligible and/or of little interest to non-members. The posters put up by Defendant to advertise the Website did not identify the Claimant or the subject matter at all beyond reference to ‘barge-gate’.

[85]Fourth, I do not accept Ms Kamil’s submission that the scale of the Defendant’s campaign against the Claimant was so “remarkable” that it arguably met the quasi-criminal threshold. At its simplest, it amounted to one email, ten WhatsApp messages sent over 2 days, a complaint to the PLA and the Website, which the Defendant then promoted.

[86]Fifth, while the allegations the Defendant made about the Claimant’s conduct were serious, as Ms Kamil highlighted, that does not mean that the Defendant’s own conduct in making those allegations was quasi-criminal. This is especially so, given the context of robust debate in the Club environment, where the Claimant also made serious counter-allegations about the Defendant’s conduct in the Club.

[87]Sixth, Mr Hirst was right to note that none of the “offline” conduct was “at the front garden gate”, meaning that it did not involve, for example, “doorstepping” the Claimant or directly intruding into his private life.

[88]Seventh, I cannot accept Ms Kamil’s submission that evidence of the impact of the Defendant’s conduct on the Claimant is material to the gravity assessment: on the contrary, Scottow reiterates that “it does not follow that any course of conduct which causes alarm or distress…amounts to harassment” and that the Court’s assessment of the harmful tendency of the statements complained of “must always be objective, and not swayed by the subjective feelings of the claimant”: at [24](iii) and [24](iv).

[89]Eighth, two of the comparator cases relied on by Mr Hirst are of assistance.

[90]Merlin Entertainments LCP and others v Cave

[2014] EWHC 3036 (QB)

involved an application for an interim injunction to restrain the Defendant from “sending mass emails and setting up Websites in which he campaigns on the issue of safety in theme parks, and criticises the Claimants and other individuals (sometimes in intemperate and hurtful terms)”: [2]. Laing J (as she then was) declined to grant the injunction sought. At [73] she held that the comments on the Website, which alleged that the claimant was turning a blind eye to the physical safety of children on rides at its theme parks and management were culpable for serious accidents, did not arguably “cross the Majrowski line from robust comment to oppressive and unnecessarily and unacceptably personal attacks”. She reached the same conclusion in relation to the correspondence including the mass emails: [74]-[94].

[91]Miller involved a course of conduct which Collins Rice J described as involving “the full lexicon of Twitter trolling” with “a relentless pursuit of the theme of his mental deficiency or mental illness” and “the queasy undertows of menace and antisemitism” which was “aggressive, in register, language and imagery”: [91]-[92], [101] and [111]. While she accepted that this amounted to bullying, 3-036 she concluded that it fell short of quasi-criminal conduct for the tort of harassment: [93], [106] and [110]-[114].

[92]Both of these cases involved conduct which, viewed, objectively, was more serious than that at issue in this case; and in neither was the gravity threshold met (albeit that Miller was a decision made after trial).

[93]Finally, the further matters considered in subsection (b) below in respect of Article 10 apply to the threshold issue (and vice versa), as there is considerable overlap between these two issues.

[94]Accordingly, while the Defendant’s actions may well have caused the Claimant “a measure of irritation…annoyance…[and] upset”, I do not consider that the Claimant has a real prospect of showing at trial that the Defendant’s conduct crossed the boundary of being “oppressive and unacceptable” (Scottow at [44] (ii)), thus meeting the threshold of seriousness for harassment under the PfHA. I am therefore satisfied that summary judgment in the Defendant’s favour on this claim is appropriate.

(b) : The impact of Article 10

[95]The bulk of the Claimant’s harassment claim, reflected in the first 29 paragraphs of the POC, Schedule 1, is concerned with harassment by publication, namely the statements the Defendant made by email, WhatsApp and on the Website.

[96]Harassment by publication claims raise particular legal issues as Warby J explained in Scottow, again adopting the principles set out in Hayden:

“24…(vi) Where the complaint is of harassment by publication, the claim will usually engage Article 10 of the Convention and, as a result, the Court’s duties under ss.2, 3 , 6 and 12 of the Human Rights Act 1998. The PfHA must be interpreted and applied compatibly with the right to freedom of expression. It would be a serious interference with this right if those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted. (vii) In most cases of alleged harassment by speech there is a fundamental tension. s.7(2) PfHA provides that harassment includes “alarming the person or causing the person distress”

. However, Article 10 expressly protects speech that offends, shocks and disturbs. “Freedom only to speak inoffensively is not worth having”. (viii) Consequently, where Article 10 is engaged, the Court’s assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly. Cases of alleged harassment may also engage the complainant’s Article 8 rights. If that is so, the Court will have to assess the interference with those rights and the justification for it and proportionality…The resolution of any conflict between engaged rights under Article 8 and Article 10 is achieved through the “ultimate balancing test” identified in In re S

[2005] 1 AC 593

[17] per Lord Nicholls. (ix) The context and manner in which the information is published are all-important…The harassing element of oppression is likely to come more from the manner in which the words are published than their content… 25…(3) In a case of alleged harassment by publication the Court, in order to protect the right to freedom of speech, “should take account of the extent to which the coverage complained of is repetitious and taunting, as opposed to being new, and prompted by some fresh newsworthy event. The imposition of liability in respect of coverage that falls in the latter category will be harder to justify”: Sube [106(2)]”.

[97]These principles are not limited to claims against national or local media, but can extend to more informal or local types of publication, such as emails, the setting up of a Website on a specific issue, blog posts, letters of complaint and social media posts: see, for example, Khan v Khan

[2018] EWHC 241 (QB)

), Merlin, McNally and Scottow itself.

[98]In Magyar Helsinki Bizottság v Hungary

(2020) 71 EHRR 2

at [168], the European Court of Human Rights emphasised the following: “The Court would also note that given the important role played by the internet in enhancing the public’s access to news and facilitating the dissemination of information, the function of bloggers and popular users of the social media may be also assimilated to that of ‘public watchdogs’ in so far as the protection afforded by art.10 is concerned”.

[99]Mr Hirst argued that when the Court balanced the competing factors which are engaged, and took into account the special context of freedom of expression, there was no realistic prospect of the Court finding at trial that the Claimant’s allegations of harassment by publication satisfied the threshold for interfering with the Defendant’s right to freedom of expression under Article 10.

[100]Ms Kamil relied on the “intense fact-sensitive evaluation and balancing exercise” that must take place when the Court is considering Claimant’s Article 8 rights and the Defendant’s Article 10 rights (Abbasi v Newcastle upon Tyne Hospitals NHS Trust

[2023] EWCA Civ 331

[2023] Fam 287

(CA) at [61]). However, as I have said, I consider that there is sufficient material before the Court to conduct this exercise now; and having done so, I have concluded that the Defendant’s submissions on the Article 10 issues are to be preferred. This is for the following reasons.

[101]First, the “context and manner in which the information is published are all-important”: McNally at [32](ix), citing Hayden. Here, the context of the Defendant’s publications was a serious allegation concerned with the governance of the club, on which there were competing views and in which other Club members were interested. The Claimant defended himself robustly, many times, to the same audience of members: for example, he argued his own position in the WhatsApp exchanges; presented his case to a live audience at the 22 July 2023 Summer Forum; published information about the Defendant’s allegations and his exculpation via WhatsApp on 4 August 2023, before the Defendant posted anything at all; and re-publicised the impropriety allegation in disseminating notice of the Defendant’s expulsion from the Club in January 2024.

[102]Second, the manner of the publication was limited to targeted, written publications. There was no evidence of, for example, bombarding the Claimant with communications, violation of any protected characteristic or threats to his life, as is often seen in harassment claims. The words used were generally moderate and measured: see [83] above. Further, the Defendant ceased publishing any material when the Claimant requested it through his solicitor.

[103]Third, the Claimant had stood for and been elected to a position which amounted to the most senior “public” role within the affairs of the Club. Although not an elected politician, a person occupying the position of Commodore must expect to be open to criticism of the type that was levelled at him by the Defendant, which related entirely to his actions within the Club: see, for a statement of the general principle in operation here, albeit in the context of a public health official on the national stage, McNally at [84].

[104]Fourth, in setting up the Website the Defendant was trying to bring together the key evidence about any alleged impropriety regarding the barge and explain the case in simple, jokey terms to members (for example “You are having me on! Are you kidding me?”). He was trying to communicate his views and inform members. While I accept Ms Kamil’s point that he did not comply with the same standards that are expected of professional journalists which “citizen journalists” are held to, (such as rigorous verification of allegations and permitting a right of reply: see Gatley on Libel and Slander (13th edition, 2022) at [16-019]), his actions with respect to the Website were very broadly akin to him acting in such a capacity, reporting in the public interest in terms of Club members.

[105]Fifth, at various points the Defendant’s acts were by way of reply or response to what the Claimant was saying and/or were “prompted by some fresh newsworthy event” (Scottow at [25](3)) such as the disciplinary process against him. This would make it harder to justify limiting his Article 10 rights by finding him liable for harassment: ibid.

[106]Sixth, Ms Kamil was right to highlight the Claimant’s pleaded case, which the Court must assume to be true at this stage, is that the Defendant deliberately disseminated false allegations against the Claimant, which is “a significant factor in the overall assessment”. However, the truth or falsity of statements published is not determinative: McNally at [32](xi), citing Hayden).

[107]Seventh, while the Claimant complains that a page of the Investigation Report which exonerated him was not uploaded for a period of a week on the Website, and that this amounted to a biased or vindictive approach by Defendant, it is agreed that the Defendant had in fact uploaded the entire Investigation Report to the Website initially, as the Claimant took screenshots of it.

[108]Eighth, the Claimant could have used some of the self-help measures that feature in the authorities to avoid any unwanted communications from Defendant: he could have blocked the Defendant on WhatsApp or, as the evidence shows, asked for his posts to be deleted. He could also have chosen not to specifically find the Website.

[109]Finally, some support can be drawn from the comparator case of McNally. This concerned blog posts, tweets and two letters of complaint by a citizen journalist about a local civil servant. It involved a “series of unpleasant, personally critical publications” which mocked the claimant for mental ill health, a protected characteristic. Chamberlain J granted the Defendant summary judgment on the basis that the Claimant had no real prospect on the harassment claim: [49]-[51] and [91]-[92]. Here, the Defendant was similarly acting in a quasi-journalistic role; and the content of his publications lacked any focus on protected characteristics: see [102] and [104] above.

[110]Accordingly, I do not consider that the Claimant has realistic prospect of succeeding at trial on the Article 10 arguments, such that they provide a further basis for granting the Defendant summary judgment on the Claimant’s harassment claim.

(c) : Alleged acts of harassment not targeting the Claimant

[111]POC, Schedule 1 at [10]-[29] sets out the Defendant’s conduct with respect to the Website as part of the pleaded claim on harassment. Mr Hirst contended that these paragraphs fell to be struck out because they were not “targeted” at the Claimant and thus were not capable of amounting to part of a course of conduct. He drew support from the observation of Chamberlain J in McNally at [68], to the effect that one of the reasons why harassment claims relating to publication to the world at large are problematic is that:

“….harassment must be “targeted at another person”: Hayes v Willoughby [[2013] UKSC 17, [2013] 1 WLR 935] at [1]. Most publications to the world at large are not targeted at another person, even if they are about another person”

[emphasis in the original]”.

[112]Ms Kamil relied on the general point that had been made in the earlier case of Levi v Bates

[2016] QB 91

at [34] to the effect that those who are “targeted” by the alleged harassment can include others “who are foreseeably, and directly, harmed by the course of targeted conduct of which complaint is made, to the extent that they can properly be described as victims of it”. However, Chamberlain J had taken Levi into account: see McNally at [32](v).

[113]In my judgment, the principle set out in McNally at [68] applies here, especially because of the structure and content of the Website: it was named “barge-gate.com”, rather than using the Claimant’s name; much of the content on it was written without naming the Claimant; and although some parts of the Website included rather obscure references to the Claimant, due to the structure of the site an internet search in his name would not have identified the site.

[114]This provides another reason for granting the Defendant summary judgment on POC, Schedule 1 at [10]-[29].

[115]POC, Schedule 1 at [30]-[36] rely on the Defendant passing documents such as the Claimant’s letter of claim in KB-2024-001932 to other members of the Club as acts of harassment.

[116]Mr Hirst argued that these particulars fell to be summarily dismissed in the Defendant’s favour because these were again acts not targeted at the Claimant, but ones that relied on the independent intervention of others. He noted that the Defendant had, in any event, given evidence explaining why there were very good practical reasons for sharing the letter of claim with selected members: Oloffs 1 at [122].

[117]I am not persuaded by this argument. As Ms Kamil rightly highlighted, on the Claimant’s pleaded case, the alleged harassment is that the Defendant “involved, encouraged and coordinated others in disseminating allegations against the Claimant, including by sharing confidential pre-action correspondence with members of the Club”. From the Defendant’s perspective, “this harm was intended or at least foreseeable” [emphasis added]. If the Claimant proved these allegations at trial, that may well suffice to constitute “targeting” in the relevant sense.

[118]Further, in response to POC, Schedule 1 at [31]–[34], the Defendant has adduced multiple witness statements from Mr Bowring and Mr Day, apparently to seek to establish that those individuals were acting independently and not at the Claimant’s instigation. However, for the reasons set out in Phillips 1 at [21]–[51], at the very least, these untested witness statements give rise to substantial factual disputes, including about the witnesses’ credibility and independence, which the Court can only properly assess at trial.

[119]Accordingly had I not granted the Defendant summary judgment on the totality of the harassment claim for the reasons given in subsections (a) and (b) above, I would not have granted the Defendant summary judgment on POC, Schedule 1 at [30]-[36] on the basis of the “targeting” argument. (d): Alleged acts of harassment not involving “deliberate”, “persistent” and/or positive conduct by the Defendant

[120]POC, Schedule 1 at [37]-[49] avers that the Defendant made various statements about the Claimant’s barge arrangement but did not avail himself of opportunities to raise his concerns with the Club’s Council or under the Club’s complaints procedure; and did not heed various warnings to cease his conduct.

[121]Mr Hirst argued that these aspects of the Claimant’s harassment claim fell to be struck out because they did not involve positive acts or conduct by the Defendant. As noted at [73] above harassment involves “deliberate” conduct. “Deliberate”, Mr Hirst argued, must mean “done consciously and intentionally”. Support for this interpretation could be drawn from the fact that under section 1(1)(b) of the PfHA, liability is only established if the defendant “knows or ought to know that the conduct amounts to harassment” and such knowledge cannot, sensibly, exist in relation to something the defendant does not do.

[122]I accept this submission. The Defendant’s failure to take recourse in the proper internal channels within the Club to redress his grievance is part of the context for the actions he did take, but in my judgment the omission to follow those channels cannot also amount to acts of harassment. The position is even clearer in respect of his failure to desist when asked to do so: as Laing J held in Merlin at [54], the fact that the Defendant had been told more than once to desist from his conduct by the Claimants’ solicitors was “part of the picture” but could not “as a matter of law, convert otherwise innocuous conduct into harassment”.

[123]In oral submissions, Mr Hirst developed an argument that the Defendant’s conduct also lacked the necessary quality of “persistence” required to make out a harassment claim: again, see [73] above. He contended that the Claimant’s claim was based on no more than 15 electronic communications, the setting up of a Website and the putting up of some posters. He drew an analogy with Scottow at [38](3)-(5), where Warby J held that there had not been a single “course of action” because there had been different phases of communication each qualitatively different in nature and content, and gaps where the Defendant had stopped the behaviour in question.

[124]Scottow was not a strike out or summary judgment application but a challenge to a criminal conviction. Here, in my judgment, the Claimant realistically could establish at trial that the Defendant’s fairly regular conduct over several months illustrated him “continuing, firmly or obstinately in an opinion or course of action in spite of difficulty or opposition” with “elements of frequency and application to a theme, cause or view point” (namely barge-gate), “the furtherance of which was supported by determination despite being discouraged from doing so in some form or another”. This was the sort of conduct which Warby J accepted could amount to a course of conduct: Scottow at [38](2). Accordingly, I do not find in the Defendant’s favour on this issue.

[125]POC, Schedule 1 at [50-[56] describes the reactions of third parties to statements made by the Defendant. Ms Kamil was correct to argue that the impact of the Defendant’s actions on the perception others had of the Claimant was relevant to the overall context. However these matters cannot of themselves amount to acts of harassment by the Defendant: rather, they describe the effect of the acts described earlier in the Schedule.

[126]As noted at [63] above, before deciding whether to strike out part of a statement of case under CPR 3.4(2)(a), the Court should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment.

[127]In my judgment this principle applies to POC, Schedule 1 at [37]-[56]. Accordingly had I not granted the Defendant summary judgment on the entirety of the harassment claim, I would have permitted the Claimant to amend the POC to plead the matters currently set out in POC, Schedule 1 at [37]-[56] in the main body of the POC, as part of the factual background, but not as discrete acts of harassment.

(e) : Overall conclusion on the harassment claim

[128]For all these reasons, having assessed the conduct relied on in the context of the extrinsic evidence provided by the parties, I conclude that the Claimant has no real prospect of succeeding on the harassment claim. In my judgment there is an “absence of reality” about the claim; and it does not have a “realistic” prospect of success in the sense that it does not carry “some degree of conviction” (Three Rivers at [158] and EasyAir at [15](ii)). I therefore grant the Defendant summary judgment on the Claimant’s harassment claim. (2). The breach of confidence claim

[129]In Coco v AN Clark (Engineers) Ltd

[1968] FSR 415

, at 419 Megarry J held that three elements are normally required for a claim of breach of confidence to succeed:(i) the information itself must “have the necessary quality of confidence about it”;

(ii) the information must have been imparted in circumstances importing an obligation of confidence; and

(iii) there must be an unauthorised use of that information to the detriment of the party communicating it.

[130]First, Mr Hirst argued that any arguable duty of confidence that the Defendant had in respect of the Investigation Report and the list of payments was owed to the Club, not the Claimant. The Investigation Report was a document supplied to the Defendant by Roger Bailey, representing the Club. It was a report produced under the Club’s procedures. Similarly, the payments figures were provided to the Defendant by the Club when he asked for an accounts receivable statement in respect of the mooring arrangement from a member of the Council. Accordingly, the Claimant could not pursue a breach of confidence claim, because such a claim may only be brought by “the person who is entitled to the confidence and to have it respected”, namely, “the person to whom the duty of good faith is owed”: Fraser v Evans

[1969] 1 QB 349

at 361C-D.

[131]However Ms Kamil drew support from authorities to the effect that(i) where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom it was received and/or to the person “to whom it relates” not to use it for other purposes: R (Ingenious Media plc) v Revenue and Customs Commissioners

[2016] 1 WLR 4164

at [17]; and

(ii) even when confidential information is obtained from one person, another person to whom it relates may enforce its confidentiality if that person has “a substantial and legitimate interest in the maintenance of their confidentiality”: Matalia v Warwickshire County Council [2017] ECC 25 at [30]–[31]. This was why, for example, when a third party obtained patient data from confidential hospital records, both the hospital (from which the information was obtained) and the patients (to whom the information relates) had a shared interest in the confidentiality of the information: Ashworth Security Hospital v MGN Ltd

[2001] 1 WLR 515

[51]–[54].

[132]In light of these authorities, the Claimant has a realistic prospect of showing at trial that he, as well as the Club, were owed a “duty of good faith” in respect of the Investigation Report and payments figures, such that he is entitled to bring a breach of confidence claim.

[133]Consistent with these authorities, the Claimant also has a realistic prospect of showing at trial that the Investigation Report and payments figures had “the necessary quality of confidence” about them and were “imparted in circumstances importing an obligation of confidence”. This conclusion is also justified by the fact that(i) the Investigation Report was marked ‘IN CONFIDENCE’;

(ii) the Club’s Data Privacy Policy provided that “Members of Council have a particular responsibility to protect the privacy of members’ data”; and

(iii) the information in the Investigation Report and the payments figures related to inherently confidential and private matters about the Claimant, the investigation into his conduct and his private contractual arrangements with the Club.

[134]Accordingly, this argument does not justify strike out or summary judgment on the breach of confidence claim.

[135]Second, Mr Hirst relied on the Claimant’s own actions in respect of the information. He pointed to the fact that the Claimant had voluntarily disclosed the essential outcome of the Investigation Report (namely that the allegations were not upheld and he had been exonerated); and the fact that he had paid more than £15,000 in mooring fees, to the Club members at the Summer Forum in July 2023. He had also repeated the findings of the Investigation Report in message 2) of his 10 separate numbered WhatsApps sent on 4 August 2023. Finally, the Claimant had overseen the distribution of the Investigation Report to the entire Club membership via email on 28 January 2024 and for several weeks thereafter. Mr Hirst argued that the only “public domain” that matters for the purposes of the Claimant’s claim was the membership of the Club: the information was of no interest and would be unintelligible beyond the membership.

[136]Once information has entered the public domain, it cannot be regarded as confidential: Attorney-General v Observer Ltd and others (‘Spycatcher’)

[1990] 1 AC 109

at 209. As Toulson and Phipps on Confidentiality (5th Edition, 2026) at 4-053 explains, “if information is known to the public at large, it would be idle (both in terms of sense of unreal and in the sense of purposeless) to seek to regard it as confidential”. Further, there must be “some value to the party claiming confidentiality in the information being treated as confidential” ibid. at 4-005.

[137]Accordingly, Mr Hirst submitted that confidentiality in both the Investigation Report and payments figures had been lost long before the Defendant published them on the Website in January 2024; and that the Claimant’s own actions in repeatedly disclosing the Investigation Report and overall payments figure were inherently incompatible with a breach of confidence claim.

[138]In my judgment these submissions are sound.

[139]Ms Kamil correctly highlighted that at the time the Defendant published the Investigation Report on his Website (3 January 2024) and at the time when he deleted the second page of the report from the Website to convey a misleading impression (20 January 2024), the Investigation Report had not been published, either to the members of the Club or to the public at large.

[140]It may well also be correct that at the time the Claimant disclosed the confidential information contained in the Investigation Report at the Forum on 22 July 2023, he had not received the report in full (that not occurring until 28 September 2023).

[141]However the Claimant accepted in Phillips 1 at [17] that he had been informed of its conclusions of the Investigation Report in broad terms. He had clearly received sufficient information to disclose to Club members at the Forum the key details of the Report, namely the exculpatory outcome and the finding as to the amount of mooring fees he had paid. These were the most important aspects of the Report that attracted confidentiality.

[142]Ms Kamil was right to identify that the list of payments published by the Defendant gives details such as the date of each invoice and the date of each payment. However the total amount of mooring fees the list illustrates (in the sum of £15,163) was entirely consistent with the “over £15,000” figure the Claimant himself had announced at the Forum.

[143]She also highlighted that when the Club’s Council disclosed the Investigation Report to Club members on 28 January 2024, it made clear that while “it should [not] be normal practice to publish investigatory reports and this would often breach data protection regulations” the Council had decided to do so on this occasion because the Defendant had published “a doctored version of the report to the internet from which he has removed the exculpatory conclusion”. For that reason the Council considered that it was “proper” for members to be able to read “the full version”.

[144]She was correct that the corrective publication on 28 January 2024 did not necessarily “cure” the Defendant’s actions on 3 and 20 January 2024. However the 28 January 2024 publication, done with the Claimant’s support, is entirely consistent with his earlier actions at the 22 July 2023 Forum. It illustrates that he did not have any difficulty with the key information being made public from an earlier stage: indeed he had made clear very early in the chronology that he wanted to “tackle…head on” the “game of leaks and rumours”: see [17] above.

[145]Mr Hirst identified the “yardstick” for liability in breach of confidence as being that the conscience of the disclosing party must be affected: they must know that a claimant treats matters as secret and that their use would be unauthorised (or they be objectively taken to realise their disclosure was unauthorised). Here, I accept his submission that the yardstick cannot be passed: the Claimant himself had used the information for his own purposes at the Forum, and this had occurred before the Defendant uploaded it to the Website. Accordingly, it would not be realistic for the Claimant to argue at trial that the Defendant’s conscience could have been affected.

[146]For all these reasons I find that the Claimant has no real prospect of succeeding on the breach of confidence claim and grant the Defendant summary judgment on it. (3). The misuse of private information claim

[147]The principles applicable to misuse of private information claims were set out in ZXC v Bloomberg LP

[2022] UKSC 5

[2022] 2 WLR 424

at [43]-[62]. For the purposes of this application the following are relevant:(i) Articles 8 and 10 of the ECHR protect, respectively, the right to respect for private and family life and the right to freedom of expression: [43].

(ii) Where a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression, section 12(4) of the Human Rights Act 1998 (“the HRA”) provides that the court must have “particular regard to the importance of the Convention right to freedom of expression”: [44].

(iii) Further, where the proceedings relate to material which the respondent claims, or which appears to the court, to be “journalistic, literary or artistic material (or to conduct connected with such material)”, section 12(4) requires the court to have regard to “(a) the extent to which - (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code”: [44].

(iv) Following Murray v Express Newspapers plc

[2008] EWCA Civ 446

[2009] Ch 481

, there is a well-established two-stage test for whether there has been misuse of private information: at stage one, the question is whether the claimant has a reasonable expectation of privacy in the relevant information; if so, at stage two, the question is whether that expectation is outweighed by the countervailing interest of the publisher’s right to freedom of expression: [47].

(v) Whether there is a reasonable expectation of privacy is an objective question. This is a “broad” question, which takes account of “all the circumstances of the case”. Such circumstances are likely to include, but are not limited to: (1) the attributes of the claimant; (2) the nature of the activity in which the claimant was engaged; (3) the place at which it was happening; (4) the nature and purpose of the intrusion; (5) the absence of consent and whether it was known or could be inferred; (6) the effect on the claimant; and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher: [49] and [50].

(vi) A relevant circumstance will be the extent to which the information is in the public domain. Information that was private may become so well known that it is no longer private. Whether this is so is a matter of fact and degree: [54].

(vii) The effect on the claimant must attain a sufficient level of seriousness for Article 8 to be engaged: [55].

(viii) Stage 2 involves a balancing exercise between the claimant’s Article 8 right to privacy and the publisher’s Article 10 right to freedom of expression in order to determine which should prevail in the particular circumstances of the case. Neither has “automatic priority”; nor is there a presumption in favour of one rather than the other. The question is “the extent to which it is necessary to qualify the one right in order to protect the underlying value which is protected by the other” and “the extent of the qualification must be proportionate to the need”: [56] and [57].

(ix) The following considerations are of particular importance in carrying out the balancing exercise: (1) an intense focus on the comparative importance of the specific rights being claimed in the individual case”; (2) the justifications for interfering with or restricting each right”; and (3) the proportionality” of the respective interference or restriction: [58].

(x) The extent to which publication is in the public interest is of central importance, which is reflected in section 12(4) of the HRA. In considering the public interest in publication, the contribution that publication will make to a debate of general interest is a factor of particular importance: [61] and [62].

[148]In my judgment the issues caused by the Claimant’s own disclosure of the key information about the Investigation Report and the payments figures at the 22 July Forum discussed at [135]-[145] above in the context of the breach of confidence claim apply with equal force to the misuse of private information claim.

[149]This is because, in essence, they mean that the Claimant does not have a realistic prospect of showing that after the Forum he had a reasonable expectation of privacy in the relevant information. The key information – the findings of the Investigation Report and the level of moorings fees paid – had initially been private. However, after the Forum it had become so well-known within the Club that it was no longer private, applying the principle in ZXC at [54]. Moreover, in light of the Claimant’s actions at the Forum it is not realistic to argue that the Defendant’s later disclosure of what was essentially the same information attained a sufficient level of seriousness for Article 8 to be engaged, applying ZXC at [55]. For these reasons the Claimant does not have a realistic prospect of satisfying Murray stage 2.

[150]Further, I do not consider that the Claimant has a realistic prospect of success in showing that any expectation of privacy he had in the relevant information was outweighed by the countervailing interest of the Defendant’s right to freedom of expression, so as to satisfy Murray stage 2.

[151]When assessing the comparative importance of the parties’ competing rights, it is highly relevant that(i) the Claimant had not regarded the information as confidential himself;

(ii) the Investigation Report revealed that the Claimant had been totally exonerated following an investigation such that its disclosure could not cause him any harm;

(iii) information about mooring fees is relatively predictable, commonplace and trivial information and the payment figures showed the Claimant had paid substantial rent for his barge mooring. Even if the Claimant’s Article 8 rights were engaged, any interference with them caused by the Defendant’s publication was very limited and/or justified.

[152]In contrast, the Defendant was, by placing the information on the Website, contributing to a debate on a matter of public interest within the Club, which is of “central importance”: ZXC at [61] and [62]. The level of interest is apparent from the fact that there had been a debate on the issue at the Forum and from the interest the Website attracted.

[153]Ms Kamil referred to the Claimant’s case that the Defendant published the Claimant’s private/confidential information selectively and in a manner that was apt to convey a misleading impression, with the exculpatory conclusions on the second page of the Investigation Report missing. However, given that(i) the Claimant had disclosed the correct exculpatory conclusions himself at the Forum; and

(ii) the Defendant had in fact uploaded the entire Investigation Report to the Website initially, as Claimant took screenshots of it (see [107] above) this is not a compelling factor in the Claimant’s favour.

[154]She also contended that even if there was any public interest in the Defendant’s publication of information to other members of the Club, the publication of such information on a public internet Website was unnecessary, excessive and disproportionate. Again I do not find this persuasive: given the almost entirely anonymous content on the Website it is unrealistic to contend that this would have been comprehensive, meaningful or of real interest to the public at large.

[155]Accordingly, the Claimant has no real prospect of succeeding on the misuse of personal information claim and the Defendant is entitled to summary judgment on it. (4). The UK GDPR claim

[156]The POC at [41] aver that the Defendant acted unlawfully by “collecting, disclosing and publishing” the Claimant’s personal data in the Investigation Report and the table of payments figures via social media and on the Website.

[157]The General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) was saved into UK law by section 3 of the European Union (Withdrawal) Act 2018 and section 3(10) of the Data Protection Act 2018 (which defines it as the “UK GDPR”).

[158]Personal data is defined by Article 4(1) of the UK GDPR as “any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person”.

[159]The Defendant accepted that when he sent communications or used documents containing the Claimant’s data on social media or the Website, he “processed” them, for the purposes of UK GDPR Article 4(2).

[160]However, he relied on Article 2(2)(a), which provides that the Regulation does not apply to “the processing of personal data by an individual in the course of a purely personal or household activity”.

[161]In Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd

[2017] EWCA Civ 121

at [76], the Court of Appeal held that: “…in construing the scope of the personal and household exemption, the balance must be struck between two competing entitlements to privacy: that of the data subject and that of the individual data controller. This in turn informs the scope of the personal and household exemption. It is not necessary to attempt to draw the line. But wherever the line is drawn I consider that activities relating to the management of a private block of flats in which the putative data controller resides (including the processing of his neighbour’s personal data in so far as they concern matters arising from or relating to the management of that block) fall within the scope of the exemption because they directly concern his private life and also directly concern his household”.

[162]Further, at [77], the Court observed that unduly restrictive approaches to the exemption would have unfortunate consequences: “...if an individual cannot rely on this exclusion he is prohibited from processing any personal data without registering with the Information Commissioner and, of if he fails to do so, he is guilty of a criminal offence. We must be cautious about criminalising what, for many people, are their ordinary activities”. (i).

(a) exemption to the Defendant’s use of social media

[163]Mr Hirst submitted that while the Claimant and the Defendant each had work and business activities, they were members of the Club as a “purely personal” choice of leisure activity, hobby, sport and recreation. The Defendant’s activities of posting on social media such as WhatsApp or Facebook are quintessentially personal and household activities: his WhatsApp use had been on his mobile phone, in the usual way, and the WhatsApp groups were used by members to exchange information relating to the Club.

[164]He relied on Harrison v Cameron

[2024] EWHC 1377 (KB)

, which involved a dispute between a private individual working in the property investment industry and a person who owned and operated ACL, a landscape gardening business. The parties had spoken several times on the telephone. The Defendant had recorded two of their conversations, during which the Claimant had threatened him. The Defendant subsequently shared the recordings with 12 people, who shared them further. The Claimant’s evidence was that the sharing of the recordings with several of his professional peers and competitors in the property investment industry had been done for the purpose of damaging his prospects in a deal to acquire a shopping centre in Chester, causing him financial loss in excess of £10 million: [2]-[5].

[165]Steyn J held that when the Defendant recorded the calls, that act of processing was “plainly done by him in his capacity as a director of ACL”; his decision to record the calls was “at least in part, for business reasons and, in any event, it was a business call recorded by him as director of ACL”; and the recordings constituted “personal data collected and held by ACL”: [75]. She continued:

“75. In my judgment, it is clear that when Mr Cameron sent those recordings of business calls (held by his company) to certain members of his family and friends, he was not acting in the course of “a purely personal or household activity”

. I accept that it is important not to construe article 2(2)(a) so narrowly that it intrudes on the right to private life of an individual who may, naturally, chat (including via text) with family or friends about their day at work. However, I do not consider that sharing a client’s recorded personal data, obtained by a company during a business call, as Mr Cameron did, is analogous to such a general chat between friends or spouses. 76. The CJEU has emphasised the word “purely” in the exception, which is reflected in recital 18. The activity in which Mr Cameron engaged was not merely seeking support and advice in respect of threats to his and his family’s safety. The activity was the sharing of personal data held by ACL in respect of its business; and seeking support and advice in relation to the termination of the contract. Accordingly, I reject the First Defendant’s contention that the data processing in respect of his family and friends fell outside the scope of the UK GDPR”.

[166]Mr Hirst argued that Cameron was entirely distinguishable from this case, given the business element. I agree. No such element is present here: the evidence shows that the WhatsApp group and main Facebook feed used by the Claimant were groups entirely internal to the private members of the Club.

[167]I am therefore satisfied that the Claimant has no realistic prospect of defeating the Defendant’s reliance on the Article 2(2)(a) exemption insofar as the Defendant’s use of social media is concerned. The Defendant is therefore entitled to summary judgment on this aspect of the UK GDPR claim. (ii).

(a) exemption to the Website

[168]Mr Hirst contended that the Article 2(2)(a) exemption also applied to the setting up of the Website. The Website was an amateur, Wordpress site, which he had constructed in his own time, paid for himself and registered to his home address.

[169]He relied on Tietosuojavaltuutettu v Jehovan todistajat-uskonnnollinen yhdyskunta (

Case C-25/17

)

[2019] 4 WLR 1

at [42]. There, the Court of Justice of the European Union (“the CJEU”) held that the collection of personal data during door-to-door preaching activities by members of a religious community was not processing in the course of a purely personal or household activity.

[170]However, the difficulty with this argument is that in Lindqvist (

Case C-101/01

) (2003) at [47], the CJEU held that the exception: “must…be interpreted as relating only to activities which are carried out in the course of private or family life of individuals, which is clearly not the case with the processing of personal data consisting in publication on the internet so that those data are made accessible to an indefinite number of people”.

[171]For these reasons the Claimant has a realistic prospect of arguing at trial that the processing of his data on the Website did not fall within the Article 2(2)(a) exception. This gives the Claimant a realistic prospect of success in the UK GDPR claim in respect of the Website such that neither strike out or summary judgment on it is appropriate. (5). Abuse of process (a): Abuse by virtue of earlier proceedings

[172]The Defendant’s initial position, as set out in Oloffs 1 and Mr Hirst’s Skeleton Argument for the hearing, was that the Claimant’s claims should also be struck out as an abuse of process under CPR 3.4(2)(b), in light of the Claimant’s earlier claim of KB-2024-001932. KB-2024-001932 included a claim for defamation in respect of the same publications as are relied on in the harassment in these proceedings; but no defamation claim has been included in these proceedings because the limitation period for such a claim has passed.

[173]Mr Hirst drew support from Khan at [69], where one of the reasons Nicklin J gave for refusing to make an interim injunction was that a defamation claim was being advanced “under the guise of a harassment claim” in order to avoid the defamation rule (that set out in Bonnard v Perryman

[1891] 2 Ch 269

); holding that if a claimant has a complaint about what has been said, rather than the manner in which the words are published, then “it is to the law of defamation…that s/he must turn”. Further, in McKennitt v Ash

[2008] QB 73

at [79], Buxton LJ observed that if a breach of confidence claim was brought where the “nub” of the case was a complaint about the falsity of the allegations, in order to avoid the rules of the tort of defamation, “then objections could be raised in terms of abuse of process”.

[174]Abuse of process is founded on two interests: “the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated”: Michael Wilson & Partners Ltd v Sinclair

[2017] 1 WLR 2646

at [48](1). Mr Hirst relied on the first of these interests, arguing that the Claimant in this case had engaged in an obvious attempt at “cause of action shopping” to avoid the strict one-year limitation period in libel claims. The limitation period was a policy restriction of equivalent deliberate effect to the defamation rule. It was, accordingly, an abuse of process for the Claimant to bring this second claim.

[175]The argument was not developed by Mr Hirst in oral submissions and my understanding is that it is no longer relied on by the Defendant. However, for the avoidance of doubt, I prefer Ms Kamil’s submission on this issue, for the following reasons.

[176]First, I do not accept that the principle referred to in Khan, by reference to the rule in Bonnard, extends beyond the context of interim injunctions. Indeed, that this is the case can be seen from the remainder of McKennitt at [79], where Buxton LJ made clear that the objections in terms of abuse of process “might” be raised “at the interlocutory stage” in an attempt to avoid the rule in Bonnard.

[177]Second, the claim form in KB-2024-001932 was not struck out as an abuse of process itself, but was set aside for deficient service, because the Claimant had served it at the Defendant’s business address instead of his residential address.This cannot properly be characterised as “inexcusable” conduct as required: Davies v Carillion Energy Services Ltd

[2018] 1 WLR 1734

at [52](1).

[178]Third, the merits of the Claimant’s allegations against the Defendant in these proceedings have never been adjudicated by the Court. If the Court were to strike out these proceedings in light of KB-2024-001932, it would amount to denying the Claimant “the opportunity of litigating for the first time a question which has not previously been adjudicated upon”, which is “prima facie a denial of the citizen’s right of access to the court”: Johnson v Gore-Wood

[2002] 2 AC 1

at 59D–E, per Lord Millett.

[179]Fourth, KB-2024-001932 was terminated at a very early stage, before the Defendant filed a Defence. Therefore, this claim would impose a very limited additional burden on the Defendant and the Court. It would not constitute any “unjust harassment” of the Defendant (see Johnson at 31C, per Lord Bingham), given that he had, to date, not answered the Claimant’s case on its merits and had been adequately compensated in costs for his involvement in KB-2024-001932. The case was comparable to Cranway Ltd v Playtech Ltd

[2008] EWHC 550 (Pat)

in this respect: see Cranway at [22].

[180]Accordingly, applying the necessary “broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case” (Johnson at 31C–D, per Lord Bingham), this claim is not an abuse of process by virtue of KB-2024-001932.

(b) : Jameel abuse

[181]In Tinkler v Ferguson

[2020] EWHC 1467 (QB)

at [46]-[59] summarised the key principles relating to the concept of Jameel abuse to be derived from the authorities, of which the following are pertinent to this application:(i) The principle of Jameel abuse allows the Court to stay or strike out a claim “where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures”; where “the game is not worth the candle”; where a claim “is obviously pointless or wasteful”: [46].

(ii) The jurisdiction should only be exercised in “exceptional cases”. The Court should “not be too ready to conclude that continued litigation of the claim would be disproportionate to what could legitimately be achieved”. Rather, the conclusion must be that it is impossible “to fashion any procedure by which that claim can be adjudicated in a proportionate way”: [47].

(iii) The claim’s value is not just its monetary value. Rather, “[i]nherent in the value of any legitimate claim is the right to have a legal wrong redressed. The value of vindicating legal rights – as part of the rule of law – goes beyond the worth of the claim. The fair resolution of legal disputes benefits not only the individual litigants but society as a whole”: [48].

[182]On the facts of this case, Mr Hirst drew support from the following:(i) the Defendant had ceased to be part of the WhatsApp groups in mid-2023;

(ii) he had deactivated the Website in late February 2024 and desisted from making any comments about the Claimant since then; and

(iii) at the pre-action stage before this claim was issued, he had offered to provide written undertakings to not repeat the alleged course of conduct or anything similar or instruct others to do so (other than in the course of the ongoing procedure concerned with his expulsion from the Club), and to provide an apology to the Claimant.

[183]On that basis, he argued that the claim was as a “textbook example” of Jameel abuse: the Claimant would not stand to achieve, at least not without immense expense and cost in terms of court time, more than was being offered to him on an open basis to compromise his claims at the pre-action stage. The claim was comparable to Ansari v Knowles

[2013] EWCA Civ 1448

, where, the Court of Appeal considered an argument to the effect that a claim should be struck out as a Jameel abuse on the basis that the claimant was unlikely to obtain any significant further relief than that which he had already achieved elsewhere: [14].

[184]Further, even if the claims succeeded, it was unlikely that the Claimant would receive any more than nominal damages. This was because(i) damages are not available for damage to reputation, which had always been the nub of the Claimant’s complaints;

(ii) general damages for harassment by speech are relatively low (as, he contended, was illustrated by the table in Gatley on Libel and Slander (13th edition, 2022) at Appendix 3, Part 4); and

(iii) any damages award the Claimant would be reduced by the Claimant’s own disclosures of allegedly confidential/private information; the historic nature of the wrong; and the open undertakings offering vindication and assurances which were rejected.

[185]Against that, given the scope of the harassment claim and the other causes of action, the legal costs of trying the claims would be substantial. The voluminous evidence produced for this application showed as much. He estimated that the parties could, conservatively, spend £150,000 each, to litigate the claims to trial.

[186]Finally, he contended that there was no realistic prospect of an injunction here in the absence of a threat of repeated conduct or publication, as required: Citation plc v Ellis

[2012] EWHC 549 (QB)

at [28]-[31]. Further, to the extent that the Claimant remained concerned that certain pages from the Website had been automatically archived by the Wayback Machine tool, the Claimant could easily request the removal of the pages rather than seek an injunction.

[187]Had I been required to consider this as a standalone application separately from the summary judgment application, I would have concluded that this is not an “exceptional” case that warrants the exercise of the Jameel jurisdiction, I would not have struck them out as an abuse of process under CPR 3.4(2)(b), for the following reasons.

[188]First, there is no proper basis for the Court to conclude at this stage that “no real or substantial wrong has been committed” in this case. On the contrary, the Claimant’s pleaded case at its highest made serious and substantial allegations against the Defendant, including allegations of deliberate, malicious and persistent conduct targeted at him.

[189]Second, it was not necessarily the case that the Claimant would only recover nominal damages. As Ms Kamil highlighted, Gatley includes examples of comparable cases of harassment where awards in the broad range of £25,000-£65,000 have been made (see, for example Triad Group Plc v Makar

[2020] EWHC 306 (QB)

and Davies v Carter

[2021] EWHC 3021 (QB)

). In any event, because the Claimant’s case was that, over a substantial period of time, the Defendant had run a public campaign of harassment against him, including the persistent publishing of false allegations, the claim was valuable to the Claimant beyond its financial value. Nicklin J’s observations that the “the value of any legitimate claim is the right to have a legal wrong redressed” and that the “value of vindicating legal rights…goes beyond the worth of the claim” were applicable.

[190]Third, this was not a case of entirely historic conduct: not only do the publications on the Website remain accessible to the public through Wayback Machine tool, but the undertakings the Defendant offered did not extend to removing the archived material, and the Defendant sought to expressly reserve the right to continue making the same allegations to the Club’s ongoing investigation.

[191]The effect of my judgment is that the only claim that will go forward is the Claimant’s UK GDPR claim in respect of the Website. My provisional view is that litigating this claim alone, rather than the full suite of claims initially advanced by the Claimant, does amount to a Jameel abuse, for the reasons advanced by Mr Hirst at [183]-[186] above. However, I have afforded the parties the opportunity to make written submissions on this issue when dealing with other consequential matters, after the handing down of this judgment. I will then make a final decision on this issue on the papers.

Conclusion

[192]Accordingly, for all these reasons, the Defendant’s application for strike out under CPR 3.4(2) is dismissed.

[193]However, his application for summary judgment under CPR 24.3 is granted in respect of the Claimant’s claims for harassment, breach of confidence and misuse of private information. It is also granted in respect of the UK GDPR claim insofar as it relates to the Defendant’s use of social media, but not the Website.

[194]I reiterate my thanks to counsel for their assistance.