Neocleous v Jones [2011] EWHC 3459 (QB)

[2011] EWHC 3459 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 December 2011
Before
THE HONOURABLE MR JUSTICE EADY
Case No HQ11X03802
Between
NEOCLIS NEOCLEOUSClaimantSTEPHEN JONESDefendantEDWIN COE LLPClaimantsSTEPHEN JONESDefendant
Jonathan Barnes (instructed by Edwin Coe LLP) for ClaimantsThe Defendant appeared in person for in personHearing Hearing date: 15 December 2011
JudgmentMr Justice Eady :
[1]There are now before the court two sets of proceedings. The first (No HQ11X03802) is a claim by Neoclis Neocleous, a solicitor with Edwin Coe LLP, against Mr Stephen Jones. The second (No HQ11X04457) involves Edwin Coe LLP and David Greene (as representative for the members and employees of Edwin Coe LLP) as the Claimants, also seeking remedies against Mr Stephen Jones as Defendant. Both claims were intended to restrain Mr Jones from harassing the various Claimants, and in particular by using the Internet for that purpose.[2]On 15 December 2011, I heard what were effectively cross-applications for injunctive relief. Mr Jones issued an application on 25 November in Claim No HQ11X03802 seeking an injunction against Edwin Coe LLP. This is anomalous for at least two reasons, since Edwin Coe LLP is not a party to those proceedings and, moreover, the application notice describes Mr Jones for some reason as being the Claimant (whereas he is in fact the Defendant).[3]In those proceedings, on 21 October 2011, Mr Neocleous (being the actual Claimant) obtained an injunction against Mr Jones protecting him against harassment. This was granted by Butterfield J.[4]Mr Jones also seeks a form of civil restraint order against Edwin Coe LLP and applies for Mr Neocleous’ claim to be struck out on the basis of alleged abuse of process.[5]Quite separately, the Claimants in the second action have issued an application notice dated 9 December 2011, whereby they seek an injunction against Mr Jones restraining him from any act of harassment. Although this relief would be similar to that obtained already by Mr Neocleous from Butterfield J, he makes no renewed application in his own right.[6]Leaving aside the procedural difficulties for the moment, Mr Barnes on behalf of the Claimants in the second action has submitted that Mr Jones’ application against them would be not well founded as a matter of substance. Mr Jones bases his application upon the proposition that Mr Neocleous sent him an email in the following terms:
“Dear Sir It has come to our attention that you are producing numerous postings on the internet about Mr Neocleous and we demand that stop forthwith and remove all your websites. As an added situation it has also come to our attention that we have seen some of the comments about you on the internet and you are quoted as being a Paedophile and a Rapist, you need to be very careful and remove all your posts and websites as we intend to bring action after action against you until such a point that you are begging us for forgiveness. Mr Jones playing around with wealthy legal firms is not a good idea; we can bury you at will, any time that we want, the point being we have far more power than you will ever have and the ability to take you through every single court in the land as many times as we like on any accusation we feel appropriate. We hope that we make our points very clear to you and you will stop your foolish behaviour. Yours Faithfully”
The email appears to come from Mr Neocleous and to have been dated 11 October 2011. It would obviously be a very silly letter for a solicitor to write and Mr Neocleous denies being responsible for it. Mr Barnes submits, with some force, that the style is more in keeping with that of Mr Jones and invites the inference that he has used his undoubted skills to create it and to present it as though it came from Mr Neocleous. Obviously, at this stage, it would not be appropriate for me to come to any final conclusion on that aspect of the case. Nevertheless, it is always necessary to make some evaluation of evidence placed before the court for the purposes of obtaining interlocutory relief. Yours Faithfully”[7]The suggestion made against Mr Jones is that he produced some screen shots of the supposed email in order to create a false evidential foundation for his application. Despite his expertise, he now says that he is unable to provide the original because he deleted it. It will suffice to say, for present purposes, that the document fails to carry conviction as evidence against Mr Neocleous.[8]A further, more general, allegation is that Mr Neocleous has instructed other people to harass Mr Jones. Again, however, there is no compelling evidence to support this proposition. Strong evidence would be required, of course, because it would be grossly improper conduct on the part of a solicitor to give any such instruction.[9]Mr Jones’ application is thus doomed to failure, not only because Edwin Coe LLP is not a party to the action in which he seeks the relief, but also because there is no evidence to which it is possible to attach any weight in support of the allegations of misconduct.[10]Mr Barnes made a number of additional points. Since Edwin Coe LLP finds itself embroiled in litigation with Mr Jones, it is hardly appropriate for it to be restrained from communicating directly with him in that context. I suggested in the course of Mr Jones’ submissions, since he indicated that he has no further wish to cause trouble for Edwin Coe LLP or Mr Neocleous, that it might be sensible to reach some form of settlement and for all parties to move on. Unfortunately, however, this suggestion bore no fruit and the proceedings will have to take their course – which inevitably involves further communication with one another.[11]I can see no grounds for striking out the proceedings brought by Mr Neocleous, since he is entitled to pursue the matter in order to claim the remedies open to him in the context of a harassment claim; not least, of course, a permanent injunction along the lines of that granted by Butterfield J on an interim basis.[12]I was told by Mr Jones in the course of his submissions that he is in great financial difficulty and indeed facing bankruptcy. It would follow that he is not able to offer meaningful cross-undertakings, such as would ordinarily be expected on the part of an applicant for interim relief. That is a fair point for Mr Barnes to make, but in the case of a genuine claim supported by solid evidence, sometimes the court will be inclined to overlook a litigant’s impecuniosity in the wider interests of achieving the overriding objective. This is not such a case.[13]The Protection from Harassment Act 1997 provides for a defence where the particular “course of conduct” relied upon can be shown, in all the circumstances, to have been no more than reasonable. That is plainly an argument open to Mr Neocleous and Edwin Coe LLP in the present circumstances, since their only reasons for communicating with Mr Jones are to protect the interests of themselves and their clients in the face of multiple threats to cause them harm.[14]For all these reasons, I have no difficulty in coming to the conclusion that Mr Jones’ application for interim relief should be rejected. I can properly conclude also that it was totally without merit.[15]On the other hand, Mr Jones has provided ample material (exhibited in evidence before the court) to bear out the Claimants’ apprehension that he intends to use his IT skills to go on harassing both the Claimants and their clients. There is no need for me to set out in this judgment any of the threats, but they have been expressed in the clearest terms. I have already recorded, of course, Mr Jones’ indication to me that he would desist from threats, harassment or similar communications in the future, but in the absence so far of clear and unequivocal undertakings to the court it seems clear that the Claimants are entitled to pursue such remedies as are open to them. There have been multiple threats and multiple communications on the Internet which undoubtedly fulfil the criteria for a “course of conduct” and for harassment. Indeed, some of the threats explicitly make clear Mr Jones’ intention of causing maximum anxiety, inconvenience and commercial damage to the Claimants (to say nothing of their clients). The evidence relied upon is in the form of witness statements from Mr Calverley and Mr Neocleous.[16]The Protection from Harassment Act was amended by the Serious Organised Crime and Police Act 2005, s.125, so as to provide for the protection of classes or groups:
“(1A) A person must not pursue a course of conduct – (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above) – (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.” (a) which involves harassment of two or more persons, and (b) which he knows or ought to know involves harassment of those persons, and (c) by which he intends to persuade any person (whether or not one of those mentioned above) – (i) not to do something that he is entitled or required to do, or (ii) to do something that he is not under any obligation to do.”
[17]Whereas Mr Neocleous’ original claim was founded upon s.1(1) of the 1997 Act, it was felt more appropriate to pray in aid the terms of the later provisions, contained in s.1(1A) of the statute, when it came to protecting the interests of the members and employees of Edwin Coe LLP and their clients. There is, however, very little difference in practice.[18]The defences originally to be found in s.1(3) of the 1997 Act have been made equally applicable to claims founded upon s.1(1A). They cover situations where the relevant course of conduct was pursued for the purpose of preventing or detecting crime, or pursued under any enactment or rule of law, or where the course of conduct could be characterised as “reasonable”. None of these has any relevance to the activities of Mr Jones. He clearly feels a considerable sense of frustration and injustice over the way he was treated, or claims to have been treated, by one of Edwin Coe LLP’s clients nearly three years ago. While I appreciate Mr Jones’ strength of feeling on the matter, and the impact which he says it has had upon his business and family life, it is not a matter which is relevant for present purposes.[19]It is to be noted also that the later claim involves a representative action, in accordance with the provisions of CPR 19.6, because of the plurality of the persons now seeking protection. There is nothing surprising about this and my attention was drawn to the recent decision of Tugendhat J in Law Society v Kordowski [2011] EWHC 3185 (QB) where a similar procedure was adopted.[20]It has long been recognised, of course, that harassment under the 1997 Act is not confined to “stalking”, to which it was primarily directed, but would also include harassment by way of publication: see e.g. Thomas v News Group Newspapers Ltd [2002] EMLR 78. Where harassment takes this form, however, it is necessary to remember that the defendant’s rights under Article 10 of the European Convention are likely to be engaged. Accordingly, it is appropriate for the court to apply the test identified in s.12(3) of the Human Rights Act 1998, as explained by the House of Lords in Cream Holdings Ltd v Banerjee [2005] 1 AC 253. Before granting the relief sought, therefore, I should ask myself whether the Claimants have established that they are “likely” to succeed at trial (if matters progress that far) in obtaining permanent relief of a similar nature. It is right to say that this test imposes on the court sometimes a quite difficult task, in the sense that it is necessary to form a judgment on partial or incomplete evidence. In the present case, however, that is not such a problem, since the many email communications from Mr Jones make clear his intentions (or, at least, his intentions as they were at the times of the relevant communications) and it is also clear from the nature of his activities that there has been a course of conduct well within the scope of “harassment”.[21]In the course of his submissions, Mr Jones referred indirectly to the principle applying in defamation proceedings to the effect that the court will refuse an injunction where a defendant claims that he intends to prove the defamatory allegations to be true: see e.g. Bonnard v Perryman [1891] 2 Ch 269 and Greene v Associated Newspapers Ltd [2005] QB 972. Yet the present proceedings are concerned not so much with the protection of reputation, but rather with the need to protect various persons or classes of persons from harassment. The use to which Mr Jones’ Article 10 right has been put, so far, is as a weapon by which to vent his frustrations and cause maximum inconvenience and damage to those concerned. So far as reputation is concerned, I need hardly add that the Claimants would not seek to prevent Mr Jones from making appropriate complaints to relevant authorities such as, in particular, the Solicitors Regulation Authority – if he has some genuine complaint of misconduct to make in respect of any of the Claimants’ conduct. The claims are thus directed towards a quite different mischief from that of warding off injury to reputation.[22]Furthermore, the draft order placed before me makes adequate provision for the protection of Mr Jones’ legitimate interests in, for example, seeking legal advice or pursuing his defence(s) in the proceedings brought against him.[23]Whereas I would much have preferred to see the proceedings brought to a satisfactory conclusion by agreement, in view of Mr Jones’ relatively recent change of heart, for the moment I think it appropriate to grant the relief sought by the Claimants for the purposes of the legitimate protection of their interests and those of their clients. I would not, however, wish in any way to discourage further discussions with a view to achieving a truce and ultimately the peaceful disposal of this time-consuming, expensive and unnecessary dispute.