GH Cornish LLP & Ors v Smith [2013] EWHC 3563 (QB)

Case No HQ12X00767

[2013] EWHC 3563 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 20/11/2013

Before

THE HONOURABLE MR JUSTICE DINGEMANS

Between

GH CORNISH LLPClaimants

HARVEY BARRY SHULMANClaimant

JENNIFER BARBARA SHULMANClaimant

BARRIE THOMAS SMITHDefendant

Harvey Starte (instructed by GH Canfields LLP) for Claimants

Barrie Thomas Smith (in person) for Defendant

Hearing Hearing dates: 29, 30, 31 October, 1 and 4 November 2013

Judgment

Mr Justice Dingemans :

Introduction

[1]This is the hearing of claims by GH Cornish LLP (“Cornish”), a firm of solicitors, Harvey Barry Shulman (“Mr Harvey Shulman”), a partner in Cornish, and Jennifer Barbara Shulman (“Mrs Jennifer Shulman), a former partner in Cornish, and a partner in GH Canfields LLP (“Canfields”), another firm of solicitors. Mr Harvey Shulman and Mrs Jennifer Shulman are husband and wife. Canfields has acted as solicitors for the Claimants in this action and there is an overlap between the ownership of Cornish and Canfields.

[2]The claims are made against Barrie Thomas Smith (“Mr Smith”). He was the Practice Manager at Cornish between 2006 and July 2011. He had also worked at Graham Harvey, one of the predecessor firms to Cornish from about August 2006 assisting with accounting and IT systems.

[3]Mr Smith left Cornish pursuant to a compromise agreement dated 22 July 2011 (“the compromise agreement”). It is apparent that the negotiations between the parties had dragged on for a considerable period, and both sides were obtaining legal advice.

[4]Relations between the parties, which do not ever seem to have been good, deteriorated significantly in the period from January 2011 to July 2011. It became very apparent from the evidence given at the trial before me that Mr Harvey Shulman and Mrs Jennifer Shulman on the one side, and Mr Smith on the other side, have no mutual regard for the other, or for the other side’s abilities. Both sides claim that the other side’s actions and statements has made them ill.

[5]Although a number of claims were pleaded in the Particulars of Claim the claims which were pursued in closing submissions at trial were for: breach of the terms of the compromise agreement in that Mr Smith retained confidential documents belonging to Cornish; and harassment of Mr Harvey and Mrs Jennifer Shulman, which harassment was also a breach of the compromise agreement. The claims are denied by Mr Smith.

[6]The claim for breach of the compromise agreement involves a short point of construction of the compromise agreement because it is common ground that Mr Smith has retained documents, and the question is whether he was entitled to do so.

[7]The claim for harassment involves a detailed consideration of evidence. It is common ground that before the compromise agreement Mr Smith had published materials in sub-folders on a website which he operated which the Claimant described as “viciously abusive and threatening” and the Defendant described as “immature”, “childish” and a “wind up”. However the material which forms the basis of the claim for harassment takes the form of anonymous emails, texts and letters which the Claimants allege were sent by Mr Smith, and which he denies sending.

[8]There is no expert forensic evidence to prove this case and the Claimants rely on:(1) the facts that Mr Smith was interested in the subjects of the emails, texts and letters;

(2) the apparent absence of persons other than Mr Smith interested in the documents;

(3) the fact that Mr Smith has, in the past published other offensive materials.

[9]Mr Smith points out that even on the Claimants’ case there must have been someone involved in providing him with information, and he says it is perfectly clear that that other person could have been sending the documents. Mr Smith says that he had no involvement in sending the contested emails, texts and letters. Procedural matters

[10]The trial commenced on Tuesday 29 October 2013, but there were a number of outstanding applications. After argument, in which the mutual distrust between the parties became clear, the applications were resolved.

[11]The Claimants had applications:(1) for permission to amend Particulars of Claim. In the final event this was not objected to and permission was granted;

(2) to rely on the 3rd and 4th witness statements of Mrs Jennifer Shulman. This was not objected to, and permission to rely on the witness statements was granted;

(3) to commit Mr Smith for alleged contempt of an interim injunction order. It was agreed that directions for the hearing of this committal should be adjourned until after this judgment;

(4) to set aside witness summonses issued by Mr Smith. In fact part of the purpose of this application was to emphasise that Mr Smith was intending to call witnesses from whom no statement or witness summary had been obtained, and this was resolved, as appears below;

(5) to rely on a statement from Andrew Blundy as hearsay because he was unwell. In the event Mr Blundy attended to give evidence.

[12]The Defendant had applications:(1) to amend the Defence. Although the application was originally opposed on the basis that the Claimants had not seen it, this appeared to be a misunderstanding, and in the event the objection was not pursued and permission was granted;

(2) to inspect originals of anonymous letters received at 1 Brick Court Chambers, the Chambers at which Mr Starte practices. This was agreed and inspection took place on the second day of the hearing;

(3) to rely on the 11th and 12th witness statements of Mr Smith. After a short adjournment for the Claimants to consider the statements, this was not objected to, and permission was granted. It was noted that the 11th witness statement mainly dealt with the contested contempt application;

(4) for relief from sanctions for failing to serve witness summaries from persons that Mr Smith intended to call to give evidence. By letter dated 4 September 2013 Canfields had noted that unless witness summaries were served shortly, objection would be taken. Mr Smith said that he had ignored the letter dated 4 September 2013 because he considered that Canfields had misled him in the past. In the course of submissions it became clear that many of the witness summonses had been served by Mr Smith under the misapprehension that he would be able to cross-examine the witnesses he called. After time to reflect on the position, and in the light of the need to serve witness summaries if the application was to be pursued, Mr Smith did not pursue the application for the majority of the witnesses. That left potential witnesses to the receipt of the anonymous letters at 1 Brick Court. After hearing further evidence in the trial, Mr Smith stated that he did not need to summons anyone.

[13]Issues of timetabling were also addressed. Towards the end of the trial the parties did begin to co-operate, and further procedural issues were resolved without the need for delays and rulings. The issues

[14]It now appears, following the refinement of the parties’ respective positions, and the helpful submissions from both Mr Starte on behalf of the Claimants and Mr Smith on his own behalf, that the following matters are in issue:(1) whether Mr Smith had wrongly retained documents in breach of the terms of the compromise agreement;

(2) whether Mr Smith has harassed Mr Harvey and Mrs Jennifer Shulman by: (a) sending emails pretending to come from Sergei Bragin; (b) sending emails pretending to come from Nicolas Shulman (a son of Mr Harvey and Mrs Jennifer Shulman, and also a solicitor working in Canfield); (c) sending emails from his own email address; (d) sending anonymous texts to Mr Harvey Shulman; (e) sending anonymous letters dated 20 March 2013 to the clerks at 1 Brick Court; (f) sending anonymous letters to Pauline Curran, a legal secretary at Canfields, on 3 May 2013; (g) sending anonymous letters purporting to be dated 18 April 2013, but received on 8 July 2013;

(3) whether sending the Sergei Bragin emails was also a breach of the compromise agreement. The absence of forensic expert evidence

[15]As recorded above, it is important to note that despite the fact that the parties have had a fully contested 4½ day trial, there has been no expert forensic evidence adduced on either side. In circumstances where the issues include: whether Mr Smith sent emails purporting to come from someone else; whether Mr Smith sent anonymous text messages; and whether Mr Smith sent anonymous letters; this absence of such expert forensic evidence might be thought to be surprising.

[16]This is particularly so given that Miss Jan Collie, of Discovery Forensics Limited, was instructed on behalf of the Claimants, and she carried out a number of investigations. She produced reports, and some, but it seems that not all, of those reports are in the trial bundle. However the Claimants decided to call Miss Jan Collie as a witness of fact only to deal with: what she found on an inspection of a work computer which had been mainly, but not exclusively, used by Mr Smith; and screenshots of mobile telephone messages.

[17]It is true that there is a sometimes fine distinction between evidence of fact and expert evidence, especially where the relevant expert evidence is directed to what was identified on an examination of an object, see generally Phipson on Evidence, 17th Edition, at 33-10. However the distinction was not observed in the witness statement served by Miss Collie, which, it is now common ground, included some evidence of opinion. This means that a decision to call her as a witness of fact because she had no expert evidence to give cannot have been the reason that she was not called as an expert.

[18]It is apparent from Miss Collie’s evidence that she felt disadvantaged by the approach taken by the Claimants. She was not able to address all of the matters that she wanted to address, but only the matters which had been put into her witness statement. I was told that the witness statement had been prepared, with exhibits, by solicitors at Canfields, including Mr Mark Shulman, also a solicitor and son of Mr Harvey and Mrs Jennifer Shulman. It is right to record that Miss Collie checked the witness statement and was content that it was accurate, but some errors were made as a result of the way in which the witness statement and exhibits had been compiled. For example Miss Collie’s witness evidence about timings of certain matters could not be derived from the material exhibited to her witness statement. The only way that she could give evidence to support the timings was to say that she had checked it by reference to a browser history, which was not exhibited to her witness statement but which I was told had been exhibited to a report which I was not shown, and that her statement was accurate. It was also difficult, because of the approach taken to the witness statement, to ascertain where some documents which were exhibited had come from.

[19]The way in which Miss Collie’s statement was put together was particularly unfortunate in circumstances where Miss Collie had done her work in accordance with recommended guidance published by the Association of Chief Police Officers (“ACPO”) to ensure that the underlying digital material and metadata on the computer was not corrupted. I was also denied the benefit of Miss Collie owing duties to the Court. I should immediately record that I had no reason to doubt Miss Collie’s integrity or her evidence so far as she was able to give it, but Miss Collie part demonstrated her integrity by complaining about the fact that she was not giving her evidence as an expert, and by complaining about the way in which some of her statement had been assembled and material missed out.

[20]Miss Collie confirmed that she had carried out investigations into what was termed “malware”, namely computer software which recorded activities carried out by users of computers, and produced a report for her own purposes but was not asked to produce a report for the Claimants. Any such report must have been contemplated in relation to the claim for trespass to the Cornish computer system set out in paragraphs 3 to 9 and 16 of the Amended Particulars of Claim. As it was the claim was not in the event pursued at the trial, although it had been set out in the Opening Skeleton Argument at paragraphs 3-5. This only became clear when I checked with Mr Starte whether he had questioned Mr Smith about this claim. I was not told in clear terms that the claim was being abandoned, or why it had been made, and why it was not being pursued. In circumstances where I am invited to find serious wrongdoing on the part of the Defendant by reference to inferences to be drawn from the known facts, this absence of an explanation is unfortunate. I also know, from Miss Collie’s evidence that she carried out inspections of other work computers at Cornish. However I was not even told that there was nothing of relevance found. Given the apparent absence of a good reason for calling Miss Collie as an expert witness, and the absence of an explanation for the failure to pursue the claim for trespass to the computers by installing “malware”, I have formed the distinct impression, and find, that I have not been told all that I could be about the forensic investigations which were carried out. I accept it is for a party to adduce the evidence that it chooses to prove its case, but in circumstances where there is no direct evidence, gaps in the evidence make the drawing of reliable inferences more difficult.

[21]I should also record that other documents said to come from Mr Smith’s work computer were produced and exhibited to the statement from Mr Harvey Shulman. Mr Harvey Shulman was very frank about his absence of his computer skills, and some documents that I saw showed that Mr Harvey Shulman had limited computer skills and a very limited ability to type. This meant that many of the exhibits to Mr Harvey Shulman’s statement really had nothing to do with him, save that he produced them. Later evidence showed that these exhibits had been produced by Mr Mark and Mr Nicolas Shulman. All that Mr Harvey Shulman could say was that the documents were produced to him, but he could give me no details of where they had come from.

[22]In circumstances where it is important to know how a document has been recovered and produced in order to make a fair assessment of what it purports to show, this approach to producing documents caused obvious difficulties. It was possible, from using other documents, to show on occasions that a computer document produced by Mr Harvey Shulman was a proper record of a transaction on the computer. An example was the email timed at 12:26 on 20 June 2011 headed “Re: Serious matter” from Tom Smith to his home email address in the bundle at 3/852. This corresponded with the email sent by Mr Smith from his work email address to Mr Gonsalves, and copied to others including one of Mr Smith’s home email addresses (the defamation.org email address) at 3/688 in the bundle. I have also taken at face value documents purporting to show registration of domain names, despite Mr Smith’s complaints about a lack of provenance for the documents. This was because there was nothing to show that they were not accurate. However other documents were less easy to check.

[23]The Claimants’ approach created unnecessary suspicions on the part of Mr Smith about where the Claimants had got some documents from. Mr Smith had been making complaints in his Skeleton Arguments about the fact that Mr Mark Shulman and Mr Nicolas Shulman were not giving evidence. Indeed Mr Mark Shulman was one of the witnesses on whom Mr Barrie Smith had served a witness summons.

[24]The difficulties caused by the approach of the Claimants to the production of documents can be illustrated by two matters. First there was in the trial bundle (at 4/1154-1158) an email which was dated 18 September 2006. The print out shows that it is 1 of 4 pages, but it is tacked on to pages 4 of 5 and 5 of 5. The Claimants said that this was one of the confidential documents wrongly retained by the Defendant, and I will return to that issue. Mr Smith said that he accepted that part of it was from his discovery, but only the first 3 pages, which he showed me in his bundles. No one was able to explain to me how the same documents came to be in different formats in the bundles. It is obvious that when large bundles of documents are being put together it is very easy for papers to get miscopied, and placed into the wrong parts of bundles. However when part of the case depends on showing who produced what, and when, it creates difficulties in making findings where there is no common ground and there is no audit trail showing where documents were located.

[25]In the course of the trial I was also handed by the Claimants one particular document which purported to be an order confirmation sent by Amazon to one of Mr Smith’s personal email addresses (which included the name “duffree”) dated 28 July 2009 at 15.55 hours. The Amazon order itself was for a hidden colour spy pinhole pen and hidden colour spy pinhole watch, and related to an issue, considered below, about Mr Smith and his use of spy cameras.

[26]The document had, in the top right hand corner, tsmith@graham-harvey.co.uk. This was a work email address which Mr Smith had used at Graham Harvey, the firm he had ceased working for in 2006. In these circumstances it was not obvious how Mr Smith’s personal “duffree” email account could have been printed from the tsmith@graham-harvey.co.uk account. There was no provenance for this document, and Mr Smith said he doubted where it had come from, and then suggested that this showed that persons working on behalf of the Claimants had accessed his email accounts.

[27]As it was, on the final day of the hearing on Monday 4 November 2013, when Mr Smith was making his closing submissions, he gave evidence that he had not used that account since 2006, and that he did not have his duffree account in 2006, and that his email account must have been wrongly accessed. Mr Starte, perfectly properly, took the point that Mr Smith’s statement about this document was evidence, which had not been led at trial. As this point had arisen during the trial, I permitted Mr Smith to go back into the witness box to confirm in evidence what he had said in submissions, and Mr Starte asked some questions about this. I also permitted Mr Mark Shulman to give evidence about the circumstances in which the document had been recovered.

[28]Mr Mark Shulman gave evidence that he had in fact been worrying on Sunday 3rd November that I might think, given the absence of evidence about where some documents had come from, that there had been improper access of Mr Smith’s duffree email account. This may have been because I had asked, at the conclusion of the evidence on the Friday, for assistance from the parties on what, if any, inferences should be drawn from the failure to adduce certain evidence. Mr Starte had considered calling Mr Mark Shulman on Friday to deal with the provenance of some documents, but had not done so.

[29]In the event Mr Mark Shulman was able to explain that independent computer experts, from whom I did not hear evidence, had moved data found on work servers and remote work servers or clouds, onto a database. As I understood it the database had been put into a gmail account to make it searchable, and Mr Smith’s data had been “badged” under the tsmith@graham-harvey.co.uk email, because that was the first email account that Mr Barrie Smith had operated in firms owned or controlled by the Shulmans. It is right to record that a cryptic reference to this had been made in the electronic disclosure form which had been produced by the Claimants. All of this meant that the document had come from data retrieved from Mr Smith’s work computer, but it was apparent that Mr Mark Shulman’s evidence was dependent on other evidence about steps taken to retrieve the data, and that other evidence was not adduced. Mr Mark Shulman’s evidence meant that Mr Smith was unable to show that there had been improper access of his email accounts, but it also meant that relevant evidence to show how documents were produced was not available.

[30]It should also be recorded that Mr Smith did not adduce any expert forensic evidence, notwithstanding invitations made by the Claimants to inspect computers. Mr Smith said he had no funds with which to instruct an expert, and it is fair to record that he represented himself.

[31]I also note that I was not told of any steps to find out from internet providers from which either the Sergei Bragin or Nicholas Shulman purported emails had been sent, where the instructions to establish the emails accounts had come from. It was apparent from Miss Collie’s evidence that there must have been relevant metadata showing this which could have been identified and traced. It was also apparent from RW’s evidence that she was able to get information about a person responsible for a website, but did not do so because of her fear that such action would aggravate matters. There was no similar justification available to the Claimants for failing to take these steps, because they had the protection of interim orders.

[32]I was not told of any steps to discover details about the mobile telephone from which the text messages had been sent. There were suggestions that it might have been a pay as you go mobile phone, meaning that inquiries were unlikely to identify a subscriber. However that did not prevent lawful steps being taken to trace the phone, or identify the location from which the texts had been sent. I was told that it was considered to be too expensive to take steps to investigate the phone, but in circumstances where there was no evidence establishing this, and where the Claimants have been represented for a 4 day trial and incurred substantial expenditure, I did not consider the explanation to be satisfactory. This is particularly so where Miss Collie’s evidence made it plain that clear expert forensic evidence can reduce factual disputes.

[33]In addition there was no forensic evidence to assist me in relation to the letters received by Mrs Pauline Curham, Mr Harvey Shulman or 1 Brick Court Chambers. It became clear, following Mr Smith’s inspection of some of the anonymous letters, that they had been laminated after receipt. Mr Mark Shulman, in his late evidence, disclosed that some attempts had been made to get fingerprints from the envelopes, but it had not been successful. I was only told of this investigation to meet Mr Smith’s complaint that the document was now laminated. This was another reason for my concern, identified in paragraph 20 above, that I was not being given a full picture about relevant investigations.

[34]The envelope containing the letter sent to Mr Harvey Shulman which he received in early August 2011 appeared to have been thrown away, although it is right to record that although Mr Harvey Shulman suspected that Mr Smith had sent the letter, he was hoping that matters would die down, and was not intending to pursue a claim in respect of it at that time (indeed it is not a formal part of the claim).

[35]It appeared that no one had examined the envelope in which a letter had been sent to Mrs Curham, despite the fact that she had partly relied on the way in which the address had been typed, and the use of a stamp, in forming her own subjective view that Mr Smith must have sent it. The envelope was not even disclosed until part way through Mr Smith’s cross examination of Mrs Curham. There was no comparison of the typing, or printing format, with Mr Smith’s usual printed material, even though there was an abundance of such materials in the trial bundles.

[36]As noted above, before Mr Mark Shulman had given evidence, I did raise with Mr Starte whether it might be a case in which it might be possible to draw inferences, against one party or the other, for the failure to adduce evidence.

[37]Mr Starte helpfully referred me to Wisniewski v Central Manchester Health Authority [1998] PIQR P234 and made submissions that no adverse inferences should be drawn, and if so, certainly not against the Claimants. I accept those submissions and do not draw any inferences against either Claimants or Defendant for any absence of evidence. I will simply record, as I have done above, the absence of some evidence. I accept that I have to do the best that I can do on the materials which are before me. I accept that there will not be any more evidence and must not speculate on what additional evidence might have shown. However in circumstances where I have not been told about the full results of forensic examinations which have been carried out, see paragraphs 20 and 33 above, I will examine carefully the evidence which has been adduced to see what findings I can properly make. Breach of the compromise agreement

[38]The written compromise agreement was dated 22 July 2011 and provided for Mr Smith’s engagement as a consultant to terminate with effect from 31 July 2011. The compromise agreement provided, at clause 1.3 for Mr Smith to return to Cornish all correspondence, including emails, documents, computer print-outs which belonged to or related to the business of the firm. There was an exception in clause 8 to permit Mr Smith to retain documentation relating to two specific proposed complaints.

[39]It is apparent from disclosure given by Mr Smith that when he left Cornish he retained correspondence, emails, documents and print-outs from computers which he should not have retained. This much was obvious from the disclosure which, it is fair to Mr Smith to record, was properly given on this subject. It is also appeared from an email sent by Mr Smith to the Claimants in which he had referred to the storage of documents in virtual safes.

[40]Mr Smith said that he had had legal advice to the effect that he could keep his personnel file, but it appears that in the months leading up to the finalisation of the compromise agreement, he was collecting relevant documents. When the compromise agreement was made he had little time in which to leave the premises, and so simply copied the documents.

[41]Any legal advice given to Mr Smith, and his subjective understanding of what he was entitled to retain, is irrelevant to the issue of whether he was entitled to retain these documents under the compromise agreement. I find that Mr Smith was not entitled to retain the vast majority of the documents which he has. He had no right under the compromise agreement to a personnel file which contains documents such as those which have been disclosed. It is common ground that he is entitled to retain documents pursuant to clause 8 of the agreement.

[42]One of the documents wrongly retained included at least the first 3 pages of the email dated 18 September 2006 referred to in paragraph 24 above. This was information which belonged to the Claimants, and not to Mr Smith. Mr Smith also had a medical letter relating to Mr Harvey Shulman. Mr Smith explained that he had been given it by Mr Gonsalves in order to encourage Mr Smith to understand the stress being suffered by Mr Harvey Shulman as a result of Mr Smith’s actions. However that did not justify Mr Smith retaining the document after he left.

[43]I should also record that it does not appear that Mr Smith has used this information save to the extent that some of it has been used in this litigation, but this is in circumstances where he would have been entitled to relevant documents by way of disclosure.

[44]For these reasons I find that Mr Smith has retained documents in breach of the terms of the compromise agreement. I will need assistance of the exact wording of the form of relief to be granted to the Claimants. Harassment claim

[45]Section 1 of the Protection from Harassment Act 1997 provides that “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 another.”

[46]In this respect “Courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody’s day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2”, see Majrowski v Guy’s and St Thomas’ NHS Trust

[2007] 1 AC 224

at paragraph 30.

[47]As noted above in paragraph 8 above, an important part of the way that the Claimants seek to prove their case is by reference to Mr Smith’s previous actions. By the end of the hearing much of the conduct relating to: “Lewinstein.co.uk”; “Chamberpot”; “Norrice Lea”; “Shyster.org”; and “Soliecitors” was admitted. There was an issue between the parties about whether Mr Smith had lied about his involvement with those matters, and if so the effect of that. There were issues about Mr Smith’s responsibility for: “the Taggart email”; “the RW material”; and “Mr Harvey Shulman’s anonymous package” which were not formally part of the claim. I will therefore deal with those matters at the same time as my assessment of the material claims.

[48]It might be noted that the Claimants spent a considerable time when opening the case, and when cross examining Mr Smith, in concentrating on these past matters. Mr Smith suggested that this was because the Claimants had no evidence of his involvement with the material allegations. It might be noted that many of the past matters could not form part of the claim because they had been the subject of compromise in the compromise agreement in July 2011.

[49]Although Mr Starte did not put it in these terms in his written arguments, he accepted when asked in closing submissions, that the Claimants were using this material as “similar fact” type evidence. Another way of putting it is that the material showed that Mr Smith had a propensity to act in the way about which the Claimants complain.

[50]In Mood Music Publishing v De Wolfe Limited

[1976] Ch. 119

the Court of Appeal was asked whether similar fact evidence was admissible in a copyright infringement case. The Court of Appeal considered the approach then taken by criminal Courts to similar fact evidence, and said that the approach of the civil Courts was to “admit evidence of similar facts if it is logically probative, it is logically relevant in determining the matter which is in issue”.

[51]As is well known the approach taken by the criminal Courts to issues of previous wrongdoing has developed as a result of provisions in the Criminal Justice Act 2003, and the propensity of a Defendant to act in a certain way may support a party’s case. In this case there is no issue about the admissibility of the matters relied on by the Claimants, and I will take account of Mr Smith’s past actions in making my assessment of whether Mr Smith is responsible for the contested matters.

[52]I also record that although these past matters were not pleaded (and there might be arguments about whether that should have been done, see generally JN Dairies Ltd v Johal Dairies Ltd

[2010] EWCA Civ 348

), Mr Smith had fair notice of the Claimants’ case because it formed part of the material relied on in support of the applications for interim injunction. There was therefore no unfairness in permitting the Claimants to rely on this material. Lewinstein.co.uk

[53]The first item relied on is an email sent by Mr Smith, from his “defamation.org” email address, to Mr Lewinstein. Mr Lewinstein was a friend of Mr Harvey Shulman, and a mediator. Mr Smith had suggested him as a mediator to be used in Mr Smith’s dispute with Mr Harvey Shulman. Mr Lewinstein had, understandably because of his connection with a party, declined to act as a mediator.

[54]Mr Smith sent an email dated 8 March 2011 to Mr Lewinstein, saying that the refusal to act raised a “very serious integrity and conduct issue concerning yourself as a solicitor” which Mr Smith believed should be referred to the Solicitors Regulation Authority (“SRA”).

[55]I should record that Mr Smith was very ready to threaten to report solicitors to the SRA who he considered had acted wrongly. It was apparent from the materials before me that on occasions his judgment that someone else had acted wrongly was soundly based, and there was reference to mortgage fraud carried out by a person unrelated to these proceedings. However it was also apparent that although he worked as a practice manager in a solicitors firm, Mr Smith did not have legal training, and did not understand when it might not be appropriate for a person to act as a mediator. I record this because Mr Harvey Shulman said that Mr Smith had suggested Mr Lewinstein as a mediator, simply so that Mr Lewinstein would properly refuse, and Mr Smith could then make a complaint. Such a suggestion conflates Mr Harvey Shulman’s knowledge about conflicts making it inappropriate for a person to be a mediator, with Mr Smith’s knowledge. It was perfectly apparent that Mr Smith did not have knowledge of many legal matters, a good example of this was his summonsing of witnesses with the intention of cross-examining them. I think it most likely, and therefore find, that Mr Smith suggested mediators who were friends of Mr Harvey Shulman because: first he thought that he would be likely to get agreement for them to act from Mr Harvey Shulman, wholly ignorant of the issue of conflicts; and secondly because he enjoyed publishing details of his falling out with the Shulmans to colleagues of the Shulmans.

[56]Mr Smith was ordered by Master Eyre to provide details of whether he had a connection with a number of email or domain names, one of which was “lewinstein.co.uk”. Mr Smith denied any connection with this domain name.

[57]The evidence shows that the domain name as “lewinstein.co.uk” was registered, with “Al Killewe” as the registrant, at 798 Cranbrook Road, Ilford. Mr Harvey Shulman also exhibited what purported to be a snapshot of Mr Smith’s personal email account showing that he had been sent service information about lewinstein.co.uk.

[58]I find that Mr Smith was responsible for the registration of the lewinstein.co.uk domain name. This is because it became clear in the evidence that Mr Smith had registered a number of domain names at various times, and had used 798 Cranbrook Road as an address to do this. One of those registered at the site was a domain name that he used for one of his personal email addresses (the duffree email address). It appeared from Mr Smith’s evidence that he had once lived in Cranbrook Road, but he could not remember the number (he thought it was in the 600’s) and had used 798 as an approximation. The evidence showed that a person could use any genuine address for the registration of a domain name, regardless of a connection with the address. I also rely on the coincidence of timing between the registration and Mr Smith’s displeasure with Mr Lewinstein.

[59]I was shown nothing further about the domain name, and it does not seem that Mr Smith did publish any material relating to Mr Lewinstein. The evidence also showed that having registered the domain names, Mr Smith rarely made use of those domain names, preferring to publish material as sub-folders on his defamation.org website.

[60]Mr Smith’s use of the name of the person (for example Lewinstein), or a caricature of a person (for example Chamberpot), who Mr Smith considered had acted wrongly towards him, was a feature of Mr Smith’s registration of domain names.

[61]I should also record that the Claimants relied on the registrant name “Al Killewe” which they say is “I’ll kill you”. The evidence before me showed that Mr Smith did play with words, and I think it probable that he did use this name in the way intended by the Claimants. However it is also seems plain to me that he did it for his own private amusement, because there is no evidence that he ever used that name or reported it to anyone else, and did not seem aware that the Claimants (through Mr Mark and Mr Nicolas Shulman) would ever trace this activity.

[62]Indeed it was apparent to me that although Mr Smith was skilled in the use of computers, and could register domain names with ease, and publish materials on the web, he was naïve about what could be discovered about his own web and computer use. Mr Mark and Mr Nicolas Shulman, who were also skilled in locating materials from computers and in using computers, tracked down domain names and linked them to Mr Smith. They were also able to discover private correspondence that Mr Smith had had with web providers, which was still accessible on the web. Mr Smith’s surprise when confronted in cross examination with a website accessed on an ipad (or similar device) showing the correspondence was both obvious and genuine.

[63]I record this fact because, as will be apparent, it is capable of cutting both ways. I have a lot of information linking Mr Smith to publications which are not part of the causes of action, but very little about publications which comprise the causes of action. Chamberpot

[64]The second matter relied on by the Claimants was a publication made by Mr Smith under the heading “Chamberpot”. Mr Barklem, then a barrister, was advising Mr Harvey Shulman about Mr Smith’s employment, and the possibilities of Mr Harvey Shulman suspending Mr Smith. Mr Barklem sent some advice by fax to Mr Harvey Shulman. However the way in which the fax machine operated at the Cornish offices was that the fax was automatically sent as an email to a number of fee-earners, and copied to Mr Smith. This was to ensure that urgent faxes were not overlooked when the relevant fee earner was away, and it seems very likely that Mr Barklem had not been told of this internal arrangement. Mr Smith, who was on holiday when the fax from Mr Barklem was received, opened it as an email when he arrived back at work. He thought that there had been an “atmosphere” at work when he had walked in, realised that many others would have seen the fax, and was very angry.

[65]Although the Claimants said that Mr Smith “intercepted” the fax, I reject that characterisation because the evidence that I heard from all the witnesses established the system for faxes set out above. It was then suggested to Mr Smith that he should have deleted the email containing the fax. This would certainly have been Mr Smith’s professional obligation if he had been a solicitor, or had had a fuller understanding of professional legal obligations. As it was Mr Smith subjectively felt that there was nothing wrong in reading it, and in emailing Mr Barklem setting out matters from Mr Smith’s point of view.

[66]In the email to Mr Barklem, Mr Smith complained about the fact that the fax had been sent to his work colleagues, and complained of a conspiracy against him. He set out background facts from his point of view, and complained that Canfields was a 40 partner practice based in London, and that Canfields had added Mr Barklem’s legal expertise to the arsenal deployed against him. Mr Smith stated that he would be publishing the email on his Defamation.org website in a sub-folder headed “Chamberpot”. Mr Barklem properly replied to Mr Smith saying that he would not be able to communicate.

[67]Mr Smith then published material on the sub-folder. This included an email addressed to Mr Barklem threatening to make a complaint, and notes containing some of Mr Smith’s historic complaints about Mr Harvey Shulman and a former partner.

[68]Mr Smith then emailed Mr Barklem at his Chambers, and copied the email to the clerks and some other members of Chambers. Mr Smith continued his theme of complaining about the distribution of the letter of advice to his work colleagues, calling it an act of sheer lunacy. He also complained that Mr Barklem had not been given the full picture by Mr Harvey Shulman, and set out matters from his point of view. On 1 April 2011 Mr Smith emailed Mr Barklem again, telling him that the defamation.org Chamberpot folder had “been updated in the usual manner”, noting that it might be for the last time, but that this was the choice of Mr Barklem and his friends.

[69]There is also evidence that a domain called “Chamberpot2011.com” was registered at 798 Cranbrook Road under the name of TJ Lee. It appears from snapshots of Mr Smith’s own personal email account, accessed from his work computer by Miss Collie (and exhibited to Mr Harvey Shulman’s statement in the bundles at 3/865), that Mr Smith was sent an email about webspace at “Chamberpot2011.com” and “chamberspot.co.uk” on 18 April 2011, however neither “Chamberpot2011.com” nor “chamberspot.co.uk” appear to have been used to publish information.

[70]I consider it more likely than not, and therefore find, that Mr Smith did set up the “Chamberpot2011.com” domain. I make this finding because the same address has been used (798 Cranbrook Road) for registration as have been used by Mr Smith for other registrations, because Mr Smith had devised the term “chamberpot” for his communications at this time with Mr Barklem, and because a similar domain name appears to have been sent to his home email account accessed on his work computer. I accept that Mr Smith did not use it as a website. I make this finding because I have not been shown any publications from the website. It is also right to record that Mr Smith did accept in his witness statement his publications on the defamation.org sub-folder called “Chamberpot”, and did use his clearly identifiable email when communicating with Mr Barklem and others.

[71]I should also record that the Chamberpot correspondence did not seem to me to be “viciously abusive and threatening”, as characterised by the Claimants. It also seemed to me to be more serious than the Defendant’s description of it as “immature”, “childish” and a “wind up”. It was apparent that Mr Smith saw matters only from his point of view, namely the fact that advice about him had been published to others in the office, without realising that this could be through inadvertent error, namely the probability that no one had told Mr Barklem about the individual way in which the fax system operated at Cornish. The Chamberpot correspondence is an illustration of Mr Smith’s relentless pursuit of persons who he considers have acted wrongly, and lack of insight into the fact that publishing such allegations to work colleagues of the individual that Mr Smith considered to have acted wrongly, was acting in exactly the way in which Mr Smith had condemned and which caused him so much upset. Norrice Lea

[72]Norrice Lea is the location of a synagogue attended by Mr Harvey Shulman and his family. It is common ground that Mr Smith did establish a company in the name of Norrice Lea Limited on 10 May 2011, appointing himself a director of the company. He said that he had been severely provoked by Mr Harvey Shulman, who was dragging out settlement negotiations, and felt justified in doing it.

[73]This was another example of Mr Smith seeing the wrong only in what he perceived to have been done to him by Mr Harvey Shulman (and I am not in a position to address who was right or wrong in relation to the underlying disagreements between the parties leading up to the compromise agreement in July 2011), but lacking any insight into the fact that establishing a company with a name chosen for the reason that it was the location at which Mr Harvey Shulman attended synagogue lacked sense and was deliberately provocative and insulting. It is fair to record that, in the event, Mr Smith did not appear to make any use of the company.

[74]It also appears, from screenshots of Mr Smith’s own email address, captured when he opened his own email address on his work computer, that Mr Smith was sent an email about advertising with Google AdWords “norrice lea”, and he was sent information about registering “norricelea.com” in May 2011.

[75]I find that on 22 March 2011 Mr Smith did register the domain “Norricelea.com”. I make this finding because the registrant’s address for the domain name is given as 798 Cranbrook, and I think it very improbable that any one other than Mr Smith at that time would have registered Norricelea.com at an address used by Mr Smith for registering other domain names, within 12 days of Mr Smith incorporating Norrice Lea Limited.

[76]It is true that Mr Smith did not publish anything on that website, and did not send emails from the account, but he did register the domain.

[77]I also find that Mr Smith published material on his defamation.org website in another sub-folder relating to Norrice Lea, in the terms set out in paragraph 170 of the witness statement of Mr Harvey Shulman. I make this finding because Mr Smith said in cross examination that it was the sort of material that he might publish, and that some of the phrases seemed familiar. I find that it was on the defamation.org website as a sub-folder, because that was the address given on 16 March 2011 by Mr Gonsalves, reporting a complaint from Mr Harvey Shulman to Mr Smith, about publications. The material was worded to provoke interest “Have you ever wondered what goes on with your friends and acquaintances behind closed doors or in their workplace? Well … Wonder no more!”. It was not abusive or threatening, but it was designed to, and did, provoke and annoy Mr Harvey Shulman. It was an example of Mr Smith transgressing into Mr Harvey Shulman’s private religious life, by using the location of the synagogue used by Mr Harvey Shulman, in a deliberate attempt to provoke Mr Harvey Shulman.

[78]It would also have created wholly understandable worries for Mr Harvey Shulman about what Mr Smith was proposing to write. Mr Smith said it would have been private, and that it was protected from any Tom, Dick or Harry, and so it should not have caused Mr Harvey Shulman worries. However that was a case of Mr Smith conflating his knowledge about computers with Mr Harvey Shulman’s knowledge. Mr Harvey Shulman had limited computer knowledge, and was very worried about the fact that any person could have found the material on the web. Shyster.org

[79]On 6 April 2011 a domain name “Shysters.org” was registered to 802 Cranbrook Road in the name of Stuart Pitt. There is a document dated 29 April 2011 in the papers before me, exhibited to Mr Harvey Shulman’s statement and therefore the product of investigations by Mr Mark and Mr Nicolas Shulman, which suggested that Shysters.org was associated with 798 Cranbrook Road. No explanation was given to me to show how Shysters.org could be associated with both 798 and 802 Cranbrook Road.

[80]The Claimants emphasise the name “Stu Pitt” and therefore “Stupid”, but if that was the proper meaning of the registrant name, it does not seem to me that much turns on it because it was never communicated to anyone. It does not appear that the domain name was ever used.

[81]On 16 April 2011 Mr Smith published, on his defamation.org website, under a sub-folder headed “Shysters” material about two solicitors who had been the subject of investigations by the SRA. Underneath, it was said “Soon to be updated – we have a real `Shiver of Solicitors’ based in London to amuse you with in the very near future.

[82]On 18 April 2011, also on the defamation.org website as a sub-folder for “shysters” further publications were made. Reference was made to Mr H not doing something he had promised to do, and suggesting that Mr H was a liar. Reference was also made to HHH of Hampstead, which the Claimants say is a coded reference to “horrendously heinous heister”, a term that Mr Smith had used to describe Mr Harvey Shulman in an email dated 23 February 2011.

[83]Mr Smith for his part accepted that he had published the material on the defamation.org website. He said he had done it because Mr Harvey Shulman broke promises about when he would resolve matters. He accepted HHH was a reference to the words “horrendously heinous heister” and said he had created the website to wind up Mr Harvey Shulman.

[84]However Mr Smith said he did not have anything to do with the Shysters.org domain. He points to the fact that there do not appear to be emails about Shyster.org to his personal email address which appears to have been captured by the work computer. In circumstances where the address at Cranbrook Road appears to be different from the one previously used by Mr Smith, Mr Smith has admitted the publications that he made on his own defamation.org website in the sub-folder, and there are no other emails linking Mr Smith to Shyster.org, I am not satisfied that Mr Smith was responsible for the Shyster.org website. I do not think much turns on this point because no use was made of the domain name.

[85]I should record that the Claimants suggest that the words “shiver of solicitors” is a reference to “shiva”, being a word used to describe the seven days of formal mourning observed by close relatives of a deceased Jewish person, and therefore an implicit threat. Mr Smith says that a “shiver” is a collective noun for a group of sharks. I accept that Mr Harvey Shulman took the complaint to be a reference to a “shiva”, but I am not satisfied that it was intended to be understood in that way by Mr Smith. He seemed genuinely affronted by the suggestion when made to him in cross examination, and I formed the distinct impression that, because of his like of wordplay, and his acceptance of being involved with so many publications which were offensive, that he would have accepted the proposition if he had genuinely intended a double meaning. Soliecitors

[86]On 8 April 2011 Mr Smith emailed another person who published a website making allegations about solicitors known as “SolicitorsFromHell.com”. Mr Smith recorded that his website had put pressure on him to remove material. The other person recorded that he used “one.com”, a Dutch company which was cheap and did not entertain complaints. Mr Smith replied that he would give them a go. Mr Smith strongly suggested that his email account must have been improperly accessed in order for anyone to have accessed this material, and there was no explanation from Mr Harvey Shulman about how his sons had got the material. I do not criticise Mr Harvey Shulman for this, because his sons simply obtained the material, and he did not appear to think to ask where it had come from. As it was, when Mr Smith was being cross-examined by Mr Starte about this, and was suggesting that his emails had been hacked, Mr Mark Shulman accessed the website from Court, and it was shown to Mr Smith on an ipad (or similar instrument) how the emails could be accessed, as set out above.

[87]The domain for soliecitors.com was registered to “Tom Smith” at 798 Cranbrook Road on 17 April 2011. The domain server was reported to be “one.com”. Mr Smith denied a link to this website and denied using emails linked to this domain name in his statement to Master Eyre. Arvixe Support appeared to have emailed Mr Smith on 12 May 2011 about hosting information. It does not appear that anything was published on the Soliecitors website.

[88]I accept that Mr Smith did register the Soliecitors website. I make this finding because Tom Smith had an email conversation about using one.com in relation to solicitors in April, and “soliecitors” was registered with “one.com”. The domain was registered to 798 Cranbrook Road, an address used by Mr Smith. The registrant was given as Tom Smith. Other searches and internet use

[89]Miss Collie discovered other material stored under the user name of Tom Smith on the work computer. These included video clips of Mr Harvey and Mrs Jennifer Shulman’s home, although there was some issue about whether they were video clips or just photographs. They purported to show dates of 28 April 2011. There was a wedding picture of Mr Mark Shulman and his wife, which may have been on a facebook page. There was a photograph of Mrs Natalie Shulman (wife of Mr Mark Shulman) which also may have been from her facebook page. It appears that a wedding guest list was accessed.

[90]It appears that at one time there was a search for a peroxide bomb, and pictures of weapons found on the website of a gun club. It was not apparent how much time had been spent on the various sites. Mr Smith has noted that he was not cross examined on any of this, even though it had formed part of the without notice application made against him. Mr Smith’s evidence about the domain names

[91]It is apparent that Mr Smith registered a considerable number of domain names, but the evidence does not suggest that Mr Smith used them to publish material, and he did not use them for the purposes of sending emails. Mr Smith accepted that he had published material, for example the Chamberpot materials, in his witness statement made pursuant to the order of Master Eyre. However the Claimant said in relation to this domain name (at paragraph 5(d) of the witness statement that “the Defendant has not set up a website nor used an email account on this domain nor have any documents on this domain”. This is true so far as it goes.

[92]Mr Smith continued stating:

“The Defendant provided Appendix 1 (exhibit 13) with his seventh witness statement … which demonstrates this domain is not owned by anyone. To the best of his knowledge, the Defendant has had no connection with this domain other than the unsubstantiated inferences by the Claimants.”

I was not shown the seventh witness statement or exhibit by either the Claimants or Defendant, and therefore cannot fully assess this statement. I also accept that Mr Smith registered many domain names, did not use them, and may have forgotten about some of them. However I consider that he was shading his answers to avoid a full acknowledgement of his activities, and I will therefore approach his evidence with caution. Cornish and the Shulmans

[93]Having set out matters relied on by the Claimants against Mr Smith, it is right also to record matters relied on by Mr Smith against the Claimants.

[94]Mr Smith relied in particular on the fact that Mr Harvey Shulman had suggested, in an email dated 18 September 2006, that an email be sent to a third party in Mr Smith’s name, even though Mr Smith had left the firm a few days earlier. Mr Harvey Shulman said that it was permissible to send the email in Mr Smith’s name, because Mr Smith had been dealing with the matter beforehand, and was not around. I am not in a position to resolve the dispute about whether there was a good reason for Mr Harvey Shulman’s suggestion, but it is a very practical illustration of the fact that with electronic forms of communication, it is possible to send emails in someone else’s name, and even to log into someone else’s computer.

[95]Mr Smith relied on the fact that Mr Harvey Shulman had done a google search in relation to Mr Smith’s girlfriend, as showing that Mr Shulman did not respect proper boundaries relating to Mr Smith’s private life. Mr Harvey Shulman said he had seen Mr Smith’s girlfriend at the offices, which he owned, out of hours, and was interested in finding out what she was doing. Both Mr Harvey Shulman and Mr Smith demonstrated some interest in each other’s personal lives.

[96]Mr Smith relied on the fact that Mrs Jennifer Shulman had exaggerated her evidence in relation to calls to her phone made on 2 March 2011. A picture of her mobile screen display for that evening was in the bundle (at 1/226AD) which did not show clearly the missed call, but it did show later calls up to 23.10 hours. In her witness statement Mrs Jennifer Shulman had agreed with Mr Harvey Shulman’s evidence. In Mr Harvey Shulman’s statement he had said, at paragraph 251, that his wife had been called by the mobile number used to send him text messages. He continued saying that immediately there was a second call from the same number, and that she had put the phone on silent throughout the night, but that the phone had vibrated throughout the night indicating someone was trying to call her. The screenshot showed that this was not accurate. Mr Starte submitted that all it showed was some exaggeration. Although not much turns on Mrs Jennifer Shulman’s evidence, it does indicate that I will need to approach her evidence with care.

[97]Finally Mr Smith relied on the fact that the Claimants had used their resources to keep persons from helping him. He relied on the evidence given by Ms Buffoni who was asked by Mr Blundy to sign a confidentiality agreement stating that she would not assist Mr Smith in connection with the dispute. Ms Buffoni was not happy with this proposal, but was told it was part of her voluntary redundancy deal, and did so. In the event Ms Buffoni explained to Mr Smith why she could not help him, and gave evidence to that effect. All of this is consistent with the fact that I will need to be careful in drawing inferences from the evidence which is presented to me, see paragraphs 20 and 33 above. The disputed materials

[98]I set out below details of the disputed materials. The “Taggart emails”; the “RW materials” and “Mr Harvey Shulman’s anonymous package” do not form part of the claim, but the Claimants rely on them as further evidence to support their claim, if I accept that Mr Smith was responsible for them. The Taggart emails

[99]Mr Andrew Taggart was a partner at Herbert Smith, solicitors representing Mr Harvey Shulman and Cornish in its employment dispute and compromise discussions with Mr Smith. On 18 June 2011 Mr Harvey Shulman received an email from andrew.taggart@hotmail.co.uk. This was an account created on hotmail in the name of Andrew Taggart, but Mr Harvey Shulman said that Mr Taggart said that it had nothing to do with Mr Taggart, and this also appears from the contents of the email.

[100]The first email purported to say that Mr Taggart had received a call, when travelling, to the effect that “he” (Mr Smith) was posting again. It continued suggesting that Mr Smith was ex army and had been court-martialled. Mr Harvey Shulman replied saying, among other matters, “amazing news if court martial right”. A reply to that email from the pretend Andrew Taggart was to the effect that the services file was sealed, perhaps because of special operations involvement, and that money might be required to break the seal. At this point Mr Harvey Shulman realised the imposter email for what it was, and did not reply. Mr Starte said that nobody else but Mr Smith would have had an interest in this email exchange, and that it must have been Mr Smith. It appears that no investigations were made to establish the person or computer responsible for establishing the hotmail account.

[101]In his first witness statement Mr Harvey Shulman said that “I believe they were sent by Mr Smith or someone at his direction”. It is now said that they were sent by Mr Smith. The RW materials

[102]RW, whose name it is not necessary to give in the judgment, was a trainee solicitor who qualified at Cornish on 1 April 2011. She left Cornish on 10 May 2011, complaining of Mr Smith’s attitude towards her. I had the opportunity to see her give evidence and it is plain that she was nervous, and seemed to me to be genuinely upset. She was contacted by the Claimants to give evidence in March 2012. She had refused to provide a witness statement to Mr Smith.

[103]RW said that Mr Smith had dealt with an issue relating to another member of staff. RW had attempted to cover for the colleague and not immediately told Mr Smith everything, but had later come clean. Mr Smith said that she had lied, and thereafter she had felt like a “marked woman”. Mr Smith had said that RW had lied and threatened to report her.

[104]There had been a contentious meeting in May 2011 in which RW said that Mr Smith had said “three strikes and out”, which RW understood to mean that if there was another cause for Mr Smith to think she had done anything wrong, would result in her removal. It appears that RW’s line manager had been updated by email and there was some dispute between Mr Smith and RW about what was said and who was present in the meeting, but I am not able to resolve that dispute. I should record that Mr Smith does seem to have attempted to have had other women present when he met with women members of staff.

[105]RW said her life at Cornish in May 2011 had been very difficult. Her supervisor was Mr Harvey Shulman, but she could not communicate with him directly because he worked at Canfields, and there was a protocol in place preventing direct contact (this protocol seemed to have been devised at least in part as an attempt to reduce frictions between Mr Smith and Mr Harvey Shulman). RW did not know that Dennis Carey, who had been hired as a consultant, and was based at Crichton LLP, had supervision responsibilities for her, noting that Dennis Carey worked only 2 days a week with the practice.

[106]RW produced some Facebook pages which showed that by 30 June 2011 someone had produced a Facebook profile of RW showing false details about her likes, and giving the name of a website with some offensive wording.

[107]RW had seen the website, which had her name, her Law Society ID number and noted that this was an approach adopted by Mr Smith in writing about solicitors as appears from numerous emails, see for example the email dated 19 February 2011. The website stated that RW was a liar, which was the complaint made by Mr Smith about RW.

[108]RW also received text messages from two telephone numbers, being 07440 113641 and 07500 897 295. The text message sent from the 07500 number asked “What do you call a monkey sitting on dynamite? A baBOOOOM!” which caused RW great upset. Indeed RW appeared to have lost confidence as a result of these messages, and her fear that other employers might see web posting and think that they were justified. As a result she did not pursue her career in the law.

[109]RW did go to the police station and report this. She changed her mobile number, and the police got the Facebook page shut down. RW made some attempts to look at ownership of the website, but she did not want to provoke the person making the posts, who she believed to be Mr Smith, by initiating contact through the websites and therefore inquiries were not pursued. I was given no further details of who had registered the webpage. Mr Harvey Shulman’s anonymous package

[110]A few days after the July 2011 compromise agreement had been made Mr Harvey Shulman received an anonymous package containing images of him, with photographs showing, among other things, that he was sitting at a desk over a period of about 30 minutes, dressed firstly in shirt sleeves, and then with a coat or jacket on. Mr Harvey Shulman believed that the photographs showed him sitting at Mr Smith’s desk, and that Mr Smith had sent the package. The date on the first two photographs appeared to be February 2010 but these photographs show nothing of apparent interest. The date on the next 13 photographs shows 18 February 2011, with times from 18:35 to 19:09. This was said to be the date on which Mr Shulman had searched Mr Smith’s desk. Mr Harvey Shulman gave evidence about this in his witness statement, saying that on 18 February 2011 he carried out a brief search of Mr Smith’s desk, because he (Mr Harvey Shulman) had already been subject to such a campaign of harassment at the hands of Mr Smith. He said he felt entitled to do this as part owner of Cornish.

[111]When questioned about this search by Mr Smith, Mr Harvey Shulman was clear that the search was for a very brief period of time, and could not have been over the 30 minutes purported to be shown on the photograph timings. He considered that the anonymous letter had been sent to taunt him about this activity, and said that the evening of the search Mr Smith had hand delivered a letter to Mr Harvey and Mrs Jennifer Shulman’s home, complaining about the infringement of Mr Smith’s confidentiality, saying Mr Smith must have known about the search.

[112]Mr Smith had, during the course of the action asked for copies of the packaging and envelopes, but it appears that Mr Harvey Shulman had disposed of them. As noted above, it is only fair to record that, at that time, Mr Harvey Shulman was hoping that matters would resolve themselves and was not thinking in terms of action.

[113]Although Mr Harvey Shulman believed that the desk at which he was sitting belonged to Mr Smith, Mr Smith said it was not, and I was given no evidence independent of the parties to enable me to resolve this factual dispute. The amount of time spent at the desk is completely inconsistent with Mr Harvey Shulman’s denial that he spent any more than a very short time at the desk which “did not last more than a minute”. An inspection lasting over 30 minutes, albeit with time taken to put on a coat or jacket, is obviously inconsistent with a very short time.

[114]I was also shown that Mr Smith had a computer file which suggested that Mr Harvey Shulman had rummaged in his desk. However I was not shown the contents of the computer file, or told that it was not searchable. I also know that Mr Smith wrote letters to Mr Harvey Shulman complaining about the activity, and I cannot therefore infer that the file must have concerned the photographs.

[115]I also do not consider that I can ignore Mr Harvey Shulman’s evidence that he was at the desk for only a short time, and find that the photos show the relevant inspection of Mr Smith’s desk. This was because Mr Shulman was quite adamant about the shortness of his inspection when he was being asked about the length of time for the inspection by Mr Smith (who did not appear to realise that Mr Harvey Shulman’s evidence in this respect part supported Mr Smith’s case that this was not an inspection of his desk). The strength of Mr Harvey Shulman’s evidence about the shortness of time that he spent at the desk meant that it was not possible to deal with the inconsistency by suggesting that he had got the length of time of the inspection wrong, and there is nothing to suggest that Mr Shulman was lying about the length of time for the investigation.

[116]I note that Mr Smith did have spy cameras, see paragraph 25 above, and that he had been aware that Mr Harvey Shulman had inspected his desk after the event because he had delivered a letter to Mr Harvey Shulman complaining about it.

[117]It is right to record that in his first witness statement, in support of the without notice hearing on 26 February 2012, Mr Harvey Shulman said that “on 3 August 2011, I received a package sent from Cornish offices by Mr Smith”, and used similar wording in his 3rd witness statement at paragraph 183, whereas in paragraph 4 of the same witness statement he said that he had received an anonymous package in the post. In evidence Mr Harvey Shulman had made it clear that he did not know who had sent the package, but believed that Mr Smith had sent the package. Sergei Bragin emails

[118]The Sergei Bragin emails were sent in January 2012 and referred to “traiters at tribunals”. They were an attempt to discredit Mrs Ashmore, a former employee of Cornish who was then bringing a claim in the Employment Tribunal in which she was making criticisms of Mr Smith’s conduct to her. Mr Harvey Shulman wondered whether the email was meant to be “Sir Guy Bragin” but this appeared speculation.

[119]The second email appeared to implicate Laura Nicoll, another employee at Cornish, by suggesting that Ms Nicoll had assisted Mrs Ashmore. Mr Harvey Shulman considered these to have been fake, and instructed Miss Collie to investigate Mr Smith’s work computer, which occurred on 9 February, and Mrs Ashmore’s computer. Further Bragin emails were received. One was sent to Mrs Jennifer Shulman, suggesting that monies had been paid. Another email was received in August 2012 purporting to be a case update.

[120]I note that Mr Harvey Shulman said in paragraph 233 of his first witness statement:

“I am in no doubt whatever, that given the scale and IT sophistication used by Mr Smith in the unauthorised covert surveillance of the Cornish offices that he has the necessary knowledge, technical ability and motive to send the Bragin emails”

. I simply record that, at the trial, evidence about Mr Smith’s unauthorised covert surveillance, and in particular computer programmes, was not adduced beyond the invoices showing purchases of spy cameras. The purported Nicholas Shulman emails

[121]Emails were sent from an email address nicholasshulman@yahoo.com. These emails were obviously intended to give the impression that they had been sent by Nicolas Shulman. The wording of the emails were obvious spoofs, and did mock the abilities of Mr Mark and Mr Nicolas Shulman. They were sent on 9 and 10 February and sent to other persons working at Cornish. Tom Smith emails

[122]Mr Taggart, the Claimants’ former solicitor, wrote stating that Mr Smith should send no further communications, or it would be treated as harassment, as appears from the letter dated 6 September 2011. Mr Smith continued to send emails. They included an email dated 9 February dealing with a new complaint that he was making to the SRA. He did not disclose the complaint, but it appeared to relate to some outdated, and therefore inaccurate, information on the practice website. (It is only fair to the Claimants to record that the website was updated, and no further action was taken).

[123]The emails were obviously intended to cause concern about what complaint had been made, and what the SRA was investigating. Text messages

[124]The text messages commenced on 13 February 2012 at 13:16. They were sent to Mr Harvey Shulman. The first one noted “Everyone is as he decreed …”. The second one to Mr Harvey Shulman on 13 February 2012 at 14:21 “You dishonour him when you dishonour your word …”. A third one to Mr Harvey Shulman on 13 February 2012 at 14:27 “Aren’t you amazed that such a simple letter …”. This is likely to have been a reference to the complaint to the SRA.

[125]The texts continued including on 14 February 2012 at 12:11 asking “Where is the head of the family …”, and later “Why does the mother seek to destroy the good name …”. Two further texts were sent on that day including one suggesting that “Your family guilt and shame are known to him …”.

[126]Some of the wording did use quasi-religious language, which Mr Harvey Shulman took to be an attempt to make fun of, by imitating, his own use of religious language in some private emails, and he said that Mr Smith would have been aware of this use of language.

[127]Mr Harvey Shulman also suggested that the reference to reneging in one of the texts was a suggestion that Mr Smith should have another deal with Canfields, but it does not appear to me that Mr Smith thought he had been promised such a deal. March letters received at 1 Brick court

[128]Letters purported to have been dated 20 March 2013 and signed by a person purporting to be “disgusted person at GH Canfields LLP”, were sent to the Clerks at 1 Brick Court, and copied to a number of different barristers. The letters enclosed coloured photos to show that the person was from Canfields, and suggested that the Claimants were framing Mr Smith.

[129]There was some confusion in the witness statements lodged on behalf of the Claimants about the number of letters received, but it was not suggested that anything material turned on that. 3 May 2013 letter to Pauline Curham

[130]Mr Smith and Ms Curham had had a longstanding disagreement. It is also right that Mr Smith was convinced that Ms Curham should have been dismissed, and was upset that his position had not been supported on that. Indeed he spent some time cross-examining Ms Curham about that until I reminded him that was not an issue in the action and I would not make decisions about such matters. It is relevant to note that Mr Smith’s position in relation to Ms Curham seems to have been known within both Cornish and Canfields. Mr Smith accepted that he does have a “direct” style, but there are many others who would consider it to be rude, particularly in circumstances where he had a position of responsibility and was responsible for others more junior than him. In many respects the disagreement between Mr Smith and Mr Harvey Shulman about dealing with Ms Curham appears to have been part responsible for the breakdown of relations between the parties.

[131]On 5 May 2013 Ms Curham received a letter in a plain envelope which was typewritten and had a stamp, so subjectively thought it might be from Mr Smith, because he had typed a letter using a stamp when sending a witness summons to Ms Curham. She said that her stomach turned and she felt ill. She opened it and saw that it contained photos (the copies in my bundle are very poor) showing Mrs Jennifer Shulman and Mr Nicolas Shulman superimposed on egg cups, inviting the person to read about the “eggstroardinary story”. At the bottom of the letter is an address given for a purported website at “defamations.com/index.htm”. This is obviously similar to Mr Smith’s “defamation.org” domain name, but I was not shown any evidence to suggest that the website existed.

[132]The document was provided to either Mr Blundy or Mrs Jennifer Shulman (but nothing turns on who received it). The envelope showed it had been posted at Mount Pleasant. 18 April letters received on 8 July at 1 Brick Court

[133]By letters purported to have been dated 18 April 2013, addressed to Mr Smith as “Dear Smith”, sent by “disgusted person at GH Canfields LLP” and again copied to barristers at 1 Brick Court and received by them on 8 July, the date when this matter had been first listed for trial, Mr Smith appears to have been informed that barristers had been told about real matters, but had done nothing.

[134]Mr Smith says that the letters are obvious fakes because the proper markings on the first letters are not reproduced, and he did not receive the letter. He says that someone sent them to undermine the credibility of the March letters. The Claimants say that they are obvious fakes, but were sent by Mr Smith as part of his campaign against them. The involvement of another person at Cornish or Canfields

[135]It is important to note that it was common ground between the Claimants and Defendant that there was, at some stage and to some degree, someone else involved in the campaign suffered by the Claimants.

[136]The Claimants say that the start of the text campaign coincided with a discussion that Mr Harvey Shulman had just had with Mr Gonsalves, the Chief Executive Officer. Mr Harvey Shulman also said at paragraph 203 of his third witness statement that he believed that it was no coincidence that Mr Smith’s emails were received when Miss Collie was carrying out her forensic examination at Cornish’s offices. As Mr Smith was not at the offices at either time, if Mr Harvey Shulman is right, that must mean that someone at the offices was responsible for letting Mr Smith know. If the Claimants accept that a person was sufficiently on Mr Smith’s “side” to do that, it is not immediately clear to me why their involvement should be limited to acting as a go between, or why they should not be acting on their own initiative.

[137]Mr Smith says that the March letters received at 1 Brick Court must be genuine letters, and he referred to proper markings on the envelope, and says that this means that there is someone on the inside who is reporting on what is going on. He relies on the letters as being accurate when they say that the Claimants have been guilty of wrongdoing. He suggests that the fact that there are colour photographs sent in the letter, at a time when the Claimants had only disclosed to him black and white copies, proves that there must be someone at the Cornish and Canfields offices who is involved. Mr Smith says that was why he was so keen to see the originals, and why the incorrect information that he was given to the effect that everything was black and white when he asked for inspection, was significant. If the letters are genuine, it does seem to me that there is nothing to prevent such a person acting on their own initiative in matters.

[138]The evidence as a whole makes it clear, and I therefore find, that there was someone at Cornish, not either the Claimants or Mr Smith, who has been “involved” in these proceedings. This is because there are genuine markings on anonymous letters sent after Mr Smith has ceased to visit Cornish. It is also because Mrs Jennifer Shulman said that there were about two persons, who were not identified, who were supporters of Mr Smith at Cornish at relevant times. There is nothing to prevent such a person acting on their own initiative. It is plain from the emails and correspondence in the trial bundles that while there were many persons who did not like Mr Smith, for example RW, there were others (at least two persons) who considered him to have been in the right and would have been unhappy to see him leave.

[139]If a person was acting on their own initiative there would be nothing to prevent such a person imitating certain of Mr Smith’s styles, for example his use of the solicitor registration number after giving a solicitor’s name, or copying persons who have nothing to do with the dispute into emails or correspondence, or imitating Mr Harvey Shulman’s style of sometimes using religious language in his emails. Not satisfied harassment by Mr Smith of the Claimants

[140]In the final event I am not satisfied, on the balance of probabilities, that Mr Smith sent the Taggart email; the RW materials; the anonymous package to Mr Harvey Shulman; the Sergei Bragin emails; the Nicholas Shulman emails; the texts; the March letters to 1 Brick Court; the 3 May letter to Mrs Curham; the letters received in July at 1 Brick Court. Therefore I do not find that there was harassment, or a further breach of the compromise agreement. The reasons for my findings are addressed below.

[141]First there is no forensic evidence to link Mr Smith with the disputed materials. The absence of forensic evidence is not, of course, fatal to the Claimants’ claim for harassment which can be proved in a number of different ways. However the absence of such evidence is relevant in circumstances where Mr Smith was, as I have found above, naïve about what could be located about his actions on his own work computer and on the web. In this respect I rely on his obvious surprise that his correspondence with the SolicitorsfromHell website owner could be accessed on the web, and the fact that he had not realised that accessing his personal email account through internet explorer (or equivalent) from his work computer would mean that his work computer would image his email inbox when opened. If Mr Smith had been responsible for the materials set out above, I consider it likely that something would have been found to link him with those disputed materials.

[142]Secondly I accept that there is a coincidence of timing and interest in the subject matter of many of the disputed materials, which supports the Claimants’ belief that Mr Smith is the author of these disputed materials. In particular there are the Taggart emails, the RW materials, and the Sergei Bragin emails. However, for the reasons given in paragraphs 135 to 139 above it is plain that there is another person involved at Canfields or Cornish, who would have known about these matters, and as recorded above, even the Claimants part rely on the involvement of such a person. In these circumstances it is difficult to see how such a person could be excluded from responsibility for the materials. This is in circumstances where Mr Smith’s dispute with the Shulmans was well known (and even the subject of inadvertent disclosure to others through faxes from counsel), Mr Smith’s disagreement with RW was also well known, and Ms Ashmore’s tribunal claim was again well known.

[143]Thirdly Mr Smith has, in the past, been transparent about his pursuit, sometimes relentless pursuit, of persons who he considers to have acted wrongly. He sent emails to Mr Lewinstein making complaints. He sent emails to Mr Barklem alerting him to the Chamberpot publications of the defamations.org website. He accepted that he was probably responsible for the Norrice Lea material, which was, in any event on a domain which he acknowledged was his. The Shysters material was published on his domain. In my judgment Mr Smith’s admitted publications involve behaviour which was offensive and wrong. It is apparent that Mr Smith has shown a lack of insight into the effect of his behaviour on others, and I take that into account in making my findings. However there does seem to me to be a relevant difference between that offensive but open behaviour, and sending anonymous materials.

[144]Fourthly Mr Smith has consistently denied his involvement with the materials. He was cross examined by Mr Starte for a considerable period, and far longer than Mr Starte’s original time estimate (although it was possible to accommodate the longer cross examination in the trial timetable), and apart from accepting that the Norrice lea material referred to in Mr Harvey Shulman’s witness statement sounded like the sort of material he might publish (which was on his admitted website and did not form part of the claim) he was clear about the absence of his involvement. There was nothing which showed that I should discount Mr Smith’s evidence, although, for the reasons given in paragraph 92 above, I approach his evidence with caution and have therefore considered it with particular care.

[145]Fifthly this is a case where, because I have not been told all that I could have been told about forensic investigations, as appears from paragraphs 20 and 33 above, I have therefore been careful in drawing inferences. I have also been careful because it is apparent that other information has not been available to me, as appears from paragraph 97 above.

[146]I should record that I have not, in coming to this conclusion, drawn inferences against the Claimants because of the absence of evidence. I have, however, assessed the evidence which is before me as it is.

[147]I did step back and consider the case as a whole and consider whether that meant that I should make findings of harassment against Mr Smith. As noted above I was careful in considering the evidence of Mr Smith (as well as some others), and I did bear in mind Mr Smith’s previous offensive behaviour. However when considering the case as a whole I was struck again by the very considerable evidence showing Mr Smith’s actions with Lewinstein.co.uk, Chamberpot, Shysters.org and Soliecitors, and the complete absence of evidence showing his involvement with the contested materials. Stepping back and reviewing the matter as a whole did not cause me to alter my judgment that I was not satisfied that Mr Smith was responsible for the materials.

[148]I should say that I accept that the Claimants had a genuine belief that Mr Smith sent the disputed materials. I do not find that the Claimants were in any way responsible for sending the materials. First there was no forensic evidence to that effect. Secondly the fact that they should send materials to themselves to set up Mr Smith seems to me to have been absurd when they had spent time and money in negotiating a compromise. Bringing this action would not have had any effect on whether Mr Smith was able to pursue complaints (of whatever validity) against the Claimants. Thirdly such an action would be inconsistent with the fact that Mr Harvey Shulman did not, at first, make anything of the anonymous package that he received in August 2011, notwithstanding his subjective belief that Mr Smith had sent it. Fourthly Mr Harvey and Mrs Jennifer Shulman gave clear, consistent, evidence denying any such actions.

[149]It is common ground that Mr Smith did send emails from his email account in February 2012. However I do not find that those emails, on their own, amount to harassment. They were certainly ill-judged, and there was no legal or moral obligation that I could determine why the Claimants should accede to Mr Smith’s requests, but they do not seem to me to have fallen on the wrong side of the line identified by Lord Nicholls in Majrowski and, in the end, I did not understand Mr Starte to submit to the contrary.

[150]I should record that if I had found Mr Smith responsible for all of the materials, I would certainly have found harassment of the Claimants. The real and personal cost caused by the campaign of harassment in this case, whoever was responsible for it, was plain. RW was still very affected by what had been sent to her. The person who sent the material might have considered it only joking material, but the fact that it was sent anonymously, and RW felt powerless to do anything about it, was obvious. Mr Harvey and Mrs Jennifer Shulman had felt justifiably concerned and under attack from anonymous messages. A feature of harassment cases is that the person being harassed often feels powerless to stop it, either because the harassment is from a computer which will not respond to requests to desist, see Ferguson v British Gas

[2009] EWCA Civ 46

[2010] 1 WLR 875

, or because it is from a large organisation who consider that constant calling is a legitimate way of collecting monies, Roberts v Royal Bank of Scotland

[2013] EWCA Civ 882

[151]If I had had to assess damages in this case I would have assessed them in the sum of £10,000. The conduct in Roberts, for which an award of £7,500 was made, lasted for nearly a year and involved 547 calls, some of which reduced the Claimant to tears. Any such award would have to be updated for inflation and the increases to general damages. However here the period of time is much shorter, because I can only take account of the conduct forming part of the claim, and some of Mr Starte’s submissions on quantum seemed to me to count back to matters which did not form part of the claim. I accept that the use of anonymity added another dimension to the claim, and that a particularly unattractive feature was the parodying of Mr Shulman’s religious beliefs in the texts. However the injunction was, at least to a large extent, successful in bringing the behaviour, whoever had carried it out, to an end. Conclusion

[152]For the detailed reasons given above I find that Mr Smith has acted in breach of the terms of the compromise agreement, and that the Claimants are entitled to relief in that respect. I will need assistance from the parties on the form of relief. I do not find that Mr Smith has harassed the Claimants, and dismiss that part of the claim. The claims not pursued at trial will also be dismissed. Therefore there will be judgment for the Claimants against the Defendant on part of the claim.