Mensah (t/a 37 Days 3 Hours 9 Minutes Creative) v Darroch & Ors [2014] EWHC 692 (QB)

Case No HQ13X04396[2014] EWHC 692 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 19/03/2014
Before
THE HONOURABLE MR JUSTICE TUGENDHAT
Between
DAVID MENSAH trading as 37 DAYS 3 HOURS 9 MINUTES CREATIVEClaimant(1) JEREMY DARROCHDefendants(2) DUNCAN GRAY (3) MARK ROWLAND (4) BRITISH SKY BROADCASTING LIMITED (5) SHINE GROUP (6) INDIE MEDIA GROUP (7) HANNAH DODSON (8) CHANNEL FOUR TELEVISION CORPORATION (9) ITV PLCDefendant
Edmund Cullen QC (instructed by Wiggin) for 2 nd 5th 7 th and 8 th Defendantsand (instructed by Sheridans) for 3 rd and 6 th DefendantsTom Moody Stuart (instructed by Charles Russell) for 1 st 4 th and 9 th DefendantsThe Claimant appeared in person for in personHearing Hearing date: 5th March 2014
JudgmentMr Justice Tugendhat :THE CLAIM
[1]On 3 September 2013 Mr Mensah issued a claim form against six Defendants which he amended on 25 September (pursuant to the order of the Master on 24 September). The Brief Details of his claim as amended read as follows: “The claimant asserts that defendants 1-6 have fraudulently misrepresented and or deceived as to the creative origins of the commercial business proposal from which the television series SingDate (aired on Sky Living) was derived. The claimant further asserts that the collective reason for such was at least in part due to a shareholder derivative action that stated compelling complaints against the recent purchase of Shine by News Corp. As such there was added benefits to the defendants if the claimants unique and commercial singing and dating business proposal came from Shine Group at that time, rather than from the claimant. In support of the initial fraudulent misrepresentation and or deceit, and to oppress the claimants work and industry reputation, the claimant further asserts that under the direction and or influence of defendants 1-6, collusive schemes directly involving defendants 7, 8 and 9, and other individuals and organisations directly associated with one or more defendants, have been and are being perpetrated against the claimant”.[2]The Particulars of Claim and Amended Particulars of Claim (“APOC”) bear the same two dates.[3]Between those dates, on 5 September 2013, Mr Mensah had issued an application for an injunction which Dingemans J had dismissed on 13 September. The injunction he had sought was that the then Defendants be restrained from making, broadcasting or distributing a TV programme called SingDate.[4]On 28 January 2014 Mr Mensah filed an unsigned witness statement in support of an application for summary judgment dated 10 January. He attached a draft Order and what he referred to in the draft as “clarifications” of his claims for the torts “Fraudulent Misrepresentation and or deceit”, “Breach of Fiduciary Duty” and “Breach of Confidence”.

THE PARTIES

[5]In the APOC Mr Mensah describes the parties as follows: “2. The first defendant is Jeremy Darroch, Chief Executive Officer of BskyB. He was appointed CEO in December 2007, having previously been Chief Financial Officer.2.1 The second defendant is Duncan Gray who was previously an executive of BskyB with the title Head of Entertainment Sky1, Sky2 and Sky3, having previously been Controller of Entertainment for ITV. After Duncan Gray resigned from BskyB, he subsequently became Creative Director for Princess Productions, which is part of Shine Group and wholly owned by News Corp.2.2 The third defendant is Mark Rowland, Chief Executive Officer of Indie Media Group. Until the end of 2003, Mark Rowland was Managing Director of TV production company, Mentorn International, responsible for the launch of ‘Paradise Hotel’ on Fox in the USA as well as other proposals.2.3 The fourth defendant is British Sky Broadcasting Group Plc commonly known as BskyB and trading as Sky, a British satellite broadcasting, broadband and telephone services company headquartered in London, with operations in the UK and Ireland and is the largest Pay TV broadcaster in the UK and Ireland. BskyB (is or has recently been) a major shareholder in ITV plc. BskyB is listed on the Stock Exchange and is a constituent of the FTSE 100 index. News Corp own in the area of 39.14 per cent controlling stake in BskyB. BskyB was a 5% shareholder in Shine before its April 2011 sale to News Corp.2.4 The fifth defendant is Shine Group a company that includes production companies of scripted and non-scripted television, responsible for programmes such as Master Chef and The Biggest Loser. Shine Group companies include UK-BASED Dragonfly, Kudos, and Princess Productions. It also includes Shine TV, plus Metronome Film &Television, a Scandinavian-based production group. Shine International is the group’s international distribution arm and is responsible for the distribution of the various formats of the group. The group has also established international companies in Shine America, Shine Australia, Shine Germany, Shine France, and most recently Shine Iberia. Shine acquired Reveille Productions in 2008. News Corp acquired Shine on or around April 5, 2011 for approximately £415 million. US pension funds who are shareholders in News Corp initiated and successfully settled a shareholder derivative action against News Corp executives. The complaints challenged inter alia the Company’s reasons for entering into the proposed Shine Acquisition, as well as the process leading to and price of the proposed Shine Acquisition, whilst accusing Mr. Rupert Murdoch (inter alia) of nepotism.2.5 The sixth defendant is Indie Media Group Ltd. Indie Media Group operates in television and social media from London offices with a postal address in Los Angeles. Indie media engages in the production of television shows in the United States and the United Kingdom. It also provides talent management services; and operates digitaldollhouse.com a digital doll house that allows players to design and furnish their own virtual dream homes. Indie Media Group seems to have been incorporated in 2004 (and is based in London, the United Kingdom) but as to the specialised area of Television to which this claim pertains, no records of previous tv format co-productions by Indie media Group could be found by the claimant.2.6 The seventh defendant is Hannah Dodson Executive Producer for Entertainment at Channel Four Television Corporation, Hannah Dodson is or has been a regular member of staff on a contract basis with Channel 4, such contract seemingly also allowing her to provide services to other broadcasters and or production companies without a specified interval. In recent years Hannah has provided services for an ITV broadcasted game show series and more recently to BskyB for a talent related game show.2.7 The eighth defendant is Channel Four Television Corporation, a British public-service television broadcaster which began transmission on 2 November 1982. Although largely commercially self-funded, it is ultimately publicly owned; originally a subsidiary of the Independent Broadcasting Authority (IBA), the station is now owned and operated by Channel Four Television Corporation, a public body established in 1990, coming into operation in 1993.2.8 The ninth defendant is ITV plc, the oldest and largest commercial television organisation in the United Kingdom. The channel, which is currently branded ITV by ITV plc, has vied with the British Broadcasting Corporation’s BBC One for the status of the UK’s most watched channel since the 1950’s (a crown it only lost in or around 2005). Also ITV Studios (formerly ITV Productions and previously Granada Productions) is a television production company owned by ITV plc and is primarily based in Manchester and London and has recently been a significant buyer of young creative companies and the innovative format rights which such companies own. ITV plc is listed on the London Stock Exchange and is a constituent of the FTSE 100 Index. BskyB is or has been a significant shareholder in ITV plc, and relationships between staff of both companies also reflect the strong links from movement of key executives from one company to the other.[6]The Defendants do not accept that those descriptions are all accurate, but they accept that the inaccuracies could be cured by amendment. And for the purposes of this judgment the inaccuracies are immaterial.[7]In APOC para 3 Mr Mensah gives his description of News Corp, Elisabeth Murdoch, and others who he claims, are participants in the conduct of which he complains.

THE APPLICATIONS BEFORE THE COURT

[8]On 30 September 2013 the 1st to 6th Defendants issued an application notice for an order that the claim be struck out pursuant to CPR r.3.4 (2)(a), (b) and (c), or that summary judgment be entered pursuant to CPR r.24.2 on the ground that the claims have no real prospect of success. On 1st and 7th November 2013 the 7th and 8th Defendants together, and the 9th Defendant separately, issued application notices claiming the same relief as the 1st to 6th Defendants, together with an order setting aside the order of 24 September 2014 by which the Master had given Mr Mensah permission to amend.[9]On 10 January 2013 Mr Mensah issued his application notice applying for summary judgment.[10]The law relating to the applications is not in dispute. The relevant provisions of the CPR r 3.4 read:
“(2) The court may strike out a statement of case if it appears to the court – (a) That the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
[11]The rules or practice of the court with which the Defendants submit Mr Mensah has failed to comply are as follows:
“PD 3A para 1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately) fall within rule 3.4(2)(a): (1) those which set out no facts indicating what the claim is about, for example ‘Money owed £5000’, (2) those which are incoherent and make no sense, (3) those which contain a coherent set of facts but those facts, even if true, do not disclose any legally recognisable claim against the defendant.”
[12]CPR r.16.4 provides that Particulars of Claim must include a concise statement of the facts on which the claimant relies. PD16 para 8.2 provides:
“The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim: (1) any allegation of fraud, (2) the fact of any illegality, (3) details of any misrepresentation, (4) details of all breaches of trust, (5) notice or knowledge of a fact,…”
[13]The relevant provisions of the CPR 24 read:
“The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if – (a) it considers that – (i) that claimant has no real prospect of succeeding on the claim or issue; …; and (b) there is no other compelling reason why the case or issue should be disposed of at a trial.”
[14]An application to strike out under CPR r.3.4 is in many cases considered on the pleadings alone, without evidence, although evidence may be admissible to demonstrate abuse of process. Applications for summary judgment are generally supported by evidence. In the present case there was extensive evidence from a very early stage, because evidence was necessary to support and to oppose an application for an injunction.[15]The witness statements of Mr Mensah are dated 5 September and 16 October 2013. He also submitted a witness statement dated 14 November 2013 from a Mr Clues, an expert digital forensic consultant. Although by order dated 14 November 2013 Bean J ordered Mr Mensah to serve any evidence in opposition to the Defendants’ Applications before 10 January, he did not do so. What he did was to submit an unsigned document in January 2014. Even if he had signed it, it would not have assisted his case. It contains no facts relevant to the Defendants’ applications, but questions on the authenticity of e-mails exhibited to witness statements for the Defendants on the basis of the evidence of Mr Clues.[16]There are two witness statements for the 1st to 6th Defendants dated 12 September (Ms Kean and Mr Rowland). Five further witness statements are dated 30 September, and two are dated 31 October. These witness statements are uncontradicted.

THE CAUSES OF ACTION

[17]There is no dispute as to the law relating to each of the three causes of action referred to by Mr Mensah as “Fraudulent Misrepresentation and or deceit”, “Breach of Fiduciary Duty” and “Breach of Confidence”. For the purposes of this application I shall assume that the Claim Form also includes a claim for conspiracy to injure (“to oppress the claimant’s work and industry reputation”).[18]The facts which a claimant must plead if he is to have an arguable claim for each of these causes of action are as follows.[19]To advance a claim for Fraudulent Misrepresentation and or deceit a claimant must plead all of the following: that the defendant has made a representation which is false, that he made it knowing it was false (or reckless as to whether it was true or false), that he made it with the intention that the claimant should act in reliance upon it, that the claimant did in fact rely upon it, and that the claimant has suffered loss as a result.[20]To advance a claim for Breach of Confidence a claimant who is not in an existing relationship with the defendant must plead all of the following: that he has provided to the defendant information which has the necessary quality of confidence, that the information was imparted in circumstances importing an obligation of confidence, and that there has been an unauthorised use by the defendant of that information to the detriment of the claimant. A third party will be liable for misuse of confidential information only if he has used confidential information knowing that it is confidential.[21]To advance a claim for conspiracy to injure a claimant must plead one or other of the two varieties of the tort of conspiracy. He may allege a conspiracy to injure, in which case he must plead that the defendants have combined to pursue a course of action whose object and predominant purpose is to cause deliberate damage to the claimant without any just cause. That is not Mr Mensah’s case, as he makes clear in the claim form. The purpose which he alleges is a benefit to Shine and News Group in the litigation in the USA. So the alternative that he would have to plead is that the defendants have combined to take action which is unlawful in itself with the intention of causing damage to the claimant who does in fact incur the damage. In the present case the unlawful acts pleaded are alleged breaches of confidence, and a breach of confidence is actionable whether or not there is a combination between those who commit it. So the plea of conspiracy adds little to Mr Mensah’s case.

THE CASE ADVANCED BY Mr MENSAH

[22]The APOC cover 36 pages and there are attached 46 pages of e-mails and other documents relied on. The Defendants also referred to the “clarification” put forward by Mr Mensah in January, although no permission has yet been granted to him to amend his Particulars of Claim to include these. This is a practical course to pursue: if it is clear that a claim can be amended to cure a defect, the court will not strike out the claim without giving the claimant an opportunity to apply for permission. Mr Mensah has not in fact applied for permission to re-amend, but I shall assume that he would do so if that would be necessary and effective to cure any defects in his APOC.[23]Mr Mensah is a litigant in person. Litigants in person are at a great disadvantage, but the CPR must apply to them nevertheless. This is because all parties to an action are entitled to a fair trial. Defendants are entitled to know the case being made against them, in particular when the case includes, as this one does, allegations of fraud.[24]In the APOC paras 5.4 to 5.6 Mr Mensah states that his initial contact was with Mr Darroch of BSB. He states that he was invited to submit his business proposal entitled Duets by 8 August 2011. In paras 5.7 to 6 Mr Mensah sets out what he refers to as matters demonstrating his ownership of it. I take this to be an allegation that it had the necessary quality of confidence, albeit that is not said in terms. The Defendants accept for the purposes of this hearing that both Duets and Mr Mensah’s other proposal Seven were capable of being information with the necessary quality of confidence. He describes Duets as a “singing and dating game show”.[25]In para 8 Mr Mensah pleads the litigation in the USA involving Shine which is referred to in the Claim Form. I take this averment to be one of a fact from which the court is asked to infer that one or more of the Defendants had a purpose relating to that litigation in acting as it is alleged that they did.[26]In para 9 Mr Mensah pleads that he submitted his Duets proposal on 8 August 2011 and that he received an e-mail from Mr Gray on 27 September. The e-mail included the words:
“I won’t be taking the format you have written any further for any of the Sky channels … it was only today that I had the time to read and consider your idea…”
[27]Mr Mensah also alleges in paras 9.3 and 10 that Mr Gray’s statement that he had only read the proposal that day “9.3 … is a fraudulent misrepresentation or deceit, to open up opportunity to successfully redirect the Creative ownership and Rights ownership from the claimant to the defendant Mark Rowland for Indie Media Group (and or other parties) and Shine Group. 10. Some weeks later … Duncan Gray … resigned from BskyB (the most dominant shareholder of which is News Corp) and moved to Shine Group owned Princess Productions (wholly owned by News Corp)”.[28]As I understand it the case being made by Mr Mensah at that point is not a claim for the tort of deceit as defined above: none of the elements of that tort are pleaded. Rather, it is part of a plea of conspiracy, the allegedly false statement being a device to conceal the alleged collusion between the 4th, 5th and 6th Defendants, and the purpose of the conspiracy being, as alleged in para 8, to benefit Shine (and indirectly News Corp).[29]In paras 11 and following Mr Mensah pleads his case in relation his proposal Seven. He describes this as “a luck based game show, with a NARRATIVE that starts via webcams on the internet and culminates with a face to face studio meetup – ie webcam to webcam elimination rounds as contestants are viewed through their webcams, as they compete from home in elimination rounds via the internet, before winners travel to a face to face studio encounter”.[30]Mr Mensah did not plead in the body of the APOC the date on which he submitted Seven. But he did attach at page 53 a copy of his e-mail dated 23 December 2011 stating that he had submitted it “this week”. And there is in the files a copy of his e-mail dated 18 December in which he submitted that proposal to BSB. I take the submission date to have been 18 December 2011.[31]In para 12 Mr Mensah alleged a further “fraudulent misrepresentation and deceit”. The paragraph as drafted is very difficult to follow, but as I understand it Mr Mensah alleged that Mr Gray, having become an employee of Shine, conspired with his “long time industry friend” Indie Media Group and Mark Rowland, so that:
“12.1 Mark Rowland and or Indie Media Group had been fraudulently misrepresented as, and also fraudulently misrepresented themselves as, authors of and or the originating party of the claimants ‘singing and dating’ proposal now known as SingDate … 12.2 And upon further investigation it also became apparent that business proposal one – Duets – the singing and dating show was combined with business proposal two – Seven , a luck based game show…”
[32]Again, as I understand the case being made by Mr Mensah at that point, it is not a claim for the tort of deceit as defined above: none of the elements of that tort are pleaded. Rather, it is part of a plea of conspiracy and of misuse of confidential information.[33]The only matter pleaded in support of the plea is in para 12.3 which is headed “Main attributes of the two business proposals submitted to BskyB by the claimant that were combined to make SingDate as aired by Sky Living”. In paras12.1 and12.2 Mr Mensah repeated the description of the Duets and Seven given above, which he referred to as “business proposal ONE” and “business proposal TWO”. He added “12.3… (iii) Amalgamation of Business Proposal ONE and TWO – A Singing and Dating television programme where contestants first compete/showcase their talent through a webcam from home in elimination rounds. Contestants are viewed through their webcam, before a winner(s) travel to a face to face studio encounter. 12.4 The above pertinent elements … encompass two of the unique business proposals submitted to BskyB by the claimant and which through a breach of confidence gave rise to the defendants decision to use fraudulent misrepresentations and or deceit as a means to allow Shine Group to successfully claim ownership of the claimants works, whilst also allowing for benefits to the defendant Mark Rowland and Indie Media Group. 12.5 And BskyB did NOT own or have access to such information before the claimant was requested by the defendant Jeremy Darroch to provide such, and would NOT have had access to such information in order to use it unless proper credit and remuneration was to be conferred upon the claimant. And such information was NOT owned by Shine Group before Duncan Gray and Mark Rowlands initial fraudulent misrepresentation and or deceitful actions cause Shine to attain such”.[34]No facts are pleaded other than the alleged similarity between SingDate and Mr Mensah’s two proposals. And that similarity is not explained, in particular in relation to Seven, which Mr Mensah describes, not as a singing or dating show, but as a luck based game show.[35]In paras 12.6 to 14.5 Mr Mensah pleaded further acts carried out to injure him by the 1st to 6th Defendants. He pleaded that in February 2013 he had offered his business proposals to other companies, Warner Brothers and Fremantle Media Group, but that they had rejected them on the grounds of similarity to Sky’s SingDate. These rejections, he pleaded in para 13.1, were the result of the fraudulent claims that the rights belonged to Shine Group and Indie Media Group. In para 14.7 he pleaded that Mr Gray and Mr Rowland had been “using their industry associates and friends in a collusive and discriminatory manner to oppress the claimants ability to try and place his singing and dating proposal elsewhere, as well as impeding other business activities relating to the eventual commissioning of other unique and commercial TV programme proposals of the claimants”.[36]There then follow paragraphs in which Mr Mensah pleads that he had written to Elisabeth Murdoch on 22 March 2012, and that at her request Claudia Danser of Shine had telephoned him, which, he pleaded, demonstrated the interest of Shine in his proposals at a time when Shine was subject to the litigation in the USA. In paragraph 19 and following he pleaded his unsuccessful attempts to obtain a resolution of his claims by agreement. In para 39 he pleaded that Mr Rowland and Mr Gray had influenced the purchase by “‘Fox’ TV America (owned by News Corp)” of another proposal which “utilises major aspects of the unique and commercial singing and dating business proposal belonging to the claimant”. He then pleaded rejections he had received from ITV and the BBC.[37]The e-mail from the BBC included the words “… I am afraid it is not one we wish to develop further with you”. In para 40.7 Mr Mensah invites the Court to infer from these words that the BBC did wish to develop the idea with someone other than himself.[38]By his amendment Mr Mensah pleaded that he had dealt with Ms Dodson and Channel 4, and that Ms Dodson reviewed Duets and Seven but she too acted in collusion with Mr Gray or Mr Rowland. No particulars are given, and it is not stated what relief he claims, or other legal consequences he invites the Court to infer arising from these allegations. He pleads that he is the subject of racial discrimination on the basis that “‘Mensah’ being a name recognised by most as a name of African origin”.[39]In paras 53 and following Mr Mensah pleaded that as Chief Executive Officer Mr Darroch owed fiduciary duties to BskyB, and to Mr Mensah himself, and that in breach of those duties he chose not to investigate the misconduct pleaded earlier in APOC which Mr Mensah alleged had occurred.[40]Throughout the APOC Mr Mensah pleads information which he claims to have discovered about the careers of the individuals he names, setting out links which he alleges they have with each other and with the corporate defendants. From these matters he invites the Court to infer that they had the opportunity and the motive to conspire together to “oppress” or injure him.

THE CASE FOR THE DEFENDANTS

[41]Mr Cullen and Mr Moody Stuart submit that the pleaded case is no more than an assertion, lacking the material facts and matters on which alone such serious allegations of dishonesty and conspiracy can be advanced.[42]They also submit that the only possible defendant to the allegations of breach of confidence can be BSB, since that is the only relevant company to which it is alleged that Mr Mensah submitted his proposals.[43]Further they submit that these defects in the pleaded case are not remediable, so no opportunity should be given to Mr Mensah to attempt to remedy them by a re-amendment.

CONCLUSION ON THE APPLICATION TO STRIKE OUT

[44]In my judgment the submissions for the Defendants are well founded. It is for a claimant to plead a case, if he can. The essential element of Mr Mensah’s case is his allegation that SingDate so closely resembles Duet and Seven that the court should infer that fact alone (absent an explanation for the similarity) those who developed SingDate probably used information provided to BSB by Mr Mensah. Mr Mensah has made no serious attempt to set out the similarities he alleges exist, and the terms in which he described Seven suggest that there is in fact no similarity between SingDate and Seven.[45]It follows that the claim must be struck out in its entirety unless there is a different case which has a real prospect of success which Mr Mensah could plead if given the opportunity to do so.[46]It was in part to demonstrate that there was no such alternative case that the Defendants relied on the extensive evidence that they have adduced in the witness statements referred to above.[47]The central point of that evidence is that contemporaneous e-mails and other documents appear to demonstrate that SingDate was in fact developed by Mr Rowland commencing in 2009, and that even if there were similarities between SingDate and Duets which might otherwise give rise to an inference of misuse of confidential information, there is an explanation for the relevant features such that on the facts the court could not infer any use by any of the Defendants of any proposal by Mr Mensah.[48]By letters dated 11 and 13 September 2013, as soon as the claim form had been served, solicitors for the Defendants wrote to Mr Mensah saying that there was a clear chain of evidence showing that Mr Rowland was developing and pitching a singing and dating proposal from 2009, and that the only element that SingDate has in common with Duets is that both involve singing and dating, which, alone, cannot be protected in law.[49]It was in response to evidence from the Defendants that Mr Clues prepared his witness statement. He considered documents included in the Defendants’ exhibits which had been provided to him by Mr Mensah, in particular what he referred to as “five documents purporting to be email messages contained in one of the bundles”. In relation to three of them he wrote that he would like to see the original. In relation to the fourth he stated that its format suggested that it was the print out of a document and not an email. In relation to the fifth, which appeared to be an email which lacked a header, he considered the possibility of a fabrication.[50]The lack of the header in the fifth document was, as appears from the bundles in court, because the e-mail in question was printed over two pages, and the header was on a different page from the text of the e-mail. Mr Mensah had provided Mr Clues with incomplete documents. The e-mail in question is part of a chain of emails exchanged in June 2011 (that is before Mr Mensah had submitted Duets to BSB) between Mr Rowland and Mr Gray relating to a proposal that was then called Blind Duet.[51]In his submissions before me Mr Mensah did not advance an allegation that the documents exhibited by the Defendants included forgeries. There was no basis on which he could have done so. Since the documents are genuine, there can be no case now which he could advance on which the court could infer that any similarities there may be between SingDate and Duets are the result of misuse of the information that Mr Mensah had provided to any of the Defendants. The documents are consistent only with SingDate having been developed independently.[52]The courts are familiar with the idea that when two documents or proposals resemble one another that may not be the result of copying. Two different people can, and often do, have the same idea.

DISCRIMINATION

[53]Discrimination is not a tort. Any remedies for racial discrimination must be sought in other proceedings in other proceedings. But in fairness to the Defendants I must state that there is no basis for the allegations of discrimination made against them. Mr Mensah has explained a number of e-mails which purport to come from a Mr Levi were in fact sent by himself. And none of the Defendants met Mr Mensah at the time when they rejected his proposals for Duet and Seven. Racial discrimination is a very serious matter. Allegations that individuals are guilty of it cannot be advanced simply on the basis that the person making the allegation happens to have signed some of the e-mails with his true name, which is of African origin.

CONCLUSION

[54]It follows that since there is no case which Mr Mensah could now plead which would have a real prospect of success, the whole claim must be struck out. It follows from this that Mr Mensah’s application for summary judgment must be dismissed and that I do not need to consider the Defendants’ applications any further.

CIVIL RESTRAINT ORDER

[55]CPR r.3.4(6) provides:
“(6) If the court strikes out a claimant’s statement of case and it considers that the claim is totally without merit – (a) the court’s order must record that fact; and (b) the court must at the same time consider whether it is appropriate to make a civil restraint order.”
[56]CPR r.3.11 and the Practice Direction provide for such orders. PD 3C provides that “3.1 An extended civil restraint order may be made by – … (2) a judge of the High Court; … where a party has persistently issued claims or made applications which are totally without merit… 3.2 Unless the court otherwise orders, where the court makes an extended civil restraint order, the party against whom the order is made – 1) will be restrained from issuing claims or making applications in – … (b) the High Court or any county court if the order has been made by a judge of the High Court;… concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order;…”.[57]Mr Moody Stuart submits that that the conditions for the making of an extended civil restraint order are satisfied.[58]In his order dated 14 November 2013 Bean J recorded that two applications made by Mr Mensah by notices dated 5 November were totally without merit. These applications were for a data forensic expert “to verify the evidential emails provided by the defendants by gaining access to their servers” and for assistance from Google UK to provide data from his own gmail account “that has been had been unlawfully deleted or amended”.[59]In my judgment Mr Mensah has been given unanswerable evidence that there is no foundation for his speculation that his proposals have been copied. He will not take no for an answer and persists in pursuing the most serious allegations of dishonesty against the defendants and others whom he names. In these circumstances the overriding objective requires that I make an extended civil restraint order, which I shall do, for the period of two years. It would be an injustice to the defendants and to other users of the court that any resources should be devoted to Mr Mensah’s groundless speculations and allegations in addition to the very substantial resources of time and money that have already been devoted to them.