Oyston v Reed [2016] EWHC 1067 (QB)

Case No B90MA277[2016] EWHC 1067 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Manchester District Registry, Royal Courts of Justice, Strand, London, WC2A 2LLDate 9 th May 2016
Before
MR JUSTICE LANGSTAFF
Between
KARL SAMUEL OYSTONClaimantSTEPHEN REEDDefendant
Mr T. E. Shannon (instructed by Seddons) for Claimantin Person for DefendantHearing Hearing date: 11 March 2016
Judgment
[1]The Claimant brings an action for libel against the Defendant. The Claimant is the Chairman of Blackpool Football Club Ltd (“Blackpool”). The Defendant is a fan of Blackpool. Together with a number of other fans, he has been concerned with the way in which the Club has been managed since the Claimant’s father was involved in its purchase.[2]The Claimant told me, and I accept, that he – and his wife, Victoria – have been the subject of on-line abuse, some of which has come from the group of fans of which the Defendant is part, which has caused both him and his family concern and distress. He would like it to stop.[3]The Defendant posted material relating to the Claimant on-line on 25th June 2015 (or thereabouts). He did so on a website entitled “BackHenryStreet”, a website used by followers of Blackpool Football Club.[4]The words, as they appeared in that publication, were these:
“A matter of far graver concern is that how can a representative of a Defendant by a The High Court continue to assist when complying to court orders then faced such venomous and abusive hostility and criminal activity? The facts of the incident have since been reported to the court as Oystons are in deliberate and aggravated contempt of court. This is a serious offence in itself and it is punishable by a prison sentence of up to two years. Oyston’s scurrilous behaviour is destined to bully with the threat of violence to prevent myself from providing David and Jez from using my best endeavours in determining justice. I am prepared to swear on Oath that the facts in my draft witness statement are truthful. Raggy has also signed to say he believes the events to be the truth. I guess time will tell and no amount of threats to the police regarding civil action from Karl Oyston should ever alter, sway of effect the course of justice or protect the Claimants from brandishing a shot gun to intimidate the defence. The situation is aggravated because after the gun toting in Waddington by Karl Oyston I formally complained to the Chief Super and never received the curtesy of a reply. If the police had taken my complaint seriously regarding Oyston and his guns or at all, then it is reasonable to assume that the altercation on Thursday may never have occurred. Karl Oyston I put it to you that your behaviour was a deliberate and calculated act to pervert the course of justice whereas your father is just a pervert.”
[5]It was not disputed before me that the posting referred to the Claimant.[6]The Claimant complains that:(i) the words “a matter for grave concern… then faced such venomous and abusive facility and criminal activity?” meant and were understood to mean that the Claimant had subjected the Defendant Stephen Reed to venomous and abusive hostility and had been guilty of criminal activity toward him;(ii) the words “Oystons are in deliberate and aggravated contempt of court” meant and were understood to mean that the Claimant had committed a deliberate and aggravated contempt of court;(iii) the words “this is a serious offence in itself and is punishable by prison sentence of up to two years” meant and were understood to mean that the Claimant had committed a criminal offence which was punishable by prison sentence of up to two years and was serious;(iv) the words “Oyston’s scurrilous behaviour is destined to bully with the threat of violence to prevent myself from providing David and Jez using my best endeavours in determining justice” meant and were understood to mean that the Claimant had engaged in scurrilous behaviour toward the Defendant, had bullied him, threatened him with violence, and did so in order to prevent him from providing other persons (David (Ragozzino) and Jez (Jeremy Smith) with his best efforts to assist them in litigation (their defence of a libel action brought against David Ragozzino by Karl Oyston);(v) the words “I am prepared to swear that the facts in my draft witness statement are truthful. Raggy has also signed to say he believes the events to be true” meant and were understood to mean that the Defendant had made a formal witness statement setting out facts which amounted to, or described, threatening and intimidating actions by the Claimant toward the Defendant, accompanied by the handling of a firearm in a threatening way. They also implied that David Ragozzino had witnessed those events or had some objective means of knowing that the events as the Defendant described them had indeed happened as he said they had;(vi) The words “no amount of threats to the police… should ever… protect the Claimants from brandishing a shot gun to intimidate the Defendants” meant and were understood to mean that the Claimant had brandished a shot gun in order to intimidate the Defendant;(vii) the words “…after the gun toting in Waddington by Karl Oyston I formally complained to the Chief Super…” meant and were understood to mean that the Claimant had been guilty of “gun toting” (namely handling or brandishing a gun in an indiscriminate uncontrolled or improper manner) such as reasonably to justify a formal complaint by the Defendant to a Police Chief Superintendant;(viii) the words “I put it to you that your behaviour was deliberate and calculated to pervert the course of justice” meant and were understood to mean that the Claimant’s actions were calculated to pervert the course of justice, involving threatening or intimidating the Defendant with a gun.[7]These meanings have not seriously been disputed before me.[8]It was claimed that the reference to “my draft witness statement” referred to an account given by the Defendant to David Ragozzino which had been published on a website “fansonline.net” (with the URL of “http://www. fansonline.net/blackpool”) about 25th June 2015. It was asserted that the website was read by many persons, amongst them followers of Blackpool Football Club and readers of the BackHenryStreet website. Under the heading “the Afro Man’s account” (“Afro Man” being a reference to the Defendant, Stephen Reed) was the account, in these words:
“I went to Bloomfield Road (BFC Hotel) to hand in the defence documents for Jeremy Smith as he has been issued papers by the Oystons claiming defamation of character. I went to the Reception and handed the defence to a blond haired lady and requested she gave it to Graeme Woodward (Oyston’s solicitor). I then left and on exiting the building I saw an old friend that was doing some work for BFC. I stood talking to him close to the entrance of the BFC Hotel when a dark-bronze coloured 4X4 vehicle came into the car park. It stopped as it couldn’t get into the space it wanted due to a bollard being in place. Out stepped Karl Oyston and immediately started to rant at me shouting “What the fukc are you doing here, fukc off now!!!” he shouted other things that I can’t recall word for word exactly, but he was visibly foaming at the mouth and stuttering as his anger grew. I said back to him, “Karl, stop shouting you are going to lose your voice you son of a rapist”
. He then jumped back in his car having moved the bollard, parked up, then got out with his shot gun in hand. He told me basically get off his fukcing land now. I honestly thought he was going to shoot at me, so I immediately started to cross the road and get to my car. I left and went straight to Jeremy Smith’s letting him know I don’t think I can carry on this if it’s going to result in me being shot!!! I was there simply handing in legal papers in a professional manner and was set about and made to fear for my safety, or even my life, how can that be right?” (The mis-spelling is in the original)[9]The Claimant complains that those words meant and were understood to mean that the Claimant became enraged and entered into a foul mouthed rant at the Defendant in a public place; that he had held a gun in such a manner as reasonably to make the Defendant believe that he the Claimant was about to shoot at him, and by reference to “set about and made to fear for my safety, or even my life” that the Claimant had assaulted the Defendant and had put him in fear for his safety or even his life, bringing this about by his behaviour and in particular the manner in which he handled a firearm close to the Defendant.[10]Proceedings for these alleged libels were issued on 8th July 2015. No acknowledgment of service was filed. Judgment for the Claimant was entered in default by District Judge Moss by order dated 13th August 2015. No application has been made to set that judgment aside. Liability is therefore made out.[11]The proceedings before me, therefore, were to determine what should be awarded to the Claimant by way of damages, and whether the Court should grant the order he sought restraining the Defendant from the publication of the same or similar libels.[12]The Defendant made a defence statement dated 20th January 2016. In that he explained that there had been an armed raid at his home in consequence of which he suffered from PTSD. The implication of this was that it might explain his reactions to events where he may have seemed unduly to take alarm. He described the legal action as “wholly vexatious” (although judgment had been entered, and he had taken no steps to set it aside) and made allegations about the identity and behaviour of solicitors instructed by the Claimant. These allegations are irrelevant to the question I have to decide.[13]In other parts of his defence statement he accused “the Oystons” of brow-beating some fans, and of abusing the High Court in what is described as “criminal behaviour”. In the course of it however, he said “I accept that the posting on the Back Henry Street was me but was truthful and honest opinion. It was made under duress and remains fair comment and totally justified based on my eye-witness opinion as a victim in shock and a witness to Karl Oyston’s behaviour towards me.” He described the Claimant as a “very angry and dishonest person” and that it was dangerous and inappropriate for him to have a shot gun in a public place when he had previously brandished and discharged a firearm in the presence of fans. With a view towards showing that the Claimant had no reputation to lose, allegations were made about his having a criminal record. As to the imputations drawn from the words used in the posting, which the Defendant therefore accepted he had written, he said that they were “substantially true” and that in any event it would be impossible to harm the Plaintiff’s reputation as he is a criminal with over 20 years of offences.[14]The central incident to which reference was being made in the posting, and the witness statement, was recorded on CCTV. There were two different camera angles showing the same events. Though the recordings had been in existence since 25th June 2015, the Defendant did not attempt to inspect them until he saw them for the first time at court. Having done so, he accepted openly and publically that the Claimant had not brandished a gun at him. He maintained he had not told “lies” about the incident since he had given his honest opinion. In effect, what he said was that he understood that Mr Oyston had in the past been convicted of possession of a shotgun (this was untrue) and had discharged a firearm on an occasion when a number of fans had demonstrated at his home (this had some basis in fact, since the Claimant did fire a gun at what I was told was a clay pigeon shoot, which was in progress as the demonstration approached. However, the Claimant told me, and I accept, that he did not fire the weapon as the demonstrators approached. There is no truth in any suggestion that he fired it at or over the heads of the demonstrators.) In respect of the respect of the events of 25th June 2015, he claimed that as he looked across the road it appeared to him as though the gun was being brandished. It was a sunny day. He caught the reflection of the sun off the barrel of the gun which Mr Oyston was carrying. With his view of what had happened previously in mind, he interpreted this as the Claimant pointing the gun in his direction. Though he now accepts this did not happen, he had honestly thought it did. The Events of 25th June[15]I have studied the CCTV recordings. I have taken the evidence of the Claimant, and that of Mr Reed. Mr Ragozzino, of whom it was said that he thought the Defendant’s statement to be true, was not present on the 25th. His view of the truth of that which the Defendant said could be based on nothing more than a hearsay account given to him by the Defendant, and his willingness to accept as true that which the Defendant said: it provides no independent support whatsoever to the Defendant’s then account.[16]The Defendant had been banned from Blackpool Football Club. This he accepts. He had spoken in court for David Ragozzino in defence of the libel action earlier brought against Ragozzino by the Claimant. He was involved in the action concerning “Jez”. He thought it was appropriate, despite the ban, to go on to Blackpool Football Club premises in order to deliver a document relating to the case. He did not leave straight away, but stayed, talking to someone he knew outside, between the building and the car park. It was then that the Claimant arrived. He drove into the car park (which was part of the premises owned by Blackpool FC, and which opened off a road which is a public highway). He had to move a bollard to park his car in a bay at one end of the car park. In doing so the car came close to where the Defendant was. The Claimant saw the Defendant, and asked him to leave forthwith, using robust language. The Defendant did. He left the property of the football club, and walked towards his vehicle which was on the far side of the public road off which the car park opened. As the Defendant reached or came close to his car, the Claimant, who was paying no significant attention to the Defendant at the time, went to the boot of his Land Rover, opened it, and took out a gun. He owns farm land. He had been there that morning. He had used the gun on that land earlier in the day. There was nothing improper in its use. He could not leave a gun unattended in a car both for obvious reasons of safety, and because if he did so he would be in breach of the obligations resting upon him as a gun owner. He therefore took it out in order to take it with him into the building where it could be securely stored, at least for the time being. He did not have a gun case in which to carry it. When he took it out of the boot, the barrel pointed downwards. He held the gun by his side – in fact, on his right hand side; the road across which the Defendant had walked had been to his left. Since Mr. Oyston’s body was between the gun and the Defendant, it could only partly have been visible to him. The stock of the gun is made of a plastic composite, and is not reflective. Mr Oyston told me that the barrel of the gun is black matt. I accept that. He did not think the gun would be reflective. There is no indication on the CCTV footage that it was reflective. The central point however, is that the gun barrel was pointing downward throughout the time that the Claimant walked from his Land Rover through the car park to the door of the building through which he entered. He did not brandish it nor raise his arm as if he might be doing so. The probability is that no reflection would be seen by any objective observer.[17]In short, there was no reasonable basis on which to think the gun was brandished or that in any way Mr Oyston threatened the Claimant with it. I do not accept that it was at all reasonable to think that in the act of taking the gun, in the manner he did, into the building from the boot of the car, Mr Oyston was in any way threatening the Claimant.[18]The libel painted the opposite picture. It was untrue. Publication was made to the world at large, since the defamatory statements were posted on the Internet. However, the website BackHenryStreet was of particular interest to supporters of Blackpool FC Ltd. Fansonline was of interest to football supporters more generally. Both were seen by what I accept would have been a substantial number of viewers.[19]The Claimant seeks an award of aggravated damages. He does so because following the publication, the Defendant did not apologise nor retract the allegation: until the first morning of the court hearing he was still asserting the truth of his story about the events of 25th June. One particular incident, however, caused significant additional upset to the Claimant. An email of 20th July 2015 was sent to the Claimant’s wife, Victoria Oyston. She gave evidence about it and its effect. It was scurrilous, offensive, and deeply unpleasant. Its author was the Defendant. When Mrs Oyston was called, the Defendant said that he was deeply ashamed of the email. He said it had not been intended for the eyes of Mrs Oyston. It emerged that the email had been circulated to at least some 17 others. It was sent from Mr Ragozzino’s email account, and addressed to “The chairman’s shadow, Blackpool Football Club”. It began “Dear Victoria”. The opening words asked her to “forward the crucial evidence that supports your husband’s contention that I am in receipt of a banning order”. The fourth paragraph begins with the words “Victoria please answer the following…” Though the Defendant’s explanation was that it had never been intended to send this email to Mrs Oyston. and it was sent in error, this is difficult to accept, given the fact that it was addressed to “Victoria”, refers repeatedly to “your husband”, asks her personally to answer the (offensive) questions which the email contains at length, and was sent to her email address. Though he has since thought better of it, the only conclusion I can draw on these facts is that at the time it was sent deliberately to her. I have no doubt that after posting the libel on which this claim is centred, the Defendant continued abuse of the Claimant, and involved his wife.[20]The Defendant was in person. I gave him considerable range to ask questions which might be relevant in arguing for a reduction in what would otherwise be the award to be made for the libel. I considered that it was relevant that he could explore the use by Mr Oyston of weapons, and the extent to which it might be said that Mr Oyston had no reputation to damage.[21]Of the 7 categories of admissible evidence listed in Gatley of that which can mitigate damage, I thus allowed some exploration of the Claimant’s bad reputation as it was alleged to be; the facts relevant to the contextual background (in particular relating to use of weapons); facts which tended to disprove malice; evidence as to the Claimant’s own conduct; and whether (and when) there had been an apology or other amends.[22]Evidence of bad reputation is as expressed by Lord Denning in Associated Newspapers v Dingle 1964 AC371:
“In order to show that a man has a bad reputation, you should call those who know him and have had dealings with him. They are in a position to judge his work. If you call those who know him well, you are likely to get at the truth… but if you go beyond these, you immediately get into the realms of reports and rumours, often enough spread by busybodies who know nothing of the man, or indulged in by newspapers for the benefit of their circulation…”
[23]Evidence of rumours that the Claimant had done what was charged in the libel, and evidence of particular acts on the part of the Claimant tending to show his character and disposition, are not admissible: Scott v Sampson (1882) 8 QBD 491 at 504; Plato Films [1961] AC 1090, at 1136.[24]I have taken into account the factors I have mentioned. It was argued by Mr Reed that the Claimant had no reputation to lose, given his inclination to use weapons. For this, he relied upon the fact – as the Claimant admitted – that he was convicted before the Lancaster Magistrates when a teenager for possessing an offensive weapon in a public place. It is the only offence involving potential for violence of which he has been convicted, for over 30 years: it was in 1984. It has little if any effect upon the reputation of the Claimant today. The conduct of the Claimant during the incident was blameless. He accepted that he now keeps his gun in a gun case, to avoid any possible misinterpretation of his actions in future: but I am satisfied having seen the CCTV recordings that he did not threaten nor indicate violence to the Claimant (or for that matter, to anyone else) involving the use of any weapon, let alone a gun.[25]The Defendant very belatedly accepted that the Claimant had not done that which he had asserted on the website the Claimant had. I should take this admission into account, though its effect must be limited because it was made so late. Similarly, I take into account the fact that he unreservedly apologised for, and described himself as ashamed of, the email sent to the Claimant’s wife. On the face of it, however, the email appeared intended for her to receive and read, and I must take that into account too in aggravation of the damages.[26]Those factors which tell in the opposite direction, towards increasing an award of damages, are the absence of any retraction until the hearing (indeed, during the case the Claimant persisted in displaying hostility towards Mr Oyston, based in part upon(a) the fact that his father was Owen Oyston who has fallen foul of the courts, and(b) that he disagreed with the board’s management of the football ground. Whatever the origins of this hostility, when it was expressed it came close to irrational, unpleasant and unnecessary abuse. The reassertion throughout the case until the day of the hearing that the allegations were true; challenges to the litigation, irrelevant and abusive remarks made by a Claimant about members of the Claimant’s legal team, the degree of hostility which was expressed, a lack of repentance and continued and frequent abuse of the Claimant and his lawyers are all factors which a court is allowed to take into account in assessing libel damages, and these are all factors in this case even if “lack of repentance” was moderated here by the Defendant’s late and public recognition of the untruth of the allegations, and his unequivocal expression of shame for the emailed letter to Victoria Oyston. The hostile animus displayed by the Claimant undoubtedly serves to increase the level of damages.[27]Whilst this judgment was in the course of preparation, I was sent a four page document by the Defendant alleging that Mr Oyston had been guilty of perjury during the libel proceedings against Ragozzino, had falsely claimed that Police Sergeant Laidlaw had told lies, in respect of events at a match between Blackpool and Huddersfield, and had falsely claimed that the removal of a statue of Stanley Mortensen was because of safety concerns initiated by the Police. The Defendant accuses Mr.Oyston of deceiving successive High Court Judges (Jay J., HHJ Stephen Davies sitting as a judge of the High Court, and me), suggests that both Mr. Oyston and his wife Victoria committed perjury before the Rushton and Holden Blackpool magistrates’ court in January 2016 before District Judge Brailsford, and suggests that Mr. Oyston is not a fit person to hold a fire arms certificate considering “his previous firearms conviction”. Since the Defendant says that he has made a formal complaint to the police regarding the matters he raises, since it is unclear whether he has sent a copy of this communication to the Claimant or his legal representatives (against whom he also makes allegations of dishonesty), and since he had a full opportunity to address me on the last day of the hearing before me, I doubt that this communication can have any purpose but to seek to influence me against the Claimant when making my decision. It has had the opposite effect so far as my willingness to grant an injunction is concerned, since it emphasises the very real and continuing risk that unless restrained by the threat of imprisonment for contempt the Defendant will continue to make similar accusations against Mr Oyston. It also represents further aggravation of the libel, in that – as I make clear above – Mr Oyston has never been convicted of a firearms offence. It seems the Defendant has simply not been prepared to accept the evidence that the offensive weapon offence of which Mr. Oyston was convicted as a youth was not in respect of a firearm.[28]I have ensured that a copy of the document has been sent to the Claimant’s solicitors for their comments. The delivery of the judgment was delayed awaiting the submissions of the Claimant, who was plainly entitled to respond to the allegations, some serious but mainly wild, unfounded, and calculated more to throw petrol on the flames of dispute between those opposed to the management of Blackpool by the Claimant than they are to throw water. Since it has been clear that the submissions were being sent to the legal advisers of the Claimant, I have had further intemperate and accusatory material from the Defendant. He repetitively alleges perjury by the Claimant and Mrs Victoria Oyston. If he has any evidence of this worthy of the name, he should provide it to the Police, and otherwise hold his peace.[29]The Claimant was asked in the course of his evidence why he wished to bring the proceedings. His reply was to the effect that he wished to do what he could to stop the continued abuse of himself and his family. Central to this is the grant of an effective injunction to prohibit the Defendant from repeating the libel or anything of its sort.[30]In assessing the damages to be awarded for defamation I have taken particular account of the helpful observations of the Court of Appeal in Cairns v Modi [2012] EWCA Civ1383, as regards(i) the need for proportionality in libel awards(ii) the scope of publication(iii) taking an approach which recognises the need for vindication and(iv) the lack of necessity for a detailed breakdown of the award. The damages must not be out of proportion to those awarded for damages for serious personal injury.[31]In court, and in his written submissions, Mr Shannon (who appeared for the Claimant) referred me to a number of reported cases. He asserted that the level of damages fell between £20,000 and £50,000, as indicated by those cases to which he drew my attention. Many of the cases he mentioned are referred to by Gatley as exemplars.[32]Despite the fact that in one of the cases (not itself referred to in Gatley) HHJ Stephen Davies considered an action earlier brought by Mr Oyston against David Ragazzino in which the Claimant acted as his “McKenzie friend”, and indicated that the nature and tone of the statements were not such as to inspire any confidence in the credibility of the author of the content of the posts in question in those proceedings, the particular allegations made in respect of the brandishing of a gun surfaced in this case within a week. Further libel had not been discouraged by the award in that case. It was plain from the considerable body of support for the Defendant in court that a number of local people are keen to believe matters derogatory of the Claimant which they think might be true, even if with more careful thought they would reject them. The effect of allegations such as those made in the present case appears to have been to stir up, and maintain, resentment of and hostility toward the Claimant so long as he remains involved with the running of Blackpool. For this reason, even though the allegations were made in an extreme and colourful form they cannot be dismissed as unlikely of belief by the general public who have access to the website. This point is demonstrated by the fact that the Defendant’s story that the Claimant had threatened him with a gun was repeated and re-published in the national press on their websites on 2nd July 2015 (by the Daily Mail) and 3rd July (The Guardian and Daily Record) and featured on BBC TV news (on 2nd July 2015). It is not possible to be precise as to the numbers who saw the post save to say that it was considerable.[33]Balancing what little may be taken to mitigate the effect of the libels, on the one hand, and setting that against the extent of publication, the continued repetition of untruths, the aggravation of it by sending the scurrilous letter to Mrs Oyston, the distress and hurt which the allegations have caused the Claimant, and the need for vindication, the least sum which I can award is one of £30,000. In addition the Defendant will pay the Claimant the Claimant’s costs of the action, to be subject to a detailed assessment.[34]I have not lost sight of the fact that the Defendant says that he is an undischarged bankrupt. The effect of his submissions is that the action is pointless because no award could be enforced against him. I am satisfied that unless restrained there is a real risk that the Defendant will repeat the libel or otherwise subject the Claimant and his wife to harassment. Indeed, under the cover of making further submissions to the court it may well be that the Defendant has already done just that: I am, however, not considering whether the Defendant has by his conduct committed what would be both a criminal offence and a tort under the Protection from Harassment Act1997, merely the amount of an appropriate award to mark the libels in issue in the current proceedings, sufficient to vindicate the Claimant, and to make an order providing that the Defendant may be committed to prison if in future he repeats conduct towards the Claimant or his family which is of the same sort. I make the order as asked, but the Defendant should be under no illusion that he will be in contempt of court and liable to imprisonment if he repeats the libel, or if he commits any further acts of harassment against the Claimant, or his wife. I include under the heading “acts of harassment” the sending of abusive communications, whether by post or electronically, or the posting of any such material on any website or on social media: but I should emphasise that “acts of harassment” are not limited to such acts. I invite the Claimant’s lawyers to draw up an appropriate form of order to reflect those final words appropriately.

Cited in 4 later judgments