Woodward v Grice [2017] EWHC 1292 (QB)

Case No B90MA311[2017] EWHC 1292 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue Manchester Civil Justice Centre1 Bridge Street WestVenue ManchesterM60 9DJDate 07/06/2017
Before
MR JUSTICE KING
Between
Graham WoodwardClaimantAndrew GriceDefendant
Mr Eric Shannon (instructed by Denwis Limited) for ClaimantThe Defendant in person for in personHearing Hearing dates: Friday 15th July 2016
Judgment
[1]This matter came before me on the 15th of July 2016 for a hearing on the assessment of damages and the claim for injunctive relief in libel proceedings following entry of summary judgment on the 31st of December 2015. This is my reserved judgement following that hearing.[2]The Claimant Graham Woodward is an in house solicitor employed by the Blackpool Football Club. To quote paragraph 1 of the Particulars of Claim he:
‘…is a solicitor of the Supreme Court of England and Wales and is employed by the Oysten Group of companies and works as an in-house solicitor for that group of companies which includes Blackpool Football Limited’
[3]The Claimant was represented before me by Mr Shannon of counsel. The Defendant appeared in person and has acted throughout in person. I received live evidence on oath from the Claimant, from the Defendant and from the operator of the Backhenrystreet website, Mr Paul Crashley. The evidence of the operator of the Fansonline website, Mr Jeremy Lacey, was accepted as read from his witness statement, Mr Lacey being unavailable to attend the hearing.

The fansonline posting

[4]The Claimant claims damages for libel, including aggravated damages, and injunctive relief arising out of a posting made by the Defendant upon a website entitled ‘Fansonline.co.uk’ in which the Defendant alleged the Claimant was a struck off solicitor.[5]Summary judgment has been entered only in respect the Fansonline publication.[6]The publication complained of is pleaded in the Particulars of Claim as follows: ‘2. On or about the 8th of July the Defendant published on an internet website known as Fansonline at URL http://www.fansonline.net in the thread entitled ‘Phase Two…who’s involved’ under the username ‘the Stockport one’ at 07.59 a posting at http://www.fansonline.net/blackpool/mb/virw.php?id+22036796, a copy of which appears at Annex A attached hereto. 3. The said posting included the words: “The well known struck off solicitor Graham Woodward”[7]At paragraph 6 it is pleaded that the posting referred to and was understood to refer to the Claimant in that it referred to him by name.[8]The meaning complained of is pleaded as follows:
‘7. The words complained of in each posting in their natural and ordinary meaning and inferential meaning meant and were understood to mean that Mr Graham Woodward is a struck off solicitor that is to say that the Solicitors Regulation Authority the independent regulatory body of the Law Society of England and Wales has struck Mr Woodward off the roll of practising solicitors and has done so for some misconduct on his part and further meant and were understood to mean that Mr Woodward practises as a solicitor when he is not entitled to because of his being struck off’
[9]The Defendant has never served a formal defence of justification. It is not now disputed by the Defendant that the words complained were untrue. No denial has ever been served of paragraph 9 of the particulars of claim which pleads:
‘The said statement is false in that Mr Graham Woodward has never been struck off and remains a practising solicitor in good standing’

The ‘backhenrystreet’ posting

[10]The Claimant’s pleadings complained also of a further posting which was in form word for word the same as that published on the Fansonline website. This is alleged to have posted on or about the same day, the 8th of July 2015, on another website, namely ‘www.backhenrystreet.co.uk’. Paragraph 4 of the Particulars of Claim averred that this also had been published by the Defendant ‘in the thread entitled ‘Phase II The Stockport One’ under the user name FP Charade at 07.49’.[11]The Defendant has always denied that he made this particular posting. Mr Shannon conceded that the pleaded timing (a time before the Fansonline posting) was pleaded in error. He did not seek to dispute that which the Defendant, said both in his defence at paragraph 19 (‘I do not deny making the post under’ The Stockport One’ but I have no idea regarding the posting timed at 07.49 by ‘FP Charade’ 10 minutes before my post that has caused offence. I have never posted under FP Charade and do not know who posts under this username’), and in his witness statement of the 30th of March 2016 atparagraph 8 (‘…the latter post not having been made by me but rather by another who copied my post across from Fansonline’).[12]In the circumstances the Claimant did not before me seek to litigate the Defendant’s liability for this second posting. Mr Shannon chose rather to seek to recover as part of the damages flowing from the original Fansonline publication, the further injury alleged to have been suffered by the Claimant by reason of its repetition. It is accepted that for such a recovery to be allowed, the damage suffered by the repetition must not be too remote, meaning that such repetition must be a reasonably foreseeable consequence of the original publication.[13]The Defendant has admitted he composed and posted the words appearing on the fansonline posting. In these circumstances the likelihood must be, and I so find, that since the publication on the backhenrystreet website is word for word the same (save for its heading and username), this was a posting made subsequently on or about the 8th of July 2015. I am satisfied that in the circumstances the backhenrystreet publication was a reasonably foreseeable repetition of the Defendant’s original publication. I agree with Mr Shannon that it is in the nature of defamatory statements that they are often repeated and passed on when they first appear on an internet website.[14]Accordingly my assessment of damages for the fansonline publication will reflect my assessment of the totality of the injury suffered by the Claimant to his reputation and his feelings, as a result not only of the original publication but also of its repetition on the backhenrystreet site.

Context

[15]The context in which the words complained of were published as follows. The words appeared in the course of a posting which was in these terms. The highlighting of the reference to the Claimant is the highlighting of this Court:
‘After legal advice last night as to the seriousness of the evidence we have gathered, I will give you all the small bit of information I can. Phase two will involve three people within the club and surrounding companies. Our esteemed currently banned chairman Karl Oyston. The well known struck off solicitor Graham Woodward. All three of these in my opinion will have serious allegations to answer for. They do have accomplices we now think and these are also being checked out and maybe they will also come into the picture. In my view and those looking at the new evidence we have acquired, leave our chairman with no option but to resign if found guilty. As the head of a company you have certain responsibilities and I am sure that no one can look at him in a great light when all this breaks. Onwards with the case and further evidence gathering. Hopefully know more in a couple of weeks. Cheers SUPPORT THE STOCKPORT ONE’

The pleaded claim: extent of publication

[16]As to the extent of publication, paragraph 10 of the Particulars of Claim pleads that both websites could be accessed by any user of the World Wide Web and it was to be inferred that a substantial number of users had in fact accessed them and read the words complained of, given the widespread interest in Blackpool Football Club. The Claimant further relied upon the fact that many other people had made postings within the same threads or elsewhere upon the two websites. Reliance was placed upon the number of ‘hits’ upon the websites as demonstrating that they and their various contents were ‘widely read’.[17]The Defendant in his Defence, and then in his witness statement, averred that any publication was very limited both in reach and in the time it remained accessible on the internet. Paragraph 4 of the Defence pleads: ‘The message board is extremely quiet close season and based upon the relatively short period the posting was live, I estimate no more than 50 people will have read the post’.[18]Paragraph 8 of his witness statement states that which is he described as ‘the erroneous posting’ was removed ‘very quickly’ by both forums and was unlikely to have been seen by ‘anyone other than a few Blackpool fans’

The pleaded damage

[19]Paragraph 11 of the Particulars of Claim, pleads that the words complained of, have caused or were likely to cause the Claimant serious harm to his personal and professional reputation and that he has suffered considerable hurt, distress and embarrassment.[20]In contrast at paragraph 7 of the Defendant’s witness statement this appears:
‘What I don’t accept is that Mr Woodward has suffered any reputational loss or loss of earnings, nor that my erroneous references has had any impact on his professional standing. Mr Woodward isn’t in private practice and therefore doesn’t have any client base of his own. His employment could never have been under threat as he was then and continues to be employed by the Oyston Group of companies and I believe I am one of the last people they would ever take any notice of.’
[21]In final submissions, Mr Grice submitted that there was no evidence of any reputational harm to the Claimant or financial harm suffered by him.[22]There is in fact no pleaded claim to any loss of earnings or other financial loss. Mr Shannon moreover conceded in his final submissions that there was no established damage of any significance to the Claimant’s professional reputation within his employers, but maintained this was still a serious libel which demanded substantial damages in vindication of reputation since the words complained of had been published beyond the confines of the Claimant’s employers, and clearly suggested that Mr Woodward had been guilty of some impropriety. Mr Shannon properly reminded me that to recover damages for libel there is no requirement to show economic loss. (see further below at paragraph 28)

The claim to aggravated damages

[23]There is a pleaded claim to exemplary damages but this has not been pursued. The claim to aggravated damages is maintained. In support, the Particulars of Claim aver at paragraph 12 that the Defendant published the words:
‘knowing they were false or recklessly, not caring whether they were true or false, knowing that he had no evidence or confirmation of the truth of the words, knowing that, and deliberately intending that, the words would be injurious to the Claimant, and by his behaviour after a complaint was made, in particular his failure to retract the words and apologise’

The entry of summary judgment

[24]By order of District Judge Moss dated the 5th of December 2015, sealed on the 31st of December 2015, summary judgement was entered against the Defendant on the claim in respect of the publication on the Fansonline website.

Recital as to retraction and apology

[25]The recital to this Order included the following:
‘And Upon it being recorded that the Defendant has indicated to the court that he is willing to apologise for the publication on Fansonline.net and for a retraction and apology in a form of words to be agreed between the parties to be subject of a statement to be read in open court’
.

The Apology ultimately made

[26]No form of words was ever agreed between the parties. There was no dispute as between the parties as to the words as such. Rather the Defendant says he was waiting upon a draft form of words to be submitted on behalf of the Claimant which never came, although he conceded he did not send any proposals of his own to the Claimant.[27]A form of apology was eventually published by the Defendant on his own initiative on the Fansonline website on the 19th of June 2016 which apology he repeated in open court at the outset of his evidence. The apology was in these terms: 16 June 2016 Apology to Graham Woodward28. In the month of July 2015 I made a statement on Fansonline.net/Blackpool calling Mr Graham Woodward a ‘Struck Off Solicitor’29. This I nowknow to be untrue.30. I apologise to Mr Woodward for any bad feelings caused by my statement. The statement was not made with any malice and I did not intend to cause any distress to Mr Woodward.31. I certainly will not be repeating these words and I hope this brings an end to the matter and both parties can be clear to enjoy their lives from this day on.32. After trying to arrange a meeting with the representatives of Mr Woodward, these have not come to fruition. I have always wished to make an apology and I have waited several months for the representatives of Mr Woodward to come up with suitable wording but again this has not been attained by myself.33. Can I personally say a sincere thank you to Stephen Sharpe, Les Goulding and Owen Oyston who have all tried unsuccessfully to bring this case to a close’

Apology to Graham Woodward

[28]The purpose of damages in libel is both to vindicate the Claimant’s reputation and to compensate for distress and loss flowing from the libel (Clerk and Lindsell on Torts 21st edition at para.22-219 citing John v. MGN Ltd [1997] QB 586). However no proof of actual damage is required and damages are at large.[29]As regards ‘aggravated damages’, (see Gatley on Libel and Slander (12th edition at para. 9.18 onwards) it is well established that the injury to the Claimant’s feelings and hence his compensatory damages may be increased both by(i) the conduct of the Defendant and his state of mind in the making of defamatory statements themselves, in particular if he was motivated by a hostile animus or was reckless as to whether the statements he was making were true or not, and(ii) his conduct in the proceedings themselves. The Court can have regard to the matters raised in his Defence and any evidence the Defendant has served and the length of time it took the Defendant to retract his libellous assertions, and the sufficiency of any apology which has been tendered.[30]By way of mitigation of damages (as to which see Gatley at 33.29 and onwards) although the Defendant can seek by evidence to establish the general bad reputation of the Claimant relevant to the libel (which this Defendant has not sought to do), what he is not entitled to do for this purpose is to call evidence seeking to prove particular instances of misconduct on the part of the Claimant. (Gatley 33.32). As will be seen, the Defendant in this case did in his pleaded defence and his evidence before me make allegations of impropriety on the part of the Claimant while accepting the Claimant was not ‘struck off’. None of this can as a matter of principle go to the mitigation of damages but this may go to the aggravation of damages. The Defendant in cross examination, put some of his allegations to the Claimant, in particular that Mr Woodward had allowed his signature to be forged on the claim forms and statements of case in other proceedings, and further that he was not bringing the present proceedings as a private individual as he had purported to do, but was being used as a front by the Oysten family (evidenced it was said in part by the use of Mr Rawlinson, employed within the Oysten Group, to send the complaints to the websites) to pursue Mr Grice vindictively. Mr Shannon properly reminded me of established principle that just as a Defendant cannot, to mitigate damages, prove in evidence in chief specific instances of misconduct, as distinguished from general reputation, so this purpose cannot be achieved by cross examination to such specific instances (Gatley 33.39). However, any attempt to give evidence of such facts in chief or to elicit them in cross examination, is a fact which can be taken into account as ground aggravating the damages.[31]The Defendant is entitled to rely on his Apology in mitigation although the weight to be given to this factor in mitigation will necessarily depend upon the contents of the Apology, the circumstances and the forum in which it was made and when it was made. The purpose of any Apology must be to ameliorate the distress and hurt suffered by the Claimant caused by the publication of the libel, and the effectiveness for this purpose of any Apology has to be assessed by reference to the factors I have identified.[32]In considering the appropriate level of damages for defamation in this case I have reminded myself of the guidance given by the Court of Appeal in Cairns v Modi [2012] EWCA Civ 138 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. These factors were rehearsed in the above way by Langstaff J in Karl Samuel Oyston v Stephen Reed [2016] EWHC 1067 (QB) (at paragraph 30) with which I agree. As Langstaff J there further observed, the damages must not be out of proportion to those awarded for serious personal injury.[33]Mr Shannon referred me to a number of what he described as comparator cases, some reported others unreported, to suggest a band of damages into which cases of the present sort would fall even when publication has been relatively limited. The band was said to be between £20,000 and £50,000. Although I found his analysis of interest I prefer not to approach my award by reference to any of these cases which necessarily turn on their particular facts.[34]There is one particular principle on assessment of damages to which I must refer given it was part of the Defendant’s final submissions to me that he was penniless. This on the present state of the authorities is an irrelevant factor. See Gur v Avrupa Newspaper Ltd [2008] EWCA Civ 594. It is a long established principle that the court cannot take account of the Defendant’s means in assessing damages for libel.

The Court’s Findings

[35]With these principles in mind I turn to my findings in this case material to the assessment of damages. The extent and scope of publication Extent in terms of time

The extent and scope of publication

[36]I turn first to the extent of publication in terms of the length of time the postings were accessible.

Removal of the Fansonline posting

[37]On the evidence before me, the Fansonline posting was made on or about the 8th of July 2015 at about 8am. It was removed by the website operator no later than the 27th of July 2015. The period it was accessible was accordingly some three weeks.[38]I say ‘no later’ because of the evidence of Mr Jeremy Lacey which as I have explained, took the form of his witness statement dated the 30th of March 2016. That witness statement is not entirely clear as to the date of the removal. What Mr Lacey explained in his statement was that Fansonline.net Ltd had received an email on the 20th of July from a Mr Rawlinson which contained an attachment of a letter of complaint dated the 20th of July from the Claimant. That email was not opened until the next day whereupon, in accordance with the Defamation Act 2013, the operator emailed the poster about the post which was the subject of the complaint. The poster who was the Defendant did not reply within the time frame according to the Act so:
‘Fansonline.net Ltd edited the offending post to remove the complained of language, and informed the complainant of this via email, such email sent on 27th July 2015’
[39]The Claimant when giving evidence and being questioned by the Defendant accepted removal could have been the 26th of July.

The removal of the backhenrystreet posting

[40]As to when the backhenrystreet posting was removed, the evidence as to this came from its owner Mr Crashley. In short form his evidence which I accept was that the backhenrystreet posting was removed by 8.15am on the 22nd of July 2015. It follows that this post had been accessible on the site for some two weeks since its posting on or about the 8th of July 2015.[41]I should however record Mr Crashley’s evidence in a little more detail since it was for the court an insight into how it is not necessarily straightforward to access a particular ‘discussion thread’. Mr Crashley explained that the original Notice of Complaint sent to the administration email address of the site on the 20th of July, stated that a discussion thread entitled ‘Phase II The Stockport One;’ contained allegedly defamatory content authorised by a user with the handle ‘FP Charade’. The Notice contained a website address supposedly directing to the words complained of, but in fact the identified link directed to a different discussion thread entitled ‘Hello Cheesy’ where the offending words did not appear. It was only when later the same day a second notice of complaint was sent with an amended website address that the administrators were directed to the correct discussion thread. Thereafter on the 21st of July the user ‘FP Charade’ was contacted by the site and informed of the Notice of Complaint as required under the Defamation Act 2013. The Notice of Complaint had come from a Mr Jim Rawlinson using the registered domain of Denwis Limited a company with its registered address at Blackpool Football Clubs Stadium. Mr Rawlinson was kept informed of these procedures.[42]The conclusion in witness statement from Mr Crashley which he adopted in his evidence and which was not challenged, was then as follows:
‘11. At 16.46pm on the 21st of July 2015, the user “The FP Charade” responded to the Sites Administrators that the words complained of would be removed from the Site. 12. At 8.15am on 22nd July 2015, the words complained of, and as a result the entire discussion thread, were removed from the Site 13. At 12.12pm on 22nd July 2015, Mr Rawlinson was informed that the words complained of had been removed from the site.’

Extent of publication in terms of scope and reach: the likely level of readership

[43]I turn to the extent of publication in terms of its scope and reach and the likely extent of readership.[44]The two websites concerned in this case are not the equivalent of national newspapers with a wide circulation. As regards the post on Fansonline the post was on the Blackpool FC section of an internet website for football fans. This was true also of the post on the backhenrystreet website. The material section of the websites were accordingly specifically for persons of who had an interest in Blackpool Football Club. The Claimant makes the point in these circumstances that those who were likely to have read the words complained of were not just a random section of society but instead were a narrowly focussed group of persons who were followers of Blackpool Football Club and who could be expected to know of the Claimant. Further in these circumstances the Claimant asserted in his evidence that this untrue allegation as to his being a struck off solicitor, would form the basis for highly charged gossip and rumour and would be liable to spread quickly. To quote paragraph 9 of the Claimant’s witness statement of the 31st of March 2016:
‘A fans website such as these reaches and circulates information to people with a keen interest in Blackpool Football Club. This means any false statement upon such a notice board or website can quickly spread through the Blackpool community.’
[45]Based on this evidence, Mr Shannon submitted that the court should approach the question of the extent of the publication on the basis that the original number of readers of the allegations, that is the readers who accessed the particular discussion threads, are likely to represent only a small fraction of the number of persons who were eventually told of these statements.[46]The likely number of persons who would have read the offending postings on site before they were removed was in itself a matter of keen dispute before me, as anticipated in the pleadings.[47]In his skeleton argument Mr Shannon submitted that the number of persons who actually read the postings was not known with any degree but argued from the evidence of the Claimant as to the number of ‘hits’ on ‘various postings’ on the two websites (not however the postings complained of in this case) that although it could not be said that every hit was by a different person, the numbers ‘give an idea of the size of readership’. The numbers of hits displayed on the Backhenrystreet site for each thread ran, it is said, into thousands and therefore the conclusion could properly be reached that: ‘the words complained of were probably seen by thousands of people and without doubt many hundreds of people’.[48]The evidence before me on likely level of readership of the discussion threads containing the words complained of, was in fact far more circumspect than Mr Shannon submitted. The Claimant gave no evidence as to the numbers of ‘hits’ on the Fansonline site. His evidence as to the hits on backhenrystreet was not from his own knowledge, it amounted to the following taken from his 31st of March statement at paragraphs 7 and 8: ‘It can be seen that the Back Henry Street website is heavily used. There are many person who made postings upon it, there are many threads added each day. Very many of the threads are extremely long, containing very many postings which last for many days and are read by many people. I have been advised by Blackpool Football Club that as a rough rule of thumb, there seem to be for every posting made about 60 or more “hits” or “readings” of the thread. In all the circumstances, it is an indication of the volume of traffic or readership involved. I have been advised by Blackpool Football Club that the statistics for these websites are as follows All Time Highest Viewed Threads Views 1. What’s all this rivalry crap with us? 66,213 2. West Ham away kit (next season) 62,045 3. Bring Back DJ Campbell “official thread until he returns” 61,513 4. Sergei Zenjov 51,157 5. Wembley Tickets 46,695 6. Next Manager 46,032 7. Holloway to Palace/Ollie gone (merged) 44,877 8. West Ham Fans to invade Blackpool end 40,013 9. Blackpool squad ins and outs – Summer 2013 39,807 10. Announcement – Court proceedings 39,193[49]This evidence has to be set against the evidence given to the court by Mr Crashley the owner of the backhenrystreet site. His evidence, which I accept, was to the effect that one had to approach the cited statistics as to the number of hits and the inferences as to readership to be drawn therefrom, with great caution. ‘Hits’ were made up of crude counter increments every time a page on a given thread was loaded. These hits could represent the same person reloading multiple times. His evidence was that the statistic as to the West Ham thread, for example, was of hits recorded over four years and the 60,000 hits might represent only some 2,000 different persons making a hit over that four year period. Moreover Mr Crashley emphasised that there was no necessary correlation between the number of ‘hits’ and the numbers of persons who actually read the contents of a particular page on any given thread. A ‘hit’ represented a ‘visit’ to a page on the thread in question but that page was not necessarily the page where a particular posting was on.[50]When cross examined by Mr Shannon, Mr Crashley accepted the proposition that most hits on a thread on a site come in the early days and diminish with time but said it was impossible to put a percentage on this. He did not accept the suggestion that 90% of hits were made in the first 10% of the time a thread was on site. He maintained his evidence that the number of hits did not equal the number of different people making hits and nor did every hit mean that the hitter had read every post within a thread. He agreed that for backhenrystreet some threads were seen by 100s of people and some by over a thousand but qualified this agreement by saying that the very highest visited threads are probably seen by at most 2,000 people.[51]Mr Crashley was asked to give the scale of readership for the two sites. He said Backhenrystreet had about 400 persons a day accessing various different forums but it was not known how many read any particular page of any particular thread. Fansonline was part of a much bigger network with a much bigger readership but although in the context of those with an interest with Blackpool Football Club that meant there was likely to be more users of the club forum, this had to be set against the fact there would be more individual posts on different subjects which a given user might be accessing.[52]Mr Crashley’s overall point in re-examination, which again I accept, was that without access to an analytical user system there was no way of telling how many people had seen a particular page or viewed a particular post.[53]My conclusion given all this evidence, is that one can say only that it is likely that these particular posts with the words complained of, were read by at most 100s of people rather than 1000s. I have borne in mind that this was the close season aswell as the relatively short period the sites were accessible.[54]Moreover I am unable to find that the likelihood is that this untrue allegation of the Claimant being struck off, will have spread like wildfire as gossip and rumour throughout the Blackpool community. This on the evidence before me would be pure speculation. It is not without significance that the Claimant gave no evidence of being approached by members of the community who had knowledge of this accusation. As the Defendant submitted to me there was no evidence called from colleagues or others speaking to his reputational harm as a result of what had come to their attention. The high water mark of the Claimant’s evidence in this context was at paragraph 11 of his witness statement:
‘When the internet posting had been seen by members of staff, my qualifications were then put into question, which I found highly embarrassing despite the fact my practising certificate is displayed in the office’
[55]In making these findings on the extent of publication and the lack of positive evidence from third parties who had come to know of what was being said, I do not wish it to be thought that I consider the Claimant is entitled to only nominal damages for injury to reputation. As I have said, there is no requirement to prove actual damage. On any view this was a serious libel no matter how limited its circulation and the Claimant is entitled to substantial damages in vindication of his reputation. I do not accept the Defendant’s submission that the words complained of would have been treated by any reader or anyone else who became aware of them, as mere saloon talk made tongue in cheek.[56]That said however my findings on the limited extent of publication taken with the concession made that there was no established injury of significance to the Claimant’s professional reputation within his employers, will go to moderate those damages to a degree.

Factors going to aggravation of damages

[57]I turn next to consideration of the matters arising in this case relevant to the claim to aggravated damages.

The Defendant’s state of mind and motivation when publishing the words complained

[58]I turn first to my review of the evidence as to the Defendant’s state of mind and motivation in publishing the words complained of, before turning to a consideration of the Defendant’s conduct once he became aware of the complaint and in defending these proceedings.

Background

[59]The evidence on the background to the postings provides a clear insight into the Defendant’s state of mind.[60]There is undoubtedly a general background of disgruntlement amongst a certain group of dedicated Blackpool Football Club fans, with online protests aimed at members of the Oyston family, concerning the management of Blackpool Football Club since it was taken over by the Oyston group of companies owned by Owen Oyston. This has already given rise to actions in defamation brought by members of the family, against such fans, in particular by Karl Oyston, the son of Owen, and the chairman of the Club. See Karl Oyston and Others v. Ragozzino [2015] EWHC 3232 and Oyston v Reed [2016] EWHC 1067 (QB).[61]The Defendant counts himself as one of such dedicated fans upset at the way the club is being run. It became clear during the course of the hearing before me that he has had access to some of the court papers in the Ragozzino litigation and perhaps the other case, when he produced purported copies upon which he relied when suggesting in cross examination that the Claimant’s signature on his statement of case was a forgery, and when raising issues concerning the legitimacy of the costs claimed in those other cases.[62]More particularly, it is clear that in the lead up to the Defendant making the posting complained of, he felt embittered towards the Claimant who had been the solicitor acting on behalf of Samuel Oyston (the son of Karl) against whom the Defendant had not long before, brought proceedings in defamation for an online publication questioning the reasons for the Defendant’s dismissal from his employment in Blackpool. The hashtag ‘sticky fingers’ had been applied. Those proceedings were ultimately concluded by a settlement in which the Defendant accepted £20,000 in damages.[63]It would appear that in February 2015 in the course of negotiations, the Claimant on behalf of Mr Samuel Oyston, sent an email to the Defendant, and then the next day wrote to the Defendant’s then solicitors enclosing a copy of a letter written to the Defendant by his previous employers concerning a disciplinary hearing. The letter also advised the Defendant’s solicitors of other accusations said to have been made against the Defendant in the course of his previous employment. That disciplinary hearing letter it seems had been given to Samuel by his father Karl (Samuel said as much in a further letter to the Defendant’s then solicitors in the course of the settlement negotiations).[64]It was no purpose of the hearing before me to investigate, and certainly not to determine, the rights or wrongs of the tactics adopted by either party in those negotiations (Mr Shannon for example submitted that the documentation in question was always going to be discoverable in those proceedings given the subject matter of the proceedings). This was a wholly collateral matter whose resolution could have no bearings on the issues before me. It could have had have no bearing on any defence of justification for the words complained of, had one been raised. It could provide no mitigation in law to the damages claimed for this libel.[65]However this background is, as I have already indicated, relevant to this extent. It is an insight into the Defendant’s hostile state of mind towards the Claimant at the time he published the words complained of.[66]It is clear both from that which the Defendant put in his written statements in the course of these proceedings and in the evidence he gave to this court under cross examination that he has an enduring sense of grievance against the Claimant (as well as against the Oyston family) about the way those settlement negotiations were conducted. In particular he resents what he regards was the wrongful obtaining of confidential documents about himself from his employer, and which he considers were then used as a form of blackmail to coerce him into settlement. So for example at paragraph 39 of his Defence he wrote:
‘I wish the Honourable Court to be aware that I have made a formal complaint to Blackpool police against the Claimant and the Oystons. I have also had notice that my complaint will be investigated’ and at paragraphs 3 and 4 of the Defendant’s witness statement this appears: ‘3. In 2015, I successfully pursued a claim against Samuel Oyston, the grandson of Blackpool FC owner Owen Oyston and son of Blackpool FC chairman Karl Oyston. Graham Woodward is the Oyston group of Companies in house solicitor and acted on Samuel Oyston’s behalf in that action. 4. In those proceedings, data information was inappropriately obtained from my previous employer in breach of the Data Protection Act 1998. This information was disclosed to my solicitor by Graham Woodward in the defence of my claim. The abuse of the Data Protection Act is currently under investigation by the ICO and has been reported to Blackpool police’
[67]Further evidence of the way the Defendant’s mind was operating towards the Claimant at the time of the posting, was the Defendant’s reaction to the suggestion in cross examination that he had a hostile animus against the Claimant and that he preferred to make serious assertions against the Claimant so long as he did not know anything different. Mr Grice, although denying the suggestion of animus, reacted by saying ‘people in glass houses should not throw stones’ which he then explained was a reference to how he felt about the way he had been treated by the Claimant and the Oystons in those previous proceedings which had meant, he said, he could not find employment again in Blackpool. At one stage in this cross examination he spoke of being stunned when he received the email from the Claimant in February 2015 and he conceded all this was in his mind when he posted what he did.

The Defendant’s behaviour in response to the Complaint and in defending the Claim

[68]I turn to review matters relating to the Defendant’s conduct in defending these proceedings.

The pleaded defence of an abusive or vexatious court action

[69]The proceedings were commenced against the Defendant by a Claim Form and Particulars of Claim issued on the 7th of August 2015. They were sent by the Claimant who then acted in person to what he understood to be the last known address of the Defendant in Blackpool. It is clear the documents did not reach the Defendant by that means and had to be served personally upon him some days later at a local cricket club. The Defendant told me in evidence that he had not lived at that address for some time but conceded that he had been reluctant to give the Claimant or any one connected with the Oysten family, his current address because of the ongoing disputes between him and them. He also told me that he had not accessed any email which had been sent to him in July by the owner of the Fanszone website giving notice of the complaint made on behalf of the Claimant, because that email, as he later discovered, had been sent into his junk email folder. It is also clear that the letter before claim dated the 6th of August sent to the Defendant again at the long abandoned Blackpool address, did not reach him until after the claim had been issued.[70]I record these details as to how the complaint of the Claimant first came to the Defendant’s attention because it was part of the Defendant’s defence that these proceedings were some kind of vexatious litigation being issued unnecessarily, given the speed with which the offending words taken down once the complaint was received by the website operators, or alternatively that the proceedings were issued in breach and abuse of the Pre-Action Protocol.[71]The material paragraphs of the Defence are as follows: 2. I make this submission that the Pre – Action Protocol has been abused. The letter was received on the 8th of August accompanied by the writ. How could I possibly comply with a retraction (thankfully the notice board had removed it previously) I was and still remain prepared to make an apology. Protocol and adequate time was denied. In fact there was no time allowed as this was the first correspondence I received. 3. It is my contention that there ought to be no order for costs because I was not afforded adequate Pre-Action protocol in a defamation action … 10. As per the defamation act 2013 (sic) website operators have five days from the day of notification in which to do what the poster requires. I have since discovered that the email regarding the complaint in my Junk email folder. If seen, I could have identified myself and insisted the post remains. Instead, I would have instructed the removal or indeed changed its content which I may have done. The website operator gets a further 48 hours. 11. This thread was deleted within the five days and yet another defamation claim commenced. The court action is unnecessary and in the circumstances vexatious. … 20. If Graham Woodward had complied with defamation protocol I would have been able to issue an immediate apology. The post was removed within the guidance and parameters.[72]The difficulty for Mr Grice, in putting forward these contentions is however that when on any view the complaint did come to his attention, which must have been by the 11th of August 2015 at the latest, (see paragraph 29 of the defence in which the Defendant describes his fruitless searches of the SRA website that day, trying to investigate the Claimant’s status), he did not then take any steps to issue an immediate apology. Although the offending post had by that date been removed by the website owners, without any input from the Defendant, and had been so removed before proceedings were even commenced, the Defendant himself when being appraised of the claim against him, did not immediately retract what he had said and concede that his assertion that the Claimant was a ‘struck off solicitor’ was incorrect.[73]Far from it, it is clear that the Defendant persisted in his allegation until the injunction hearing of the 17th of August. It appears that it was only on the 17th of August 2015 at the hearing of the interim injunction application, that the Defendant finally did accept that the Claimant was not struck off, and then, I was told, only after having the SRA website searched in front of him on counsel’s laptop in open court, and after he had been shown the outcome of the search.[74]The Defendant was undoubtedly up until the 17th of August reluctant to accept that the Claimant was not struck off. On the evidence he gave in answer to questions from Mr Shannon, he was up to that date clearly of the frame of mind that unless he could be shown positive evidence to the contrary, he would maintain that the Claimant was struck off as this was his firm belief based on what he had been told by others. He clearly did not appreciate that it was for him to be able to produce positive evidence of the truth of what he was asserting, and to make sure of its truth before making any publication, rather than for the Claimant to disprove it. This was vividly illustrated when in conceding that until the 17th of August he was still asserting the Claimant was struck off, he answered ‘Yes, until I knew any different’. It was further illustrated in his evidence as to the difficulties he had experienced as a lay person in knowing where to look to check the position and how his search of the SRA website on the 11th of August was ‘not confirming he is regulated’.[75]It follows in my judgment whatever failing there may have been on the part of the Claimant as regards following the Pre-Action Protocol as to which I find it unnecessary to make any finding, this cannot affect my assessment of the damages to which the Claimant is entitled. It cannot go in mitigation of damages. This Defendant is not a Defendant who would have immediately retracted his libellous statement if only the contents of the proposed claim and then the claim itself, had been brought to his attention sooner. His persistence in pursuing the libel right up to the interim injunction hearing until the contrary was demonstrated to him, does however go to the aggravation of damages. The pursuance of other allegations of impropriety or slurs against the Claimant in the course of the litigation[76]Although the Defendant did not in evidence in chief pursue everything which was in his pleaded Defence, this court when considering the claim for aggravated damages, cannot ignore the breadth of these express or implied allegations of impropriety and dishonesty against the Claimant which were wholly irrelevant to any defence in law to the claim for libel. I have already referred to two particular matters pursued at trial in paragraph 30 above(forgery of signatures on court papers; the Claimant being used as a front by the Oystons to pursue these proceedings as part of a vindictive campaign against the Defendant) but I am bound to record some of the others (by reference to the paragraphs in the pleaded defence) and in respect of which there is no evidence justifying any allegation of dishonesty as against the Claimant (even if this be a relevant consideration in the context of these proceedings): - para.5: ‘Graham Woodward‘s reputation is tarnished with his association with several struck off lawyers… - para.18. I urge the court to look to the Oystons probity as the last three solicitors were all struck off for dishonesty...the similar fact evidence of dishonesty from solicitors is of great concern and overwhelming.[77]The Defendant also persisted in pursuing a belief as to something being amiss with the status of the Claimant within the Oyston group of companies and with professional indemnity insurance available to the Claimant (see paras 26 and 30 of the Defence). Para 31 of the defence reads:
‘31. Now there is overwhelming evidence of fraud and subterfuge. I cannot claim damages against Graham Woodward. My contention remains that he is not an in house solicitor but self employed and employed on an ad-hoc basis and requires the relevant insurance’
[78]When asked by Mr Shannon the basis for his assertions in this paragraph, Mr Grice replied; ‘this is what I am told’.[79]Further, both in his questioning of the Claimant and in his witness statement, the Defendant suggested without any foundation other than his belief based on what he had been told, that the Claimant had been the subject if some kind of regulatory hearing and that the Law Society had placed restrictions on his work.[80]Taken together the pursuit by the Defendant of these damaging slurs against the Claimant, have to be seen as a significant aggravation of the injury to the Claimant’s feelings arising out of the admitted libel before me.

Findings on matters going to the aggravation of damages

[81]I now record my findings on the matters going to aggravation of damages.[82]By reason of the matters I have set out above when considering the background to the posting (and indeed the basis for the Claimant’s pursuit of other allegations), I am driven to two conclusions as regards the Defendant’s state of mind and motivation when publishing this libel:(i) that although he did not publish the words complained of knowing the words were untrue, he did so recklessly, that is to say not knowing whether they were true or not, and knowing he had no evidence or confirmation of whether they were true. I consider Mr Shannon was correct when in final submission he said that the Defendant revealed himself as a person who was prepared to shoot from the hip without regard for the nature of the bullets being fired or whom he was hitting, and that he portrayed a profound stubbornness in not being willing to accept what he believed to be true, might not be true after all.(ii) that in publishing the words complained of, the Defendant was motivated by a hostile animus towards the Claimant not only because of what he says had happened in the course of his own defamation proceedings and his deep sense of grievance arising therefrom, but because he views the Claimant as closely identified with the Oystons family itself.[83]Then in addition I identify the following features of the Defendant’s conduct which inevitably in themselves go to the aggravation of the damages in this case:(i) his persistence in maintaining his allegation that the Claimant was struck off, right up to the interim injunction hearing and refusing to back down and retract until he was shown positive evidence that he was wrong;(ii) the pursuit by the Defendant in the course of these proceedings of the several damaging slurs against the probity of the Claimant to which I have referred above.[84]Taken together these various matters must be a significant aggravation of the injury suffered by the Claimant arising out of the libel.

The Apology

[85]The Apology ultimately made by the Defendant on the 16th of June 2016 on the Fansonline website, and repeated in court before me, does go to mitigate the damages to a degree. But I cannot hide from my assessment of the appropriate degree of mitigation that it was not offered immediately when the Defendant was aware of the complaint being made as to his posting, or even on the occasion of the interim injunction hearing. I have regard to the Defendant’s evidence that following the terms of the Order for Summary Judgement he, as a litigant in person, was awaiting a form of words to be suggested or on behalf of the Claimant which words never came. I accept moreover that he was anxious to obtain an out of court settlement which never materialised for whatever reason. But the facts remains the apology was made late on into the proceedings and perhaps more significantly was never, before the proceedings before me began, communicated to the Claimant personally but rather was simply published online. These two facts must inevitably dilute the weight to be attributed to the Apology for the purposes of mitigation and in themselves are some additional factors going to aggravation.

Overall Conclusion on assessment of damages

[86]Having regard to all the material factors which I have identified in the course of this judgment, my conclusions are these:[87]As I have said this was a serious libel and was not one to be construed as some mere tongue in cheek saloon bar banter. However, if the publication of this libel had stood alone without any matters going to aggravation of damages, then having regard to my findings in paragraphs 54 to 55 above as to the relatively limited extent of the publication both in terms of time and scope/reach, and given the concession made as to the lack of any damage of significance to the Claimant’s professional reputation within his employers, and having regard to the Apology ultimately made such as it was, I would have awarded damages in vindication of reputation and to compensate for distress and hurt feelings, in the sum of £10,000.[88]However having regard the matters going to a significant aggravation of damages which I have identified above, I assess damages in the sum of £18,000.[89]I should add for the benefit of the Defendant that throughout the hearing and when reflecting on the evidence before giving this judgment, I have not been unsympathetic to his obvious and genuine sense of grievance in relation to his perception of the rights and wrongs of the dispute with which he has been involved connected to the Oyston family and in which the present Claimant played a role. However he must, I am afraid, understand that for the reasons set out in this judgment, these matters cannot in law as a matter of principle go to mitigate damages for this particular libel.

Injunctive relief

[90]I grant permanent injunctive relief in the terms of the draft put before me on behalf of the Claimant. This will take the place of the interim relief currently in place. Although the Defendant says he has no intention of repeating the words complained of, given my findings of the tendency of the Defendant to shoot from the hip without thinking through the implications of what he is saying, I consider the risk of repetition to be a real and continuing one.

Form of order/costs

[91]I invite the parties before the handing down of this judgment to submit in writing submissions as to the form of the Order to be made in the light of this judgment and also as to costs.

Cited in 2 later judgments