Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars) [2017] EWHC 2474 (QB)

Case No HQ17M03348[2017] EWHC 2474 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 06/10/2017
Before
MRS JUSTICE WHIPPLE DBE
Between
(1) AL-KO KOBER LIMITEDClaimants(2) MR PAUL JONESClaimantBALVINDER SAMBHI T/AS TORQUEBARSDefendant
Justin Rushbrooke QC & Gervase De Wilde (instructed by Wright Hassall LLP) for ClaimantsThe Defendant was present in court and represented himselfHearing Hearing date: 22 September 2017
Judgment

Introduction

[1]This is an application for(1) an interim injunction in malicious falsehood in favour of the First Claimant, and(2) an order in favour of the Second Claimant pursuant to section 10(4) of the Data Protection Act 1988 (“DPA”) requiring the Defendant to cease processing the Second Claimant’s personal data. The application was issued on 18 September 2017. It was supported by a witness statement of Paul Jones, the Second Claimant, dated 15 September 2017. Mr Jones is the Marketing Manager of the First Claimant (“the Company”). The Company is the UK based part of the business of Al-Ko VT which is a leading brand in the towing and trailer industry. Two particular products, the AKS1300 and the AKS3004, form part of the Company’s stabiliser range for use when towing caravans. The Company also manufactures and sells an automatic emergency braking system designed to apply a caravan’s brakes autonomously when necessary. It is the AKS stabiliser products which are relevant to this application.[2]The Defendant Mr Sambhi was present at the hearing and represented himself. He has developed a product which he refers to as “the Torquebar”. He told me that that product is still in the course of development and is not yet on sale to the public. He also said that he stopped work on the Torquebar when he received the Claimants’ letter before action in June 2017, in order to concentrate on this litigation.[3]Mr Sambhi has made various videos which refer to the AKS stabilisers, to the Company and to Mr Jones in various ways which are derogatory, of the stabilisers, the Company and Mr Jones (I shall explain the content of the videos in more detail below). Those videos are shown on Mr Sambhi’s Torquebars YouTube channel. Mr Sambhi makes those videos himself. There are at present 84 such videos available for viewing. Mr Sambhi indicated at the outset of the hearing before me that he does not propose to make any further videos until the current proceedings are resolved, but that he does intend to make further videos once these proceedings are concluded (unless, I would add, the Court orders him not to); and that he is not prepared, in the absence of an order of the Court, to remove the existing 84 videos from YouTube. It is for that reason that the Claimants have made this application.[4]I heard argument from both parties at an extended hearing on Friday 22 September 2017. I reserved my judgment, on Mr Sambhi giving an undertaking to the Court that he would not make any more videos or take any steps to publicise or increase the viewership of the existing videos, pending hand down of this judgment. As will become clear, this matter has been ongoing for some months and although resolution is required, it is not in the most extreme category of urgency.

Approach

[5]Section 12(3) of the Human Rights Act 1998 provides that interim relief that might affect the exercise to the freedom of expression will only be granted before a full trial if the court is satisfied that the applicant is likely to establish at trial that publication of the information in question should not be allowed.[6]In determining the outcome of this application, made before trial, I am bound by the rule in Bonnard v Perryman, which establishes that an interim injunction will not be granted restraining publication of allegedly defamatory material if the Defendant proposes to justify the publication at trial, unless it is plain that the plea of justification is bound to fail. The principle in Bonnard v Perryman applies equally to claims of malicious falsehood, see Bestobell Paints Ltd v Bigg [1975] FSR 421.[7]In other words, I could only grant the injunction sought in relation to malicious falsehood if I was satisfied that no judge or jury could reasonably conclude that the statements made by the Defendant were true (see Gatley on Libel and Slander 12th Ed, at paragraph 25.12 and Fn 59). However, in assessing whether the statements might be true, I am not bound simply to accept the Defendant’s assertion that they are true and leave the matter to trial. In Sunderland Housing Company Ltd and Anor v John Baines and Ors [2006] EWHC 2359 (QB), the Court (Eady J) held, in the context of defamation but in a passage which can readily be transposed to malicious falsehood, that the Court would expect, as the “very minimum”, that the Defendant seeking to rely on a statement as true would file a witness statement verified by a statement of truth that he believes in the truth of the statements; and that although the Defendant is not bound at that stage to submit full evidence to support his contentions, “it will not do simply to put in a blanket statement of intention or hope and leave it at that” (see [18]). I interpret this as meaning that the Defendant has, at least, to explain the basis for his assertion that the statements are true, so that the Court is in a position to assess whether the Claimants’ case on falsity might be controverted at trial.

Background

[8]In May 2017, the Company first became aware of Mr Sambhi’s videos. The viewing figures were low, and the Company took the view that the better course at that stage was to take no legal action. On 19 May 2017, Mr Jones telephoned Mr Sambhi to ask him to remove the videos from his You Tube channel, suggesting that the videos reflected badly on the Company and contained statements and suggestions which were not true. Mr Sambhi called Mr Jones back on 22 May 2017. Mr Sambhi recorded this conversation without asking Mr Jones’ permission (I shall refer to this as the “Recording”). The Company instructed Wright Hassall, solicitors, to advise. On 7 June 2017, that firm wrote a letter before action to Mr Sambhi complaining that the videos contained defamatory and untrue statements. Mr Sambhi responded on 12 June 2017 saying that in his professional opinion the AKS stabilisers did not work, that every accident shown on his videos involved an AKS stabiliser and that the videos were all true. According to Mr Jones, in the weeks and months following this exchange of correspondence, more and more videos started to appear on the Torquebars channel. By August 2017 there were videos appearing which suggested that the Company, Mr Jones and / or its products were a “killer”; meanwhile the videos were getting increased numbers of viewings, with one video (which refers to the Company conducting a “scam”) recording thousands of viewings. On 16 August 2017, Wright Hassall sent Mr Sambhi a further letter of claim, which again led to a denial of any wrongdoing in return correspondence from Mr Sambhi. Mr Sambhi then started writing letters to Mr Daniel Jennings, the Claimants’ solicitor at Wright Hassall, calling him a “baboon”, and using other forms of extreme language. Further videos were posted which were personal in tone, referring to Mr Jones and Mr Jennings in terms which were highly offensive, alongside continued criticism of the Company and its products. By this time, Mr Sambhi was also using extracts from a trade fair video which he had found on the Practical Caravan YouTube channel in which Mr Jones was shown speaking about the AKS stabilisers (I will refer to this as the “Trade Fair Footage”). The Claimants sought further legal advice and this application was issued.

Videos

[9]I was shown seven of the videos at the hearing. I accept that these provide a representative sample of the larger number. Certainly, Mr Sambhi did not suggest otherwise. Many of the videos show caravan accidents (the same sequences being used on multiple occasions throughout the videos) together with words identifying the Company and its products. I set out at Annex 1 to this judgment brief details of those seven videos to give an idea of their content. I have included the headline to each video, and the text shown on screen as part of the video (in capitals, as it appears on the videos). Some of the videos also contained sound track from the Recording and the Trade Fair Footage, but in the interests of economy those extracts have not been transcribed. Malicious Falsehood Elements[10]In order to make out its case on malicious falsehood, the Claimant must show the following (see Gatley on Libel and Slander, 12th Ed, at paragraph 21.1): 1) That the Defendant has published words which are false; 2) That those words refer to the Claimant or his property or his business; 3) That those words were published maliciously; 4) That special damage has followed as a direct and natural result of their publication.[11]There is no issue in relation to 2) or 4). As to 2): the videos plainly refer to both Claimants. As to 4): the meaning of special damage is now qualified by section 3 of the Defamation Act 1952, which provides that:
“(1) In an action for … malicious falsehood, it shall not be necessary to prove special damage – (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff ….”
To establish “calculated damage”, a party must show that the statement of which complaint is made is calculated, ie, more likely than not, to cause him pecuniary damage: see Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs, see Tesla [37]. Mr Sambhi does not suggest that the effect of his statements would not be to put off some potential customers; indeed, his avowed specific purpose in publishing these statements is to do precisely that. It is self-evidently likely that the Company has suffered or will suffer pecuniary loss by way of lost sales as a result of the publication of the videos. These elements are therefore established. (a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff ….”[12]The greater issue arises in relation to the other elements, namely 1) and 3), establishing that the words published are false and that they have been published maliciously. The First Claimant bears the burden of proving these elements.

False Statements

[13]Mr Rushbrooke QC, who appears with Mr de Wilde for the Claimants, invites me to conclude that one or other of the following meanings can be attributed to each of the videos which are the subject of this application: 1) That the AKS stabilisers are inherently unsafe products which have caused the caravan accidents depicted in the videos. 2) That the AKS stabiliser(s) is a “killer” and that the Company is knowingly risking the lives of the public by selling it; 3) That the Company is a fraudulent business and is conning or scamming its customers; 4) That Mr Jones has been exposed as having told lies about the stabiliser which the Company has then instructed solicitors to try to hush up.[14]He reminds me that the single meaning rule in defamation does not apply to malicious falsehood and that the task of a trial judge in a malicious falsehood case is to decide in relation to the reasonably available meanings of the words complained of “if a substantial number of persons would reasonably have understood the words to have such a meaning”. See Cruddas v Calvert [2013] EWCA Civ 748 at [30]. The same approach applies at the interim injunction stage.[15]I am satisfied that a substantial number of persons would reasonably have understood the statements complained of to bear one or other of these meanings. Indeed, Mr Sambhi does not suggest otherwise. When I asked him what he meant in these videos, he said he meant to say exactly what the Claimants suggest – as summarised above at [13]. He goes on to say, however, that he believes the statements, understood in those ways, to be true. That then is the real issue in this case: are these statements false?[16]Mr Sambhi has not filed a witness statement. He has not put before the Court any evidence to support his statements or his assertion that they are true. He has not done the “very minimum” which Eady J suggested is required. That is a poor start.[17]When I asked him what evidence he relied on in asserting that these statements are true, this is the answer he gave (I summarise). He said that it all came down to the lies that Mr Jones and the Company had told. Those lies, he said, related to what the Company and Mr Jones had said about the AKS stabilisers’ effectiveness in preventing “snaking”. Snaking is when a caravan starts to veer to left and right behind the towing vehicle; in serious cases, the towing vehicle can lose control resulting in an accident. Mr Sambhi pointed to some assertions made by the Company and by Mr Jones (for example in the Trade Show Footage) to the effect that the AKS stabiliser “helps to prevent snaking”; then he pointed to others to the effect that the product is “not preventative” or “does not prevent snaking” (for example, in the Recording). Mr Sambhi handed up various print outs from websites belonging to third parties (for example, other caravan retailers) which referred to the AKS stabilisers in different ways, some of them saying that the products “prevent” snaking, others that the products “help to prevent snaking”, and he argued that these references should be attributed to the Company and Mr Jones as further evidence of their dishonesty. He argued that the Company and Mr Jones have lied in suggesting that the AKS stabilisers are guaranteed to prevent snaking, and that each has acknowledged those lies by accepting that the AKS stabilisers in fact offer no such guarantee and merely help to reduce the risk of snaking. This lie, he says, is a deceit on the Company’s customers and justifies (as true) the various statements that he has made in his videos.[18]As is immediately apparent to anyone reading this judgment, none of the assertions by the Company, Mr Jones, or any third party amounts to a guarantee that snaking will not occur if the AKS stabiliser is fitted. The various descriptions of the AKS stabilisers made by the Company, Mr Jones and third parties are broadly consistent, and convey a very different message from that which Mr Sambhi urges on me. The message is that the stabilisers will help to prevent snaking. There is no guarantee against snaking offered. Thus, the whole of Mr Sambhi’s case appears to be built on a false premise. There is no lie.[19]Against that background, I come to ask myself whether any judge or jury, properly directed, could reasonably conclude that Mr Sambhi’s various statements with the meanings we are agreed on, could be true. The answer is no. As I have said, there is no lie. There is, in consequence, no reason to suggest that the Company is fraudulent, that it is scamming or conning its customers, that the Company and Mr Jones are killers, or that either is engaged in knowingly risking the lives of customers. These are the most extreme statements. There is no foundation for any of them. They are obviously untrue.[20]I have paused to consider carefully whether I should reach the same conclusion in relation to the statement that the AKS stabiliser is defective, because this is a less extreme statement, the converse of which is to determine that the AKS stabilisers are indeed safe products – which goes beyond what a court is usually willing to do at the interim stage. But here too, Mr Sambhi has provided no evidence at all to support his claim that the AKS stabiliser is defective. Further, his explanation for this statement is also based on the premise that the Company and Mr Jones have lied, a premise which I have determined to be entirely false.[21]He was critical of the fact that the Company and Mr Jones had refused his offer to test the AKS stabiliser (possibly by way of comparison with his own Torquebar product), this offer being made in the conversation between Mr Sambhi and Mr Jones which took place on 22 May 2017, but that argument does not provide any serious basis on which to conclude that the statement that the product is defective might in fact be true. Mr Jones’ refusal to participate in the offered test was understandable: it was made in the course of the second phone call between Mr Sambhi and Mr Jones, which phone call became heated at times and was set in the context of a dispute which had already emerged between Mr Sambhi and the Company; the offered test was not explained, and appears to have been of Mr Sambhi’s own devising; it was not, apparently, in any way accredited or objective in its results; and it was unclear what it was designed to show and how. This exchange does not in any way tend to show that Mr Sambhi’s statement might be true.[22]On the other side of the equation, the Company has provided the Court with evidence to demonstrate that its AKS stabilisers are safe: the Company points to the fact that it has been manufacturing the AKS stabilisers since 1975 and that it is now a leading brand in the industry; its products have been extensively tested to ensure that they are safe, with those tests going beyond what is required for regulatory purposes alone; the products all comply with the relevant EU wide regulations, having “type approval” administered by the German authorities (see Mr Jones’ witness statement at paragraphs 6, 7, 44-49).[23]In the end, Mr Sambhi’s statement that the AKS stabiliser is defective or unsafe is groundless. There is an overwhelming case to contrary effect and to demonstrate that the AKS stabilisers are safe.[24]On the evidence before me, there is no possible basis on which any judge or jury could conclude otherwise.[25]I therefore conclude that all the statements made in the videos are untrue.

Malice

[26]Mr Sambhi says that he believes these statements to be true. A person can, clearly, be wrong without being in any way malicious. For the First Claimant to make out its case in malicious falsehood, they would have to persuade a court that Mr Sambhi is actuated by some improper motive in publishing these false statements.[27]Mr Rushbrooke laid particular emphasis on a passage from Greers Ltd v Pearman and Corder Ltd (1922) 39 RPC 406 at [417], per Scrutton LJ: “Honest belief in an unfounded claim is not malice. But the nature of the unfounded claim may be evidence that there was not an honest belief in it. It may be so unfounded that the particular fact that is put forward may be evidence that it is not honestly believed” (my emphasis).[28]In this case, the unfounded claims (as I have found them to be) are extreme and serious – statements that the Company and Mr Jones are killers, that they are liars, that they are fraudsters, that they are involved in scamming the public and covering up their own lies. I accept that these are wholly unfounded statements which in and of themselves, might be taken to provide evidence that Mr Sambhi does not honestly believe them to be true.[29]I also accept that there are other features of this case which might be said to point towards Mr Sambhi having improper motives in publishing this material. Mr Rushbrooke pointed in particular to the following: 1) That Mr Sambhi’s campaign against the Company plainly started as an attempt to promote his own product, the Torquebar, in the eyes of consumers. That is self-evident from some of the earlier videos where he showed pictures of caravan crashes along with text such as “AL KO = ACCIDENTS” and then switched to footage of the Torquebar with accompanying text such as “TRUST TORQUEBARS”. His motivation, at least at the outset, was clearly commercial, and for personal gain: to promote his own product. It was not engendered by any sense of public spirit. 2) He claims in one of his videos that his own product, the Torquebar, is “THE WORLD’S FIRST ONLY 100% ANTI-SNAKING TOW BAR STABILISER”. This is a ridiculous, and obviously false claim for a product which has not yet been tested for regulatory approval, and remains in its development phase. 3) When he telephoned Mr Jones on 22 May 2017, he recorded the conversation (and subsequently used the Recording, cut and edited, repeatedly in his videos). He did not ask Mr Jones for permission to do that. That was underhand. 4) Mr Sambhi has asserted on numerous occasions (including to me during the hearing, and at least once in correspondence) that all of the caravan crashes shown on the videos were caused by AKS stabilisers. That is manifestly not true. Some of the crash sequences have no footage showing any stabiliser fitted at all, let alone an AKS stabiliser. Even in those where an AKS stabiliser is visible, it is unknown why the crash occurred (it could have been for any one of a number of reasons). By juxtaposing the Company’s name with footage of these crashes, Mr Sambhi is deliberately misleading viewers into connecting the two. 5) When the Company (by its solicitors) wrote to him to ask him specifically not to use the word “killer” on his videos, he replied on 12 June 2016 explaining that killer, in this context, simply meant highly effective or superior and went on to say that “Torquebars is highly effective and superior to Al Ko Stabiliser Thus Al Ko Killer! Winner” Beater” Victor! Defeator!” [sic]. This was an absurd explanation. The use of the word “killer” in the videos, as Mr Sambhi now accepts, meant and was intended to mean that the AKS stabiliser was so unsafe as to be a risk to human life.[30]Doubtless there are other factors which could be included in the above list.[31]However, in light of my conclusion that the statements are indeed, themselves, untrue (see [25] above), there is no need for me to reach any conclusion on this issue. Whether Mr Sambhi was in the past motivated by malice is, in the end, a matter for the Company to prove if it pursues a claim for damages for past loss consequent on the videos. The position is different for the future: Mr Sambhi will now understand, from this judgment, even if he has not understood it before, that the statements he makes in the videos are false. That means that any future publication of those videos (or any other similar videos which he may make in the future) would undoubtedly be malicious, and would amount to the tort of malicious falsehood. My approach is similar to that taken by the Court of Appeal in Kaye v Robertson [1991] FSR 62, per Glidewell LJ at p 68: “As to malice I equally have no doubt from the evidence, including the transcript of the tape-recording of the "interview" with Mr. Kaye in his hospital room which we have read, that it was quite apparent to the reporter and photographer from Sunday Sport that Mr. Kaye was in no condition to give any informed consent to their interviewing or photographing him. Moreover, even if the journalists had been in any doubt about Mr. Kaye's fitness to give his consent, Mr. Robertson could not have entertained any such doubt after he read the affidavit sworn on behalf of Mr. Kaye in these proceedings. Any subsequent publication of the falsehood would therefore inevitably be malicious.” (My emphasis.)[32]I therefore leave the issue of malice undetermined for the past, on the basis that any future publication (which is all that I need be concerned with at this stage) would certainly amount to a malicious falsehood. Conclusion on

Malicious Falsehood

[33]It is quite clear that unless restrained, Mr Sambhi will continue his campaign against the Company and its employees.[34]Recognising that any order I grant will interfere with Mr Sambhi’s right of free speech, which is a serious matter, I am nonetheless persuaded that this is an appropriate case in which the Court should grant the Company protection pending trial or further order. Data Protection Act Legal Framework

Data Protection Act

[35]Section 1 of the DPA provides that personal data means “data which relate to a living individual who can be identified (a) from those data…”. Processing includes any form of use of the information or data, as well as disclosure of the information or data by transmission, dissemination or otherwise making it available. A data controller is a person who determines the purposes for which and the manner in which any personal data are or are to be processed.[36]Section 10 of the DPA provides: “(1) Subject to subsection 2 an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons –(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and(b) that damage or distress is or would be unwarranted.” (a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and[37]There are a number of exceptions to this broad rule, but it is common ground that none applies in this case. Specifically, the exceptions contained in section 32, which permit processing of journalistic, literary, or artistic material do not apply, because Mr Sambhi’s use of the material does not fall within any of those descriptors.[38]The procedure is that the data controller must, within 21 days of receiving a notice under subsection (1) (the “data subject notice”) give the individual who gave it a written notice either stating he has complied with or intends to comply with the notice, or stating his reasons for regarding the notice as unjustified and stating the extent (if any) to which he has complied or intends to comply with it. If a court is satisfied that the data controller has failed to comply with the data subject notice, then pursuant to section 10(4) the court may order that data controller to take such steps for complying with the notice “as the court thinks fit”.[39]A claimant is entitled to seek a court’s intervention to ensure that a data subject notice is complied with in circumstances where the data controller in question does not advance any reason for asserting that the data subject notice is unjustified, and where the claimant can show that he has suffered or is suffering substantial unwarranted damage or distress as a result of the processing of the personal data in question: see Mosley v Google Inc and Anor [2015] EWGC 59 (QB).

Facts

[40]By letter dated 16 August 2017, Mr Jones (acting via his solicitors) gave a data subject notice to Mr Sambhi. Under that notice, Mr Jones required Mr Sambhi to cease processing his personal data by publishing and/or continuing to publish the words and images of Mr Jones or attributed to Mr Jones in the videos.[41]Mr Sambhi responded on 15 September 2017 saying only this so far as the DPA was concerned (I transcribe precisely):
“Paul Jones PD. Paul Jones is in 2 know videos interviews with Practical TV. These are in public domain and not in private domain and therefore “Open Market”
. Paul Jones and Wright Hassall now can not say the opposite and to your own convenience when this advocates your position.” Thus, it appeared that the Defendant was resisting the data subject notice on the basis that (he said) the data in question was already in the public domain.[42]There is no public domain exception to section 10 of the DPA. Mr Sambhi’s refusal to comply with the data subject notice was therefore not justified. It follows that Mr Sambhi has failed to comply with the subject data notice and has not advanced any reason to justify his failure to do so.

Conclusion

[43]It is clear from Mr Jones’s witness statement that he is suffering substantial damage and distress as a result of the processing of his personal data by Mr Sambhi, in the various uses to which Mr Sambhi has put the Recording, the Trade Show Footage, and other images of Mr Jones. The use of his personal data extends far beyond the sort of criticism which a senior employee of a large commercial organisation might have to put up with in the ordinary course. Mr Jones is being vilified and menaced by the way in which his personal data has been used and manipulated in the videos. This is an unwarranted attack on him personally.[44]I am therefore persuaded that this is an appropriate case in which to order the Defendant to take steps to comply with the notice. Mr Rushbrooke invites me to do so by simply requiring the Defendant to cease processing any personal data in respect of which Mr Jones is the subject. He showed me Law Society v Kordowski [2011] EWHC 3185 (QB) where Tugendhat J granted a perpetual injunction following a final hearing, on such terms. I agree that the order should provide that Mr Sambhi must not process, further process or cause or permit to be processed any audio recording, video recording, still photograph or other information, including by disclosing the same to the public, amounting to Mr Jones’s personal data for the purposes of the DPA.[45]It is perhaps a footnote to this part of the Claimants’ application that Mr Sambhi is not, in any event, registered with the Information Commissioner. He should not be processing anyone’s data at all. See Sunderland Housing Company at [25].[46]I grant Mr Jones’ application for an order under section 10 DPA in the terms in which it is sought. Summary[47]This application is allowed, in both limbs: to prevent malicious falsehood, and to prevent further breaches of the DPA.

Cited in 2 later judgments