James Fish v Terry Barker [2021] EWHC 604 (QB)

[2021] EWHC 604 (QB)Case No H90MA059
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRYDate 15 th March 2021
Before
MR JUSTICE FORDHAM
Between
MR JAMES FISHClaimantMR TERRY BARKERDefendant
Tom Longstaff (instructed by Horwich Farrelly) for ClaimantThe Defendant in person for in person
Hearing Hearing date: 15.3.21Judgment as delivered in open court at the hearing
Approved JudgmentI direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic..............................THE HON. MR JUSTICE FORDHAMNote: This judgment was produced for parties, approved by the Judge, after using voice-recognition software during an ex tempore judgment in a Coronavirus remote hearing.

Introduction

[1]This is an application for an interim injunction. The injunction as sought in the application was an order that, in the period until a further hearing on 9 April 2021 – that is, a ‘return date’ in just under 4 weeks’ time – the Defendant:(a) must permanently delete statements regarding the Claimant which he posted on LinkedIn;(b) must not make contact with the Claimant or any member of the Claimant’s family, approach them or attend their residential or work addresses; and(c) must not use social media to contact, communicate with or comment about the Claimant, his business interests or his associates. As a result of developments over the weekend the Claimant is now inviting me not to make order (a) because the statements have now been deleted by the Defendant. The Claimant has also asked, this morning, for a modified order compared to the two draft orders previously supplied to the Court and to the Claimant: namely that the Court dispense with any return date and order interim relief (b) and (c) pending trial. I will return towards the end of this judgment to the question of return date.[2]The interim injunction application arises in the context of a claim issued on 10 March 2021, based on(i) malicious falsehood and(ii) harassment pursuant to the Protection from Harassment Act 1997 (“the 1997 Act”), seeking damages and a final injunction. The application for an interim injunction is solely based on harassment and the 1997 Act. Mr Longstaff submits that in those circumstances, for the purposes of this application today I should put the question of malicious falsehood to one side. I agree and will do so. The Court’s jurisdiction on this application is found in section 37(1) of the Senior Courts Act 1981, section 3(3) of the 1997 Act and CPR 25.1(1)(a). Since part of the interim injunction sought would affect the exercise of freedom of expression, and would restrain acts of publication before trial, section 12 of the Human Rights Act 1998 (“the 1998 Act”) is applicable.

Notice

[3]The Defendant has had ‘informal’ notice of this hearing (2020 White Book page 843) and has attended the hearing. That is the same position as had arisen before Saini J at the initial hearing in the case which became Davies v Carter [2020] EWHC 2674 (QB) (see paragraph 1). I am satisfied, for the purposes of section 12(2) of the 1998 Act that the Defendant was “present”, and moreover satisfied that the Claimant had “taken all practicable steps to notify” him (section 12(2)(a)). The position, on the evidence, is this. A letter before claim was served on the Defendant by being handed to him in person at his address on 26 February 2021 at 19:15. The application, first draft order, Claimant’s first witness statement and notice of today’s hearing were all posted through the letter-box of the same address at 18:04 on Wednesday 10 March 2021. The hearing bundle (including a second witness statement of the Claimant), a skeleton argument from Mr Longstaff and a bundle of authorities were emailed to the Defendant at 18:16 on Friday 12 March 2021. The Claimant accepts in the skeleton argument that a clear 3 days’ notice of the hearing was not given (CPR 23.7(1)(b)) and that the notice of this hearing is ‘informal’. I am satisfied – and I direct – that in the circumstances of the case, sufficient notice of the application was given (CPR 23.7(4)). I am satisfied that it is in the interests of justice to hear the application today, having regard to all the circumstances, the sufficient urgency, the engagement between the parties, the Defendant’s position and the overriding objective.

Mode of hearing

[4]The hearing was a remote hearing by Microsoft Teams. That mode of hearing was notified to the parties by Notice of Hearing dated 10 March 2021 served later that day on the Defendant. I am satisfied that the mode of hearing was necessary and appropriate in the context of the pandemic. I am satisfied that no party’s interests were prejudiced by the mode of hearing. A remote hearing eliminated any risk to any person from having to travel to a court room or be present in one. The open justice principle was secured. The case and its start time were published in the cause list. So was an email address usable by any member of the press or public who wished to observe this public hearing. The hearing was recorded and this ruling will be released in the public domain.

Interim injunction until a return date

[5]I have said that the Claimant today invites me to dispense with a return date and that I will return to that issue towards the end of this judgment. It is worth saying this about a return date, which is a safety net provision that I explained to the Defendant during the hearing, conscious that he appears in person. When a Court grants an interim injunction for a short period with a return date it is, as Nicklin J explained in Wan-Bissaka v Bentley [2020] EWHC 3640 (QB) at paragraph 27(iii) doing so in circumstances which will “give the Defendant a chance… to obtain legal advice and representation”, making a “decision today… based on the evidence available to the Court today”, in circumstances where:
“The Court will review the terms of the injunction and whether it should be continued” at the return date hearing in a few weeks time. Further, under the terms of the interim injunction – including the order sought by the Claimant before me today – there is this additional protection: “The Defendant will have the option of asking the Court to reconsider [the injunction], if [he] wants, at any time between now and the [return date] hearing… if [he] gives the Claimant and the Court notice that [he] wishes to apply to vary or discharge the injunction”
.

The events of 31 January 2021 and 1 February 2021

[6]I turn to the evidence in support of the application (CPR PD25A paragraphs 3.2 and 3.3). The Defendant has received that evidence, had not prior to today’s hearing indicated that he disputed it, and has indicated today that he accepts it. On Sunday 31 January 2021 and Monday 1 February 2021 the Defendant contacted the Claimant by telephone on a number of occasions and issued a number of threats, including threats to kill. He said:
“I am going to kill you” “you are getting hurt badly” “I am going to come through your front door” “you are dead” “you are going to get fucked up”
In addition to those telephone threats the Defendant sent the Claimant a text message on 31 January 2021 (a screen shot of which has been exhibited) stating:
“we will catch up very soon Jimmy, don’t u worry”
I shall come in due course to what the Defendant has said to me this morning in relation to his actions.

The events of 24 February 2021

[7]Just over 3 weeks later, on 24 February 2021 the Defendant posted a number of comments on LinkedIn (all of which have been exhibited). He did so using his business name (LV Roofing). The Claimant is a director of Cowgills, a firm of accountants based in Manchester. First, there was a comment attached to a post which the Claimant had uploaded to LinkedIn about working during annual leave. The Defendant’s comment on that post was as follows:
“Why don’t you grow some balls & come meet me u lying scumbag”
There then followed a series of comments on LinkedIn in response to other posts of the Claimant:
“Do cowgills do drug tests, mr & u was always on the marchin powder at the brass gaffs” “Keep ur cock in ur pants & u might get some more work done u scum bag” “See who’s misses u can shag there lad” “Watch him for shaggin ur miss, right dirty dog” “Watch u don’t shag all there wife’s lad, dodgey bloke you, no one should trust you” “Don’t trust this guy with ur Business, he cheats on his wife & kids with my misses & he’s meant to be a pal”
Finally, a further comment made by the Defendant was in response to a LinkedIn post of a work colleague of the Claimant’s at Cowgills. It read as follows:
“Ben Cowgil watch out for jimmy fish he tends to go for his so called mates missus, he’s a lying cheat, so watch how you do Business with him”
.

Evidence as to impact

[8]The Claimant’s evidence is that, in relation to the threats and message on 31 January 2021 and 1 February 2021: I felt extremely threatened and intimidated by these actions. Of the subsequent messages the Claimant says: In addition to being intimidated by the verbal and written threats made against me by Mr Barker, the posts on LinkedIn were visible to all and I was extremely concerned by the damage they were likely to cause to the reputation of Cowgills. The Claimant said in his first witness statement: The posts are untrue, malicious and causing me a great deal of distress from both a personal and professional perspective. A second witness statement states: I cannot emphasise enough how much distress Mr Barker’s conduct is causing me. I am unable to sleep at night, it is impacting on my mental health, forcing me to seek medical attention and it is also affecting my performance at work. I am finding it difficult to focus due to lack of sleep and I also have to try and explain the situation to clients and colleagues. Mr Barker’s posts on LinkedIn are likely to have a devastating effect on my career. I am unable to use LinkedIn at all, which is usually a valuable source of new clients, as people would see Mr Barker’s comments, and these malicious lies will inevitably result in a loss of business and income both for myself and my employer. As an insolvency practitioner, a vital part of my role is attracting new business and if I am unable to perform due to my reputation being tarnished and a loss of self esteem, my employment could be terminated. Furthermore, my professional reputation in the accountancy market would be ruined so it would be difficult to find another job. I am living in fear of what [Mr Barker] might do next, after numerous threats of violence, which in turn is adversely affecting all areas of my life, including relationships with friends and family. I feel I cannot live a normal life until the situation is addressed. I used to be a happy, confident professional and Mr Barker’s behaviour towards me has destroyed this.

Evidence regarding a non-molestation order

[9]The Claimant’s second witness statement also states as follows: Mr Barker’s behaviour is growing increasingly more aggressive and violent. His ex-girlfriend… had previously obtained a 6-month non-molestation Order against Mr Barker from April – October 2020. There is now a further non-molestation Order in place and following a breach of this Order, Mr Barker was arrested and bailed on 7 March 2021. I understand he will appear in Court in July 2021, having been charged with harassment and coercion. I have seen the original (albeit unsigned) witness statement in support of a non-molestation order. It describes “threatening messages”, a “history of violence”, acts of violence, accusations and abuse on the part of the Defendant. The Order was based on the risk of significant harm if the Defendant were not ordered immediately to stop. I have seen the original order which prohibited the Defendant from coming within 100 metres of his ex-partner’s home, using or threatening any violence towards her, sending her threatening or abusive letters, text messages or other communications and communicating with her by any means including social media.

The Defendant’s response over the weekend

[10]Having originally failed to respond to the letter before claim handed to him personally on 26 February 2021 seeking undertakings from him by 4pm on 2 March 2021, and having failed to respond to the application and supporting materials served at his address on 10 March 2021 which on the evidence he is known to have received, the Defendant finally responded on the evening of 12 March 2021, having received by email further materials including the bundle and skeleton argument for today’s hearing. There were then a series of telephone conversations between the Defendant and the Claimant’s solicitor all of which were followed up by emails setting out what had been said and inviting the Defendant to confirm that the contents reflected the discussions, which he did confirm. The essential points arising in those email exchanges, from those telephone conversations, are as follows. The Defendant accepted that what he had done was wrong. He indicated that he had had ignored the letter before claim because his “head was in the bin”, and said that some of the abuse directed at the Claimant was as a result of the Defendant “getting drunk”. The Defendant indicated that he did not intend to do anything more than that if he saw the Claimant in the street he would walk past him without saying anything. He apologised. He said he now wished to move on and that “if” the Claimant was with his ex-partner he would accept this and had “moved on”. The Defendant said he would take down the LinkedIn posts, if the Claimant arranged to “unblock” him. The Defendant said that the LinkedIn posts were “stupid and [had] been done at a time when [he was] upset”. The Defendant said he would “consent of the injunction” as he just wanted to bring it all to an end and that it had become a “nightmare” for him. He was urged to take independent legal advice as soon as possible. Later in the evening it was confirmed that the Defendant had taken all of the LinkedIn posts and comments down, and that there were no similar posts on any such other social media platform. The Defendant confirmed that he would attend the hearing this morning. He apologised again. He indicated that he had “lost [his] temper and should not have done so”, and that he “just wanted to move on” and had now got his “head right”. It was confirmed to him that those communications would be brought to the attention of the judge today. The Defendant confirmed everything and thanked the Claimant’s solicitor “for your help in the difficult situation”.

The Defendant’s position today

[11]In addressing me today, the Defendant repeated his apology and expressed regret. He told me that his actions were the result of stupidity. He said again that he would accept the court making an order. He told me: that he would do nothing of the kind again; that he had moved on; that if an order were made he would stick to it, even if it were an order for “10 years”. He confirmed that there was no business relationship or business context for any need for any communication with, or comment about, the Claimant. He told me that he considered that this matter had got out of hand and become disproportionate in coming before the Court. He made clear that while he did not oppose the Court making an order for an injunction, he did strongly oppose any order for costs.[12]In relation to a ‘return date’, the Defendant did not strongly contend that there should be one, and told me:
“whatever is easiest I would agree”
. After I explained the ‘safety net’ that a return date would constitute, he did not ask me to dispense with that. My impression was that he was very much leaving that matter to the Court. I explained to him the special approach the courts and barristers need to take to protect the interests of those who appear in courts as litigants in person.[13]There was one further theme to the Defendant’s submissions today. He portrays the Claimant as being someone who is very much “in the wrong”, a reference to what the Defendant says is the position concerning the Claimant and the Defendant’s ex-partner. Having communicated, in powerful terms, a sense in which the Defendant tells me he has been wronged, he nevertheless maintains before me that he would not need to contact the Claimant or make any further comment in any forum about the Claimant.

Section 12 of the 1998 Act

[14]Section 12 of the 1998 Act provides as follows:(1) This section applies if a court is considering whether to grant any relief which, if granted, might affect the exercise ofthe Convention right to freedom of expression.(2) If the person against whom the application for relief is made (“the respondent” ) is neither present nor represented, no such relief is to be granted unless the court is satisfied— (a) that the applicant has taken all practicable steps to notify the respondent; or (b) that there are compelling reasons why the respondent should not be notified.(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.(4) The court must have particular regard to the importance of the Convention right to freedom of expression and, where the proceedings relate to material which the respondent claims, or which appears to the court, to be journalistic, literary or artistic material (or to conduct connected with such material), to— (a) the extent to which— (i) the material has, or is about to, become available to the public; or (ii) it is, or would be, in the public interest for the material to be published; (b) any relevant privacy code.(5) In this section— “court” includes a tribunal; and “relief” includes any remedy or order (other than in criminal proceedings).

Harassment and the 1997 Act

[15]Turning to the 1997 Act, section 1(1), under the heading “Prohibition of Harassment”, reads as follows:
“A person must not pursue a course of conduct - (a) which amounts to harassment of another, and (b) which he knows or ought to know amounts to harassment of the other.”
Section 1(2) reads:
“For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other”
. Those who engage in conduct that might otherwise amount to the tort of harassment may escape liability by reliance on one of the defences provided by section 1(3), in particular that section 1(1):
“... does not apply to a course of conduct if the person who pursued it shows – (a) that it was pursued for the purpose of preventing or detecting crime ... (c) that in the particular circumstances the pursuit of the course of conduct was reasonable.”
Section 2 provides that a person who pursues a course of conduct in breach of Section 1(1) is guilty of an offence. Section 3 provides that:
“An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.”
Section 3(2) reads:
“On such a claim, damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.”
Section 7 of the 1997 Act is an interpretation section. In the material parts it reads:
“(2) References to harassing a person include alarming the person or causing the person distress. (3) A ‘course of conduct’ must involve— (a) in the case of conduct in relation to a single person (see section 1(1)), conduct on at least two occasions in relation to that person…”
Section 7(4) reads: “Conduct includes speech”.[16]As Soole J explained in Davies v Carter [2020] EWHC 2674 (QB) at paragraph 8 … conduct is not harassment unless it crosses the boundary from the regrettable to the unacceptable, to such an extent that it would sustain criminal liability. There must therefore be conduct on at least two occasions which is from an objective standpoint calculated to cause alarm or distress and be oppressive and unacceptable to such a degree. He continued: To the same effect is the summary of the tort that harassment is a persistent and deliberate course of unreasonable and oppressive conduct targeted at another person which is calculated to and does cause that person alarm, fear or distress…[17]Other other authorities were relied on in the bundle of authorities before me, and by Mr Longstaff this morning, in relation to harassment. They include Conn v Sunderland City Council [2007] EWCA Civ 1492 at paragraphs 10-12; and Wan-Bissaka at paragraph 26. The cautious way in which the Court will approach interim injunctions to restrain freedom of speech in the context of harassment and the 1997 Act is illustrated by cases like Wan-Bissaka at paragraph 25 and Merlin Entertainments Plc v Cave [2014] EWHC 3036 (QB) (White Book volume 2 page 2985) at paragraphs 42, 95-102. An example of an interim injunction being granted pending a return date is Davies v Carter (paragraphs 1 and 29), and continued thereafter pending trial is the same case (paragraphs 47-55). Another is First Global Locums Ltd v Cosias [2005] EWHC 1147 (QB) at paragraphs 29-37. A discussion of ‘additional elements’ of oppression, persistence and unpleasantness – independently of any question of truth of the content – emphasised by Mr Longstaff at the hearing today is to be found in Merlin at paragraphs 40-41. The issue of time-limit for an an injunction is discussed in First Global Locums at paragraphs 35-37. The importance of clarity within any injunction, and the need to avoid “vague” adjectives for prohibited communication and expression, were discussed in Merlin at paragraph 42, while the White Book 2020 page 815 refers to the need for “a sufficient degree of precision”. The importance of an order being tailored as appropriate to allow room for “lawful… criticism” is discussed in Davies at paragraphs 45 and 54 . The meaning of “likely” in section 12(3) of the 1998 Act is discussed in Merlin at paragraphs 45 to 48 and in LJY v Persons Unknown [2017] EWHC 3230 (QB) at paragraph 24. In LJY at paragraphs 41 to 44, Warby J explained the importance of not permitting ‘harassment’ injunctions, whose “true purpose is to prevent damage to reputation”, so as to sidestep the very high threshold for a defamation-based interim injunction (the test, effectively, being that the Claimant is ‘bound to succeed’).

Assessment

[18]I am satisfied that it is appropriate to issue an interim injunction in the present case: to include prohibition on contact and communication with the Claimant; to include approaching him or attending his home or work address; and to include comment about him, his business interests and his associates. I will return at the end of this judgment to the precise terms of the order which are sought and which I will make. I am satisfied that it is appropriate to make the order notwithstanding that part of each which involves a restraint on publication and expression. Mr Longstaff recognised – rightly, in my judgment – that, notwithstanding what the Defendant said on Friday and again today about consenting to the injunction, it was appropriate for the Court to consider against the applicable legal framework the appropriateness of the order. There is no consent order. There is no shortcut. I have had particular regard to the importance of freedom of expression, a Convention right enjoyed by the Defendant under the 1998 Act. I am satisfied that the interim injunction is necessary. I am satisfied as to those parts of the order which restrain publication prior to a trial –in particular by prohibiting social media posting – that the Claimant is likely to establish that publication should not be allowed.[19]In my judgment, the Claimant is likely to establish each of the following: that the Defendant’s course of conduct in this case is harassment; that it passes the threshold for the statutory tort of harassment; that it has crossed the boundary from the regrettable to the unacceptable, to such an extent that it would sustain criminal liability; that there has been conduct on at least two occasions which is, from an objective standpoint, calculated to cause alarm or distress and be oppressive and unacceptable to such a degree; that there has been a persistent and deliberate course of unreasonable and oppressive conduct, targeted at the Claimant which is calculated to and has caused the Claimant alarm, fear or distress; that the Defendant knew or ought to have known that this course of conduct would amount to harassment of another; that he has no defence under the statutory provisions of s.1(3) of the 1997 Act or otherwise; that the conduct is likely to and has caused the Claimant serious alarm, distress and harm; that the Defendant's conduct as against the Claimant is an abuse of the right to free expression; and that a final injunction is necessary and proportionate in the light of the clear threat of such conduct continuing. In those circumstances, the interim injunction – including those aspects affecting freedom of expression – is fully justified.[20]I have reached those conclusions by reference to the following matters in particular. The starting point is that this is a case which clearly involves a course of conduct. That course of conduct meets the statutory test. It reflects a sustained and deliberate series of actions. It includes within it the action of moving to a different ‘forum’, adopting a different mode of attack, and even including a different recipient by posting a comment on a LinkedIn post of a third party colleague of the Claimant. It also involves taking those subsequent actions after a period of 3 weeks having elapsed. That is so, notwithstanding what the Defendant told me today about the limited period of time in which he had acted. The continuation of actions within the course of conduct, with all of those new characteristics, is highly relevant to the assessment – on the evidence before the Court today – as to threat and fear of repeat and escalation, including after a period of what may have been calm reflection.[21]Very importantly in this case, in my judgment, there is the unmistakable threat of violence, together with the evidence as to impact. The nature of the statements that were made in the telephone conversations, and which give the context for the text message, on 31 January 2021 and 1 February 2021 are unmistakable. They included what, on the face of it, were threats to kill. That, moreover, was the origin – at the outset – of the course of conduct relied on. It is plain on the face of it that the threats were intended or likely to induce fear and on the evidence that is precisely what they did induce.[22]Next, on the evidence when the Defendant moved ‘forum’ after 3 weeks to post comments on LinkedIn, he adopted a deliberate and sustained line of attack. He did so in the following context: where the Claimant had and was known to have a public profile; where there were links to the Claimant’s employer; where there were clear prospects of third-party visibility; and where there were clear prospects that defensive actions which the Claimant may need to seek to take could have a ‘sterilising’ consequence for him.[23]Next when the Defendant moved to the ‘forum’ of social media and the business environment of LinkedIn, the messaging had a clear and unmistakable connection to the threats of physical violence that had been issued by the Defendant 3 weeks earlier. The very first LinkedIn comment, as I have explained, was:
“why don’t you grow some balls & come meet me u lying scumbag”
. The connotation of violent menace in that message, seen in the context of what had preceded it, is unmistakable. Also within the late in comments uploaded by the Defendant is what on the face of it appears to be a reference to drugs:
“always on the marchin powder”
. From those beginnings, the other posts – with what, in my judgment, on the face of it was their abusive nature – were deliberately likely to cause harm, constituting action which on the face of it was oppressive and unacceptable.[24]The next point is that these comments on LinkedIn arose in a context – on the face of it and as has been accepted by the Defendant - where there was no business relationship between the Claimant and Defendant. These were not comments on or arising out of any business dealings between the two. The context from which they arose was very different. On the face of it this is therefore not one of those cases in which comments arise in circumstances where there would be an appropriate basis for making reasonable comment, including criticism, about someone within a business setting. Nor is this a context where there would need to be from the Defendant contact or communication or attending, for example, at the Claimant’s workplace or home. Instead, on the face of it and on the evidence these were communications that were all about causing damage, distress, alarm and fear. They were deliberate. Viewing the course of conduct as a whole, they were serious.[25]Next there is the evidence of impact in this case, to which I referred earlier in this judgment. That is clear evidence of a high degree of harm including prospectively in relation to fear, distress and alarm absent an order from the Court. That evidence supports the need for a solution which can provide suitable protection and confidence. I am quite satisfied that this is not a ‘reputation-based’ claim for interim injunction, which seeks to ‘sidestep’ or achieve through the ‘backdoor’ what would not be obtained were framed in defamation. This is a case where, on the evidence and on the face of it, there is already significant fear, alarm and distress and there are genuine and serious concerns including as to future significant fear, alarm and distress.

Has the order become unnecessary?

[26]Next, I have needed to consider carefully whether – even if all of this is a fair and appropriate assessment at this interim stage of the material before the Court – there is now any need for an injunction, in the circumstances as at today. I have clearly in mind what the Defendant said to the Claimant’s solicitors on Friday evening and what he has said to me this morning. Mr Longstaff helpfully invited my attention, on this topic, to the First Global case at paragraphs 32 to 33. That was a case in which an order, in some respects similar to the one I will be making, had been made and was continued by the Court: see paragraph 30 of the judgment in that case. One of the points that was made in that case was that there was no need for continuation of the order because the Defendant had “not contacted any of the Claimants let alone harassed them”, a point made in support of the “contention that there is no need for the continuation of the restriction in the order”. The Court explained in that case that there were a number of features about the conduct of the defendant which justified continuation of the order continuing protection of the claimants. That included what the Court described as: the irrationality of the Defendant’s behaviour; the evidence and fluctuating mood, and of sudden, unpredictable and barely controlled rage; and the evidence of a tenancy to respond to perceived unwelcome action with recriminations.[27]In the present case and in the present circumstances Mr Longstaff has satisfied me that it is necessary to make an order today, notwithstanding what the Defendant said on Friday and this morning. The Defendant’s course of conduct in my judgment reflects what on the face of it is a propensity to act, even after a few weeks of what may possibly have been mature reflection, resuming with further attacks or escalation. That is reflective of the fact that the Defendant’s frame or state of mind can change. In fairness to the Defendant he, of course, does not resist the making of the order. What is seen in the evidence in this case on the face of it is a continued attack, through sustained action, after a break of some 3 weeks. Moreover, based on what he has accepted on Friday evening, he has acted through anger and when drunk.[28]To all of this it is relevant, in my judgment, at this point in the analysis to add the material relating to the non-molestation order. On the face of it what the evidence before the Court indicates is as follows: that an order was needed, and a new and further order has been needed; that there has been repeated conduct including a recent arrest and bail; and that all of this in a context which – at least from the Defendant’s perspective – has something (or rather someone) to do with the circumstances that have led to his actions in relation to the Claimant. The materials relating to the non-molestation order, in my judgment, strongly support the conclusion that if an order has been necessary in this case has not ceased to be necessary by reason of what happened on Friday or this morning.[29]In my judgment there is also another point. It is, in my judgment, at least relevant to ask the question of what is ‘necessary’ in a harassment case by viewing the matter from the perspective of the Claimant, in the light of the evidence as to what has been experienced by the Claimant and the impact of it. The Claimant’s perspective is another reinforcing good reason, in my judgment, why in this case it is not only appropriate but necessary that the Court should make an order today.

Proportionality and clarity

[30]I turn next to the questions of proportionality and clarity. The order sought includes a prohibition on use of any form of social media not only to “contact” or “communicate with” the Claimant or his business interests or associates but also to make any “comment about” the Claimant or his business interests or his associates. I am conscious that when the application for interim relief in this case was framed in those terms, the evidence of the Claimant asked the Court to grant an injunction compelling the Defendant to cease posting “abusive and defamatory posts”. I have already mentioned that, in the Davies case at paragraphs 45 and 54, the Court dealt with the tailoring of a prohibition. In that case that was to ensure that any “lawful criticism” that the Defendant may wish to make was not being prohibited by the order. The question arises whether in the present case the order should be more tailored than the ‘any comment’ formulation.[31]In my judgment it would not be appropriate to narrow down the ambit of the order, at least for the purposes of interim relief at this initial stage. There are three reasons in particular. The first is that this is not a case in which comments have in fact arisen out of what the Defendant says was a need to make the legitimate comment or criticism. Such cases do arise. Davies was one of them. Merlin was another. In those cases, the Court starts from the position that genuine and lawful criticism is appropriate and asks whether the Defendant has ‘crossed the line’ so that an order restraining harassment is necessary. The second reason is that as the Defendant has fairly and properly accepted, and as I have already emphasised, there is no pre-existing business relationship between him or his firm and the Claimant as an accountant or the Claimant’s firm of accountants. It is not said that the comments in this case arise from any business setting where there could be a warrant for justified comment. On the face of it, on the evidence before the Court, the comments are born solely out of a particular set of personal circumstances. That means ‘tailoring’ the prohibition on comment is not something which, in my judgment, is necessary in this case. Put another way, it means that there is no lack of proportionality in an order that restrains the harassment by prohibiting any “comment” about the Claimant, his business interests or his associated. The third point is this. Although in some cases it may be necessary, and will be achievable, that the Court should identify an appropriate adjective to serve as the ‘tailoring’ component of a carefully designed prohibition order, there are challenges in doing so. In particular, there is the problem of whether the adoption of adjectives leads the Court, and therefore the parties, into an area of inappropriate vagueness: see Merlin at paragraph 42, describing the adjective “abusive” as “troublingly vague”. Those difficulties can and, in my judgment, clearly should in the present case be avoided. What is needed is clarity as well as proportionality. In this case those two things go hand-in-hand through the ‘any comment’ design of the prohibitory order. In all the circumstances, and for those reasons, I will make the order in the terms now sought so far as the injunction is concerned.

Dispensing with a return date?

[32]I turn to the deal with the question of a return date. Mr Longstaff invited the Court today to dispense with the return date that had been built into both versions of the draft order. He recognised that a return date could serve as an important protection for a litigant in person. He also recognised that it would not be necessary to have a return date hearing, if matters were subsequently dealt with by consent. That is because continuation of an interim order is something that can be dealt with “by consent” and need not have “a contested hearing”: see the White Book 2020 page 820. Mr Longstaff submitted that in all the circumstances of this case the Court should make an order today involving no return date but with the injunction continuing through to ‘trial’. He submitted that that was the appropriate course, to promote and secure proportionality, and avoid unnecessary costs including the costs of having to liaise with a view to securing a consent order. He strongly emphasised the position adopted today by the Defendant, who had explained a candid willingness to abide by an order of the court, even if it were an order of up to 10 years. In all the circumstances, said Mr Longstaff, there is no proportionate need for a return date. He, no doubt, also had in mind – and could have added – that the order being made by the Court today would, in any event, include liberty to apply to vary or discharge it, which would be a protection should the Defendant (possibly having instructed legal representatives) wish to do so.[33]Powerful though those submissions are, I am not prepared to dispense with a return date in this case. The starting point is that the Claimant and the Court are faced with a litigant in person who has responded belatedly on Friday and has appeared today. The return date is an important safeguard in the context of interim relief, particularly so in a case involving ‘informal’ notice. It means that the court can focus on what is to happen in the short term, having to a very large extent heard from the Claimant so far as evidence and documents are concerned. There is no getting away from the fact that a draft order was provided to the Defendant which made provision for a return date. That was the order being pursued and that was the context for the conversations on Friday evening about the Defendant ‘agreeing to the injunction’. It is true to say that no strong position was taken by the Defendant this morning as to whether or not there should be a return date. But the return date serves as a protection for him. In my judgment, the instincts of the Claimant’s solicitor in Friday evening’s emails – strongly urging the Defendant to take independent legal advice – were well directed. It is, and will remain, a matter for the Defendant whether he wishes to take any further step. But I am not persuaded that it would be appropriate in all the circumstances simply to dispense with the return date Having heard the Defendant I have every confidence that he will be able to provide prompt consent ahead of a return date and that unnecessary costs relating to a hearing can be avoided. In my judgment that is the correct approach which the Court should take in the present case. The Defendant will be able to reflect in the coming days as to whether it remains his position that he wishes to consent to continuation of the order rather than place himself in peril of further hearings and costs orders. Exactly the same is true in relation to any trial and whether the Defendant wishes to defend this claim at a trial hearing. I am quite satisfied that it is appropriate to retain, for his benefit, the return date properly built in to the order that that was sought and circulated. The events of this morning do not, in my judgment, displace that need.

Costs

[34]Finally, I turn to the question of costs. Mr Longstaff submits that this Court should order that the Defendant pay the costs of the application and hearing today. That was a shift in position. The draft order sent, and indeed (so far as the court is aware) the only draft ever sent, to the Defendant by the Claimant’s solicitors expressly contained within it: The costs of this application are reserved to the judge hearing the application on the return date. That was the position notwithstanding the circumstances relating to the letter before claim and the failure to respond to it. It was in line with the commentary in the White Book at page 1422: Where an interim injunction is granted the court will normally reserve the costs of the application until the determination of the substantive issue. The shift in position came on Friday with the skeleton argument which was emailed to the Defendant and a costs schedule. Although the Defendant did not see that new draft order he did see the skeleton argument which said that costs would today be sought.[35]Mr Longstaff has emphasised two features in support of the Court today making a costs order against the Defendant. The first is that he submits that this is one of those cases “where the balance of convenience is so clear, and the outcome of the hearing of the application for the interlocutory injunction should be so claim to the parties, that the court should conclude that an order should be made against the Defendant for wasting time and money in fighting the issue (whether or not the Defendant eventually concedes)”: Picnic at Ascot v Kalus Derigs [2001] FSR 2 at paragraph 12. On that first feature Mr Longstaff relies on the strength of the features, reflected earlier in this judgment, in support of interim relief. The second feature is the Defendant’s position adopted today. That included confirmation of what was said on Friday: that the course of conduct was “wrong”; that he apologised; and that the injunction was not being opposed. It included what was said today, including the Defendant’s expressed willingness, if necessary, to accept an injunction of “10 years”.[36]I have not been persuaded by those submissions. I have sought faithfully to address the relevant legal framework applicable to a grant of interim relief at the outset of a case involving alleged harassment and section 12 of the 1998 Act. I have not determined the case. I have not determined the substantive issues in the case. I have determined that, on my assessment of the evidence currently before the Court, the Claimant is “likely” to succeed. But that is no more than the statutory test which I have to apply for any interim injunction in the context of restraining freedom of expression. I do not accept that, in principle, it follows from the application of that threshold that the Court should be taken or treated as somehow having resolved the substantive merits. The normal case described in Picnic at Ascot at paragraph 7, and in the White Book commentary at page 1422, in my judgment applies equally to applications such as the present. It has recently been endorsed as generally applicable in the case of interim injunctions: Wingfield Digby v Mountford Capital Partners (Holdings) LLP [2020] Costs LR 1759. That case emphasises that, in principle, the right order is that costs be reserved in circumstances where the Court has not resolved the substantive legal merits, absence “special factors” (see paragraph 38). In my judgment, there are no “special factors” in the present case at this stage. In Picnic at Ascot itself at paragraph 11 the Court recorded that: A Defendant who accedes to the grant of an interlocutory injunction before the hearing should not, for that reason alone, normally be the subject of a more disadvantageous order for costs than if he had fought and lost. What the Defendant said to the Court this morning was, realistically, to confirm the position stated on Friday evening, that he was not opposing the injunction. In my judgment, it would be unjust in this case to base a costs order on the position taken by the Defendant this morning. That is particularly so in circumstances where one of the points that he strongly wished to make was his opposition to a costs order. To base a costs order on what he said to the Court this morning, if that costs order would not in any event already be appropriate, would have this invidious consequence. He would have made his position worse by attending, as a litigant in person, and by virtue of various points that he acknowledged and accepted, all of this notwithstanding the strength of the key point that he wanted to make to the Court today: his resistance to costs. In my judgment, it would not have been appropriate to make a costs order if the Defendant had not attended today and it did not become appropriate to make a costs order by reason of his attendance or what he said to the Court at the hearing. I shall order costs reserved, as in the Claimant’s original draft order.

The Order

[37]I set out here at the end of this judgment the terms of the Order that I make, having discussed with Mr Longstaff and the Defendant the precise content. Leaving aside the usual penal notice, the recitals and Schedule A, the substantive content of the Order was as follows: THIS ORDER 1. This is an order for an interim injunction made pursuant to the Protection From Harassment Act 1997 and Part 25 of the Civil Procedure Rules. 2. The Judge read the witness statements referred to in Schedule A and accepted the undertakings set out in Schedule B at the end of this Order. 3. There will be a further hearing in respect of this order on 12 April 2021 (“the Return Date”), suitable for a section 9 Judge, prior to which:3.1 The Claimant shall by 4pm 22 March 2021 by email to [email address] provide a consent order for continuation of the Injunction (paragraph 4 below) pending trial3.2 The Defendant shall by 4pm 29 March 2021 by email to [email addresses] confirm whether that order is agreed INJUNCTION 4. The Defendant is forbidden (whether by himself or by instructing or encouraging or permitting any other person): 4.1. From making any contact with the Claimant or any member of his family through any means whatsoever, including for the avoidance of doubt by post, telephone, text message, email, or via social media, and from travelling within 100 metres of the Claimant or any member of his family; 4.2. From using any form of social media to contact, communicate with, or comment about the Claimant, his business interests, or his associates; 4.3. From attending any address at which the Claimant or any member of his family resides, and/or any address concerned with their employment, or travelling within 100 metres thereof. COSTS 5. The costs of this application are reserved to the judge hearing the application on the return date. VARIATION OR DISCHARGE OF THIS ORDER 6. Anyone served with or notified of this order may apply to the court at any time to vary or discharge this order (or so much of it as affects that person), but they must first inform the Claimant’s solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Claimant’s solicitors in advance. INTERPRETATION OF THIS ORDER 7. A Defendant who is ordered not to do something must not do it in any other way, must not do it through others acting on its behalf, or on instructions or with its encouragement. 8. A Defendant must also not breach this order by its directors, officers, partners, employees or agents or in any other way. PARTIES OTHER THAN THE CLAIMANT AND DEFENDANT 9. It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be imprisoned, fined or have their assets seized. SERVICE OF THE ORDER etc 10. The Claimant shall serve on the Defendant as soon as reasonably practicable the documents set out below by personal service: 10.1. This Order 10.2. The Application Notice dated 8 March 2021; 10.3. The witness statements dated 3 and 12 March 2021 referred to in Schedule A to this order; 10.4. The exhibits to the witness statements; 10.5. The Claim Form dated 8 March 2021. … SCHEDULE B Undertakings given to the Court by the Claimant(1) The Claimant shall file and serve his Particulars of Claim by 4pm on 9 April 2021.(2) If the Court later finds that this Order has caused loss to the Defendant, and decides that the Defendant should be compensated for that loss, the Claimant will comply with any Order the Court may make.(3) Anyone notified of this Order will be given a copy of it by the Claimant’s legal representatives.