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7.12.11

Judgment handed down in Solicitors from Hell class action

Mr Justice Tugendhat has handed down judgment in the claim brought by Brett Wilson LLP on behalf of the Law society, Hine solicitors and Kevin McGrath against Rick Kordowski, the operator/publisher of solicitors from Hell.  Representative proceedings were brought by the Claimants under CPR 19.6 on behalf of those listed on the website and those at serious risk of being listed on the website. Three applications were heard at a hearing before the High Court on 15 November 2011.  Firstly, an application for an interim injunction prohibiting the Defendant from publishing www.solicitorsfromhell.co.uk (the Website) or a similar/similarly named website; secondly, an application for a default judgment/permanent injunction (which superseded the first application) and thirdly, an application for the continuation of an injunction granted on 2 November 2011 preventing the Defendant from transferring data relating to the Website.  Following the hearing Tugendhat J ordered the immediate removal of the Website in its entirety and that the injunction of 2 November 2011 continue.  Further orders were made on 7 December 2012, inter alia, prohibiting the Defendant from publishing or establishing (whether by himself, his servants, his agents or otherwise) a similarly named website or a website inviting member of the public to post negative comments about individuals and/or organisations involved in the legal profession, where as a result such individuals are harassed (within the meaning of the Protection from Harassment Act 1997 (PHA)) or have their personal data unlawfully or unfairly processed in breach of the Data Protection Act (DPA).  The following is a summary of the judgment (The Law society & Ors v Kordowski [2011] EWHC 3185 (QB) (07 December 2011)) prepared by Brett Wilson LLP.  The full 70 page judgment can be found on the Bailii website.

The Website was established in 2005 and encouraged individuals to name and shame solicitors.  Contributors were required to pay a fee of between £1 and £100 (depending on the prominence of the posting).  The vast majority of the postings were anonymous.  The Defendant purported to provide a public service by exposing wrongdoing and blacklisting firms/solicitors to avoid.  The website was popular and produced prominent search engine results.  The Website was the third suggestion when the term solicitor was typed into Google.  The Claimants asserted that being included on a website purporting to list solicitors from hell was defamatory of itself.  The website caused serious damage to the reputations of the solicitors, firms and others listed, causing them loss, embarrassment, anxiety and distress.  Furthermore, by publishing and republishing such material, knowing that it would be widely disseminated to clients and others via search engines, the Defendant was harassing those listed on it.  The Claimants contented that far from providing a public service, the Defendant was doing the public a disservice by encouraging them to refer to the Website when selecting a lawyer, since he was encouraging them to use inaccurate information to choose a solicitor.  The Defendant had been sued on a number of occasions in relation to the Website (he listed 15 claims in his evidence).  He had not successfully defended any of the claims and had been made bankrupt as a result of outstanding cost orders/judgments.

At various times the Website had included an administration and monitoring facility which had been used as a tool to demand money from those it named. Listed individuals or organisations could pay the Defendant a fee to have their name removed from the Website. This had been referred to in a number of previous cases involving the Defendant and a considerable amount of evidence was put before the court to show that this practice had been widespread. Tugendhat J noted that in a previous case the Defendant had asserted that no solicitor ever paid the fee. However, there was now a document before the court headed Defence, signed by the Defendant, from a third case in which he stated ...many solicitors have willingly paid their fee in a free market. Furthermore, whilst the Defendant claimed he no longer sought such a fee, he had produced evidence himself in the current proceedings that showed that that the practice appeared to be on-going.

Brett Wilson LLP had sent the Defendant a letter of claim on 12 August 2011. This included a schedule of Complainants and schedule of Complaints setting out the grievances of some 361 individuals and organisations (largely solicitors and law firms). The letter contained a detailed critique of the website and provided a statistical analysis of the complaints. The letter also gave notice under section 10 of the DPA requiring the Defendant to cease processing data contrary to the Data Protection Principles. The Defendant failed to comply with the notice or indicate that he considered it to be unjustified.

Proceedings were issued on 11 October 2011 in libel, under the DPA and under the PHA. The claim was brought by (1) The Law society in a representative capacity on behalf of all solicitors and law firms in England and Wales and other individuals or organisations at a serious risk of being named on the Website, (2) the law firm Hine solicitors on behalf of itself and in a representative capacity for all the solicitors firms and organisations listed on the Website and (3) the solicitor Kevin McGrath on behalf of himself and in a representative capacity for (a) all solicitors and individuals listed on the Website and (b) all the solicitors in England and Wales and other individuals at serious risk of being named on the Website. The schedules of Complainants and Complaints were incorporated into the Particulars of Claim.

There being no record of Acknowledgment of service within the relevant period, on 28 October 2011 the Claimants lodged an application for default judgment. On 2 November 2011 the Defendant published a message on the Website indicating that he intended to give the website away to a third party based overseas in order to preserve free speech. The Claimants sought an urgent without notice injunction preventing the Defendant from transferring data relating to the Website (on the basis this would be in breach of the DPA and constitute a further act of harassment). An interim injunction was granted by Mr Justice Langstaff returnable to 15 November 2011. The Defendant subsequently maintained he had filed an Acknowledgment of service. For the purposes of the default judgment application this was not contested as even with the extra time afforded by an Acknowledgment of service, the Defendant had failed to file/serve a Defence within the required period. A Defence was served some five days after this period expired and two days prior to the hearing.

The Defence challenged the right of the Claimants to bring representative proceedings and sought to rely on Article 10(1) of the ECHR (freedom of expression). No reference was made to the qualifications under Article 10(2) and no attempt was made to advance any defence to the claims in libel (e.g. justification, fair comment, qualified privilege). In relation to the PHA and DPA claims, the Defendant again referred to Article 10(1) and asserted that the claims must be brought in libel. The Defendant filed a witness statement, but did not indicate that he intended to justify the truthfulness of any of the material complained about. Accordingly, the Claimants opposed any application for an extension of time to serve a Defence on the basis that the Defence filed/served failed to disclose any reasonable ground for defending the claim, so that the Defence would, if served in time, fall to be struck out under CPR Part 3.4(2)(a).

In relation to the libel claim, the Defendant made a number of admissions on meaning, although he did not accept that certain words on the website (e.g. those on the home page referring to the characteristics of a solicitor from hell) necessarily referred to every party named on the Website. The Defendant submitted that certain phrases were a marketing tool. Tugendhat J rejected this argument as hopeless and stated that he was satisfied that the words complained of were only capable of defamatory meaning and that the Defendant had no real prospect of successfully defending the claim. There was no good reason why judgment in default of defence should not be entered, or why the defendant should be allowed to defend the claim. Tugendhat J was further satisfied that the second and Third Claimants had proved the allegations against them to be false. There was no direct evidence of falsity in relation to any of the represented parties, but the presumption of falsity applied in libel. However, their position was subject to the wider issue of whether a representative action could be brought.

In relation to the PHA, the Defendant stated the Claimants were seeking to circumvent the law of libel. Tugendhat J found this assertion strange as the Defendant had made no attempt to defend the words complained of by reference to the laws of libel. However, he stated that even if such a defence had been successful it would not have precluded a claim under the PHA. Libel was directed at protecting the right to reputation; the PHA was to protect persons from being subjected to unjustifiable alarm and distress. Tugendhat J accepted the Claimants submission that the publication by the Defendant on the Website of the name of individuals - in the knowledge that such publications will inevitably come to their attention on more than one occasion and on each occasion cause them alarm and distress - constituted harassment under the PHA. It was also clear that the statutory defences set out in the PHA did not apply. Tugendhat J stated:-

¦I am satisfied that the Defendant has committed, and is threatening to continue to commit, the statutory tort of harassment, and that the victims are not only the second and Third Claimants, but all solicitors and other lawyers named or to be named on the Website. There is no need for evidence of falsity for me to reach this conclusion. Even if there were evidence that the allegations were true, the conduct of the Defendant could still not even arguably be brought within any of the defences recognised by the PHA. No individual is entitled to impose on any other person an unlimited punishment by public humiliation such as the Defendant has done, and claims the right to do. His conduct is a gross interference with the rights of the individuals he names.

In respect to the DPA, the Claimants asserted that the Defendant was in breach of the First, Fourth and sixth Data Protection Principles. The First Data Protection Principle states that data must be processed fairly and lawfully and only where specified conditions (with reference to the DPAs schedules) are met. The Fourth Data Protection Principle stipulates that data should be accurate. The sixth Data Protection Principle states that data must be processed in accordance with the DPA. It was asserted that the Defendant had been publishing inaccurate (usually seriously inaccurate) personal data and sensitive personal data in breach of the Data Protection Principles. The Claimants relied upon the schedule of Complaints, the previous litigation involving the Defendant and the Website (where he had failed in his attempts to justify defamatory allegations) and the Defendants failure to comply with the DPA s10 Notice contained within Brett Wilson LLPs letter of 12 August 2011. The Defendant had processed the personal data in a grossly unfair and unlawful way by publishing highly defamatory allegations, pursuing a course of conduct of harassment contrary to the PHA and on numerous occasions failing to remove the posting about a solicitor unless he was paid a fee. This was not permitted by law and was disreputable. None of the conditions of schedule 2 of the DPA were met. The Defendants stance was again simply that the claim under the DPA was an attempt to circumvent the law of libel. This argument was rejected for the same reason as the PHA. The purpose of the DPA was wider than that of the PHA, but included the aim of protecting persons from being subjected unfairly and unlawfully to distress. The Claimants were entitled to an order under 10(4) of the DPA. Tugendhat J stated:-

Accuracy is a requirement of the Fourth Data Protection Principle. Inaccuracy or falsity of data may be sufficient to establish a breach of the DPA, but it is not necessary. Any unlawfulness will suffice for there to be a breach of the First Data Protection Principle, including harassment and libel. That principle is not confined to acts unlawful under that particular statute.

Tugendhat J went on to consider the question of representative proceedings. It was the Claimants position that it was a waste of court time and resources and an injustice to the claimants (who are unable to recover their costs because of the Defendants financial position) for individual proceedings to be brought. This was a case where some form of collective action was called for and CPR 19 was the appropriate avenue. The Claimants represented a class of people which had a common interest and grievance in the proceedings and the relief sought was beneficial to all, and all the relevant conditions were met. Consent (from those represented) was not required under the rules. The Defendants position was that representative proceedings should not be allowed on the basis that (1) not all solicitors have an interest in the claim (2) the majority of solicitors identified in the website had not opted in and (3) that a class of person who might be represented could not be indentified until liability to each of them has been established and (4) any claim would not be equally beneficial for all of those in the represented class. Tugendhat J held that:-

In my judgment proceedings brought by the second and Third Claimants in respect of the claims for harassment and under the DPA should be continued as they have been begun. solicitors who have not been named have an interest in the injunction in so far it is quia timet. Consent to be represented is not required, as the authorities show. The class is readily identifiable once persons or firms are named on the Website. An injunction would be equally beneficial to all. The common interest arises from the fact that the claim as pleaded is made in respect of a course of conduct, which includes data processing, which is the same or similar in relation to all the Represented Parties. The common grievance arises from the facts pleaded regarding the operation of the Website. There is at least a threat to cause distress to all Represented Parties in circumstances where no defence has ever been raised by the Defendant, nor could be raised by him. The question whether that course of conduct constitutes a breach of the PHA or the DPA is common to all Represented Parties because the same course of conduct is used in respect of all of them. As already discussed, while the falsity or inaccuracy of the words (the course of conduct complained of) is not irrelevant to the claims under the PHA and the DPA, truth is not of itself a defence. so far as the First Claimant, the Law society, is concerned, since it does not sue for any of the causes of action for its own benefit (whether existing or threatened) it does not have the common interest and grievance with the Law society Represented Claimants that is required by CPR Part 19.6. But in my judgment the second and Third Claimants have the required common interest with the Law society Represented Claimants. Accordingly, pursuant to CPR Part 19.6(b) I order that the Law society Represented Claimants be continued by the second and Third Claimants in respect of the claims for harassment and under the DPA. The position in relation to libel seems to me to be different. The second and Third Claimants have been careful to claim separately for those words which they claim refer to all solicitors named in the Website, as distinct from those which refer only to themselves. To that extent that they complain of words which refer to all solicitors named in the Website (that is both words already published and words which the Defendant threatens to publish in the future) I accept that there is a common interest. However, whether publication of those words is, or will be, unlawful does not depend on the conduct of the Defendant. It depends upon whether the words are true or false, or whether they can be defended under one of the other established defences in libel. Mr Tomlinson submits that, since damage is not a necessary constituent of the cause of action in libel (damages presumed) inclusion of the name of any firm or person on the Website in the future would be prima facie unlawful. He submits that in the particular circumstances of the present case the court can proceed on the basis that if there were to be such a publication in the future, the Defendant would have no defence and so the publication would be unlawful. The Defendant has not suggested that if he continued to operate the Website, he would do so under conditions in which he would claim to be able to raise a defence known to law (other than the supposed unqualified Art 10(1) right that the courts have repeatedly rejected). so, submits Mr Tomlinson in these circumstances it would be appropriate for the Court to grant a quia timet injunction in libel as well as under the PHA and DPA. Given the history of the Defendant, I accept that seems theoretical to talk of the Defendant raising any defences under the law of libel. That is not something he has ever attempted with success. But as in Emerald it seems to me that judgment in the action for libel would have to be obtained before it could be said of any person that they would qualify as someone entitled to an injunction against the Defendant, or to any remedy other than damages. The presumption of falsity may entitle a Defendant to a judgment in default, for damages to be assessed, but to no more. I repeat the reasons set out in paras 138 and 139 above and as Lord Denning MR said in Fraser “v- Evans [1969] 1 QB 349 at 361 explaining the rule in Bonnard “v- Perryman ¦There is no wrong done if [the defamatory allegation] is true, or if it is fair comment on a matter of public interest [or he might have added, it is on an occasion of qualified privilege]. Accordingly, I would direct that in respect of the claims in libel the Claimants may not act in a representative capacity.

Tugendhat J accepted the Claimants argument that the interests of the public at large supported the need for perpetual injunctions and made the following observations:-

¦If a free market is to work, consumers must assume that suppliers are offering their goods or services in good faith, and not deliberately misleading the public. Participation in a market involves responsibilities. In the same way the right to freedom of expression guaranteed by Art 10(1) is subject to the responsibilities referred to in Art 10(2). Deliberately to introduce falsehoods into public debate is like contaminating food in the shops. Where the internet is concerned, the motive is often the same: extortion or revenge. The effect of misinformation on those searching for true information is that they are likely to be misled by finding information that is in fact false. The common law, underpinned by the Human Rights Act, guarantees many freedoms, including free markets in goods and services for the benefit of the public both as consumers and as suppliers. These freedoms can only be enjoyed if there is extensive interference with freedom of expression in the form of regulations governing what can be said by suppliers. There is a large body of law prohibiting the making of false and misleading claims by suppliers as to the supposedly good qualities of their goods and services. The responsibilities imposed on suppliers by these laws are interferences with freedom of expression which are justified under Art 10(2). Until the internet made it possible for individuals to communicate with the public at large at virtually no cost, there did not appear to be a need for similar regulations to prevent the making of false and misleading claims as to the supposedly bad qualities of the goods and services of suppliers. such false claims were made unlawful by torts such as defamation and malicious falsehood, and the economic torts. But these are not enforced on behalf of the public by public authorities. Victims are left to pursue their own civil law remedies for their own benefit. However, the public as consumers need protection not only from false claims to the supposedly good quality of goods and services, but also from false claims to the supposedly bad quality of goods and services. In extreme cases a false claim that a product is bad may cost lives, as happened in the recent case of the pharmaceutical product MMR. Discouraging people in need of legal advice from instructing good lawyers is as much against the public interest as encouraging them to instruct bad lawyers. At worst it may lead to miscarriages of justice (if clients do not take or follow advice because they do not trust their solicitors to give advice in their best interests). At the least it will lead to restrictions on the consumers freedom of choice, and to distortion of the free market in legal services. If restrictions are to be enforced on behalf of the public parliament normally does this by legislation which makes the conduct in question a criminal offence. The DPA goes some way towards this. It can protect from unfair discrimination those suppliers who trade as individuals, as solicitors happen to do, as well as employees or prospective employees. And it does create criminal offences and a mechanism for enforcement by the Information Commissioner. Where the DPA does not apply, the suppliers who have large resources may invoke the common law to protect themselves. But there is a need for someone to protect the public. The procedural remedy of representative proceedings coupled with an injunction is the best that the law can offer at present to protect the public from the unjustifiable dissemination of false information about the suppliers of goods and services. It is also the means by which the court may protect its limited resources in time and judiciary from having to deal with large numbers of claims by different claimants against the same individual on the same or similar facts. The Defendant is a public nuisance. He is in effect a vexatious litigant who is a defendant. The courts have had to devise means to protect the administration of justice from such people when they are claimants or applicants, by the means of what are now civil restraint orders under Practice Direction 3C of the CPR. That is the jurisdiction that smith LJ and sir Richard Buxton were applying by designating the Defendants applications for permission to appeal as wholly without merit. Henriques J was calling for something similar to protect the court from defendants who mischievously provoke claims which they cannot defend.

Hugh Tomlinson QC and sara Mansoori appeared for the Claimants.

The Defendant appeared in person.

A link to the full judgment (The Law society & Ors v Kordowski [2011] EWHC 3185 (QB) (07 December 2011) can be found at the Bailii website.

solicitor with conduct of the case: Iain Wilson

Any press enquiries in relation to this case should be directed to the Law society press office: 020 7320 5764


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