Brett Wilson LLP v Person(s) Unknown, Responsible for the Operation and Publication of the website w

The website www.solicitorsfromhell.co.uk was devoted to complaints about the alleged misconduct of specific solicitors and solicitors firms. That site was shut down as a result of orders issued in the case Law Society v Kordowski [2011] EWHC 3185 (QB). A new website, www.solicitorsfromhelluk.com, has been setup which appears to be a reincarnation of the original 'Solicitors from Hell' website. Using the shorthand from the judgment, this new site will be referred to as SFHUK.com.

The claim is based on two issues: first, the Claimant has been listed as one of the "Solicitors from Hell" on SFHUK.com, and second, the site contains allegations of misconduct. The owners of the domain name SFHUK.com have been discovered to be "Anonymous Speech", a proxy registrant service that seems to specialise in making its clients, the website operators, untraceable. The company has listed postal addresses in Panama and Japan, and boasts legal protection outside the reach of the US and EU. The Claimant and the Law Society obtained a Norwich Pharmaceutical order against Anonymous Speech requiring disclosure of the operator of SFHUK.com. Anonymous Speech failed to set aside or vary the order. Indeed, no response was received, and the Claimant was allowed to issue proceedings against "Person(s) Unknown, Responsible for the Operation and Publication of the website www.solicitorsfromhelluk.com". At an interlocutory hearing, the court gave permission to serve proceedings and subsequent court documents against the Defendants by emailing Anonymous Speech.

Still without a response, the Claimant made an application for two things:

default judgment pursuant to CPR 12.3(1) and 12.4(2); and
"summary disposal of the case pursuant to section 8 of the Defamation Act 1996 with the following relief: (a) damages, (b) an injunction and (c) costs."

Default Judgment

Warby J decided that it was right to hear and dispose of the application without the Defendants present as the Claimant had taken "all reasonable steps to notify" the Defendants, whom the court reasonably inferred wanted to remain unidentified and in hiding. The court proceeded on the basis of the pleaded case in the particulars of claim because they went unchallenged. Warby J confirmed the court's jurisdiction as per section 10 of the Defamation Act 2013 ("the Act") by concluding that the Defendants were 'editors' (though not 'publishers' or 'authors'). The alleged defamatory meanings listed in the pleadings were taken to be their natural and ordinary meanings, and they "plainly have a defamatory tendency," said Warby J. This was all in accordance with the approach to absent parties and unchallenged particulars of claim set out in Sloutsker v Romanova [2015] EWHC 545 (QB).

Because the Claimant was a body that trades for profit, however, the Claimant had to show "serious financial loss" to jump the "serious harm" hurdle introduced by the Act. This was the first judgment since the Act came into force to consider the requirements for serious financial loss, and Warby J revealed it to be less onerous than many anticipated. In paragraph 29, he set out what from the Particulars of Claim led him to conclude that the Claimant sufficiently made out a case of serious financial loss, including the alleged prominence of the wording complained of in Google search results for the firm and the alleged drop in the conversion of prospective clients. Notably, the Claimants did not supply any financial numbers, and even incurred criticism from Warby J for a couple of drafting deficiencies in their Particulars of Claim. Despite this, however, Warby J took a holistic approach to the allegations of damages and found the requirement of serious financial loss to be met.

Consequently, the court granted mandatory and prohibitive injunctions against the Defendants, including "the removal from the World Wide Web of specified webpages, and the removal from the SFHUK.com website of any metadata or search engine links which refer to the Claimant as 'solicitors from hell' or 'lawyers from hell'".

Sections 8 and 9 of the Defamation Act 1996

As a final matter, the court addressed the Claimant's request for summary disposal pursuant to ss 8 and 9 of the Defamation Act 1996 ("DA 1996"). Section 8 allows for the court to give judgment and grant "summary relief", which is defined in Section 9 as the following as may be appropriate:

(a) a declaration that the statement was false and defamatory of the plaintiff;

(b) an order that the defendant publish or cause to be published a suitable correction and apology;

(c) damages not exceeding £10,000 or such other amount as may be prescribed by order of the Lord Chancellor;

(d) an order restraining the defendant from publishing or further publishing the matter complained of.

The court awarded the maximum amount of £10,000, a rare outcome, drawing on evidence that included Google search statistics for the Claimant which demonstrated the general impact that the firm suffered. Warby J noted that "the award needs to serve the purpose of vindication," and £10,000 was "amply merited".

Comments

The judgment is noteworthy, and it bodes well for other victims of anonymous defamatory publications on the internet, because (1) the court granted permission to sue Person(s) Unknown, (2) the court allowed service of court documents on a third-party, (3) the court granted damages against Person(s) Unknown, (4) damages were awarded to a body trading for profit on the basis of solely non-financial evidence, and (5) the maximum amount of damages under section 8 were awarded.

Another striking aspect of this case is that defendants usually fall under the s1 DA 1996 definition of 'publisher', but here the Defendants were editors but not publisher or authors. If the Defendants are considered editors, then we might wonder if all operators of non-commercial websites where users post statements mean these operators are editors of every statement posted? To call the operator of a website an editor, it seems the court needs to consider facts on a case-by-case basis. Here, there is no discussion of the extent of the editorial control over comments posted on SFHUK.com so judicial interpretation of this issue has not been elucidated further. Finally, we note that section 8 DA 1996 is rarely invoked because of the limit on the damages amount of £10,000, and the availability of summary judgment under CPR 24. This case serves as a reminder that under certain circumstances, those seeking a resolution in a defamation claim, should consider section 8 if they are willing to sacrifice larger pecuniary damages for the sake of a swift legal resolution. Realistically, it does not look like the judgment will ever be enforced, but the Claimants can publicise (and have publicised) their victory. That publication, along with the judgment and ensuing commentary, will help clutter the negative, defamatory Google search results with the positive results about the judgment. The Claimant could also contact Google and notify them directly of the judgment so that Google might filter search results accordingly.