Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars), Court of Appeal - Queen's Bench Division, October 06, 2017, [2017] EWHC 2474 (QB)

Issuing Organization:Queen's Bench Division
Actores:Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars)
Resolution Date:October 06, 2017
 
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Case No: HQ17M03348

Neutral Citation Number: [2017] EWHC 2474 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/10/2017

Before:

MRS JUSTICE WHIPPLE DBE

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Between:

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Justin Rushbrooke QC & Gervase De Wilde (instructed by Wright Hassall LLP) for the Claimants

The Defendant was present in court and represented himself

Hearing date: 22 September 2017

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JudgmentMrs Justice Whipple:

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...

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