Al-Ko Kober Ltd & Anor v Sambhi, Court of Appeal - Queen's Bench Division, February 02, 2018, [2018] EWHC 165 (QB)

Resolution Date:February 02, 2018
Issuing Organization:Queen's Bench Division
Actores:Al-Ko Kober Ltd & Anor v Sambhi
 
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Neutral Citation Number: [2018] EWHC 165 (QB)

Case No: HQ17M03348

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

MEDIA & COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 2 February 2018

Before :

THE HONOURABLE MR JUSTICE NICKLIN

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Between :

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Gervase de Wilde (instructed by Wright Hassall LLP) for the Claimants

The Defendant was present in court and represented himself

Hearing date: 30 January 2018

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The Honourable Mr Justice Nicklin :

  1. On 14 September 2017, the Claimants commenced these proceedings against the Defendant. The Claim Form sought remedies, including an injunction, against the Defendant for publishing various videos on his YouTube channel.

  2. The First Claimant is a UK company and part of the business Al-Ko VT which is a leading brand in the towing and trailer industry. Included within its product range are two stabilisers for use by people towing caravans; the AKS1300 and the AKS3004. The Second Claimant is the Marketing Manager of the First Claimant. The Defendant claims to have developed a product called the `Torquebar', which would be a competitor product to the stabilisers manufactured by the First Claimant.

  3. The Defendant has made various videos which refer to the AKS stabilisers and to the Claimants in various ways which are derogatory of the stabilisers and the Claimants. The videos were published on the Defendant's Torquebar YouTube channel.

    Interim Injunction Application

  4. By Application Notice dated 18 September 2017, the Claimants sought an interim injunction against the Defendant to restrain him from publishing (or continuing to publish) the videos on the grounds that their continued publication constituted malicious falsehood and/or breach of the Data Protection Act 1998 (``the Injunction Application'').

  5. The Injunction Application came before Whipple J on 22 September 2017. The Claimants were represented by Justin Rushbrooke QC (leading Mr de Wilde). The Defendant attended the hearing and represented himself. After she had heard argument, the Judge reserved judgment. Judgment was handed down on 6 October 2017 ([2017] EWHC 2474 (QB)) at Swansea Crown Court (the Judge by that stage having gone out on circuit). Granting an interim injunction, in summary, the Judge found:

    i) that the videos published by the Defendant bore meanings (1) that the AKS stabilisers are inherently unsafe products which have caused various caravan accidents that were depicted in the videos; (2) that the AKS stabiliser is a `killer' and that the First Claimant is knowingly risking the lives of the public by selling it; (3) that the First Claimant is a fraudulent business and is conning or scamming its customers; and (4) that the Second Claimant has been exposed as having told lies about the stabiliser which the First Claimant had then instructed solicitors to try to `hush up' ([13] and [15]);

    ii) that these meanings were false ([19]-[20] and [23]-[25]);

    iii) that, whatever his state of mind in relation to past publications, continued publication of these statements by the Defendant would be malicious ([31]-[32]);

    iv) that, unless restrained by interim order, the Defendant would continue to publish these false statements ([33]); and

    v) that, as the Defendant had refused to stop processing the Second Claimant's data, an interim order was justified pursuant to s.10 Data Protection Act 1998 ([44]).

  6. The judgment records ([9]) that the Judge had watched 7 of the videos about which complaint was made by the Claimants. A table summarising their contents is set out in the Annex to the Judgment.

    Injunction Order

  7. The operative terms of the injunction order granted by the Judge were as follows:

  8. This is an injunction and Order under the Data Protection Act 1998 (``the DPA 1998''), made against the Defendant on 6 October 2017 by the Judge... on the application (``the Application'') of the Claimants by Notice dated 18 September 2017, heard by the Judge on 22 September 2017. The Judge heard leading counsel for the Claimants and the Defendant in person...

    Injunction

  9. Until the trial of this claim or further Order of the Court, the Defendant must not:

    (a) whether by himself, his servants or agents or otherwise howsoever further publish or cause or permit to be published the following statements or any of them:

    (1) the failure of AL-KO's stabiliser product to work properly caused the caravan accident or accidents depicted in the accompanying footage;

    (2) AL-KO is trying to keep hidden the failure of its stabiliser product;

    (3) AL-KO's stabiliser product is liable to cause caravan accidents;

    (4) AL-KO's stabiliser product is liable to kill people who use it;

    (5) AL-KO's stabiliser is an inherently unsafe product;

    (6) AL-KO knows that its stabiliser is an inherently unsafe product;

    (7) AL-KO's and/or Paul Jones' claim that their stabiliser product is guaranteed to prevent snaking is a demonstrable lie;

    (8) AL-KO's and/or Paul Jones' claim that their stabiliser product helps to prevent snaking is a demonstrable lie;

    (9) AL-KO is conning (or scamming) its customers;

    (10) AL-KO is knowingly risking the lives of the public;

    (11) AL-KO and/or Paul Jones are putting their desire for profits above the lives of their customers;

    (12) AL-KO and Paul Jones are guilty of fraud;

    (13) AL-KO and/or Paul Jones are using solicitors to try and hush up the fact that they have been lying to the public;

    or any words and/or images or statements to substantially similar effect.

  10. As is conventional for interim non-disclosure orders, the Order provided expressly that any party could apply to the Court to vary or discharge the injunction upon giving written notice to the other party. No application to vary or discharge the Order was made and the Defendant has not sought to appeal the Order.

    Alleged breach of injunction order

  11. The Claimants contend that the Defendant has breached the terms of the Order and is therefore in contempt of court.

  12. By Application Notice dated 13 December 2017, the Claimants seek orders against the Defendant in the following terms:

    ``(1) pursuant to CPR r81.4 the Defendant is sanctioned for his contempt of court in breaching the Order dated 6 October 2017 of Mrs Justice Whipple in these proceedings (``the Order'');

    (2) pursuant to CPR r.81.8 service of the Order required by CPR r81.5 is dispensed with; and

    (3) that the Defendant do pay the Claimants' costs of the application to be summarily assessed on the indemnity basis.''

    The application is supported by the first affidavit of the Claimants' solicitor, Daniel Jennings sworn on 11 December 2017.

  13. CPR Part 81.10(3) requires that an Application Notice seeking punishment for contempt must set out the grounds upon which the application is based. In compliance with this, the Claimants attached to the Application Notice a ``Statement of Grounds upon which Committal Application is made''. The full terms of the Statement of Grounds are set out in the Appendix to this judgment. The ``Notice'' that appears before the grounds are set out is in the form required by CPR Part 81PD Annex 3.

  14. In summary, in their grounds, the Claimants contend that the Defendant has breached the Order by publishing statements prohibited by Paragraph 2(a) of the Order in two ways. First, by publishing (pseudonymously via various YouTube accounts) further videos that contained prohibited statements. Second, at the Motorhome and Caravan Show 2017, which took place on 17 October 2017 (``the Exhibition''), by handing out a leaflet to people at the Exhibition that contained prohibited statements (``the Exhibition Handout'').

    Contempt of Court: Substantive requirements

  15. In order to establish that someone is in contempt it is necessary to show:

    i) that the respondent knew of the terms of the order;

    ii) that s/he acted (or failed to act) in a manner which involved a breach of the order; and

    iii) that s/he knew of the facts which made his/her conduct a breach.

    Masri -v- Consolidated Contractors International Company SAL [2011] EWHC 1024 (Comm) [150].

    Contempt of Court: Procedural requirements

    Jurisdiction and procedural safeguards

  16. CPR Part 81.4(1)(b) provides: ``If a person... (b) disobeys a judgment or order not to do an act, then... the judgment or order may be enforced by an order for committal.'' This can include committal for breach of an interim injunction: Attorney-General -v- Punch Ltd [2003] 1 AC 1046 [32].

  17. It is for the Judge, as a matter of case management, to decide whether to determine allegations of contempt at an interim stage or to adjourn the application to a later stage, even after the trial of the action. There is a public interest in ensuring that orders are respected and that may well justify the court hearing an application before the conclusion of the case: Ablyazov -v- JSC BTA Bank [2012] 1 WLR 1988 [33], [41] and [48]. It has not been suggested that I ought to adjourn the Claimants' application and I can see no reason for doing so. The overriding object underlying the contempt jurisdiction is to secure compliance with orders of the Court: Allason -v- Random House (UK) Ltd [2002] EWHC 1030 (Ch) [35]. That will generally point towards the Court ruling on an alleged contempt sooner rather than later.

  18. The procedural requirements for committing a person for contempt of court for breaching an Order not to do a particular act are found in CPR Part 81. Historically, the Courts insisted upon scrupulous observation of any prescribed procedural step as a condition of the exercise of the contempt jurisdiction. That was because the proceedings were quasi-criminal in nature and the liberty of the subject was potentially at stake. However, as the authors of Arlidge, Eady & Smith on Contempt note (§12-38, 5th edn., 2017) (footnotes omitted):

    ``... this broad principle is still relevant...

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