Introduction
A man who left reviews on Google and Trustpilot has escaped an attempted SLAPP-style injunction against him, after a disasterous attempt by a water cooler company and its owner to shut him down.
Water Cooler (and seemingly Coffee Machine, and office supplies provider) CF& L Limited, ISpy Group Limited, and its director Deborah Morris, had sought an injunction against Marketing Manager Kieran Fraser.
The wide-ranging and multi-pronged attack included allegations of Libel, Misuse of Private Information and Harassment.
Background
Kieran Fraser works for BJM MOT Ltd and Bespoke Garden Buildings Ltd, in marketing – all 3 were Defendants in the claim.
Somehow, BJM had entered into a contract over a water cooler with either CF& L or iSpy Group – and decided to terminate it. Despite the cost of the water cooler being just £64 per month – CF& L or iSpy Group wanted some £1,590.80 in termination fees – or BJM could pay £614 and continue with the contract.
The oppressiveness of this way of doing business and the contracts were not lost on the Judge who [at 26] in his Judgement says: “I had some difficulty reading the contract because the print is so small….”. This is an interesting comment from a Judge, where a central dispute of the Libel action possibly relates to the oppressive terms of the contract.
Seemingly, Mr Fraser had other contact with C&L and ISpy before leaving a negative review online via telephone and emails.
This resulted in a litigation-heavy approach, issuing proceedings for Libel, Harassment and Misuse of Private information….. but despite being represented by Kelly Baker (see below about her) – the claims turned into a catalogue of errors.
Failures to comply with the CPR
The learned Deputy High Court Judge Guy Vassall-Adams KC pointed out numerous errors in the Claimant’s approach.
At Paragraph 11 of his Judgement, Vassall-Adams KC points out that the Claimants did not comply with numerous part of Parts 53B of the Civil Procedure Rules:
The Particulars of Claim are undated. While they do set out, in broad terms, the factual basis of the Claimant’s claims, they are not compliant with the Civil Procedure Rules. CPR Practice Direction 53B – Media and Communication Claims, paragraph 4.2 sets out specific rules for the information that must be contained in the Particulars of Claim where a claim is brought in defamation. None of the provisions in paragraph 4.2 have been properly complied with. The precise words of the statements complained of are not set out. There is no pleading about the extent of publication. There is no pleading of serious harm to reputation as required by paragraph 4.2(3). These are companies that trade for profit, so they should have pleaded the facts and matters they rely on to show that the publication has caused, or is likely to cause, serious financial loss. Instead there is only a vague reference to serious harm having been caused to their “business interests”, without any further details. There is no pleading of any defamatory meaning. The Particulars of Claim also do not contain any statement of truth, as required by CPR 22.1(a).
Other failures to comply with the CPR included the fact the Claimants’ Particulars of Claim and Reply were undated (see Paras 11 and 13), nor contained Statements of Truth.
The Libel Claim
The intent of the Application was to seek an injunction against Mr Fraser, in particular relating to his Google and Trustpilot Reviews.
The Claimants ostensibly demanded that the online Review(s) were removed and Mr Fraser was injuncted from making further publications, pending a trial for Libel.
A key issue for the Claimants is proving their case under Section 1(2) of the Defamation Act 2013. They need to prove that the words complained of (which were not pleaded!) caused them serious financial harm. They also need to demonstrate specifically those words or that publication caused serious financial loss.
The issue of course that CF& L or ISpy Group have is that there are numerous other reviews from other businesses with the same issues. We know from the case of BW Legal vs Trustpilot that this is very difficult to prove where mutiple publications point in the same direction.
Ultimately, the Court rejected the attempt at the injunction [31]:
I am wholly unpersuaded that the test for a libel injunction is met in this case. I have to bear in mind that honest opinion is a liberal defence which protects all manner of opinion including comments which are unfair and unreasonable, providing those opinions are genuinely held. In general terms, it is much easier to defend a libel claim on the basis of honest opinion that it is to defend a claim with truth. There is a strong public interest in people being able to criticise the services of companies in consumer reviews. Put simply, there are good reasons why it is hard for companies to injunct consumers who leave bad reviews.
Ultimately, Mr Fraser will need to go trial against the Claimants on the issue if Libel. But given the Claimants’ Particulars of Claim are undated, unsigned and don’t contain the words complained of – the claim seems ripe to be struck out well ahead of trial.
But the Claimants weren’t done there!
The Harassment Claim
CF& L Limited and ISpy Group Limited weren’t defeated by the libel issue.
Next up was harassment…..
Apparently, it is harassment to exert your rights on a telephone call.
Not only this, but according to Paragraph 37 of the Judgement, Kelly Baker felt offended that her title of “Head of Legal” was being called into question….when….er…. she is not a solicitor….. In my view, Mr Fraser makes a very valid point, given the total mess Kelly Baker made of this application and its associated claims.
Naturally, this was thrown out too [42]:
…… First, one phone call is not a course of conduct on at least two occasions. Secondly, the conduct alleged on the Claimant’s case does not in my view cross the line from the regrettable and unreasonable to the oppressive and unacceptable, not even close. Raised voices in a phone call and expressions of frustration are firmly in the camp of everyday irritations, annoyances and upset. Thirdly, Mr Fraser’s words were not directed against Ms Morris, but against the company. Fourthly, I don’t believe Mr Fraser knew this was harassment or ought to have known it was harassment. Finally, the contents of the phone call are in any event disputed and I am unable to say the Claimants are likely to prevail in any test of credibility.
But the Claimants weren’t done there!
The Misuse of Private Information Claim
This was perhaps one of the most absurd bits about the claim the Claimants were bringing.
During the course of a telephone call, it was said that company owner Deborah Morris could not speak with Mr Fraser due to some medical reason.
In his reviews, Mr Fraser repeated the position given to him by the Claimants’ employees…….which was said to amount to a misuse of private information!
Unsurprisingly, this was also thrown out [46]:
In spite of this, Ms Baker sought to persuade me that an injunction should be granted on the basis that there remains a risk that Mr Fraser might publish this information again. I reject that submission. Mr Fraser did not publish this information anywhere other than in the Google review, he has not tried to publish it anywhere else since and he has amended the review to remove this information. I must assess the future risk from the perspective of the present. My assessment is that at present there is no significant risk of further publication. For this reason, I reject the application for an injunction in misuse of private information.
Opinion
This was a disastrous application – and no doubt the claims will go in the same direction. Although it’s apparent Kelly Baker has her feelings hurt when it’s pointed out she is not a solicitor, despite a grand job title as “Head of Legal”: it is clear that when making complex claims like this, you need to know what you’re doing!
The claims and attempts at injunction were obviously an attempt at a SLAPP – where the Claimants were seeking a quick legal solution to have negativity about them online removed – rather than make an informed claim, with expert legal advice. Using Kelly Baker, they were obviously trying to do it on the cheap too!
CF& L Limited, ISpy Group and Deborah Morris were clearly seeking to throw the ‘kitchen sink’ into an injunction which failed in its totality. Although their Application for Injunction failed – they will still need to pursue the 3 claims they began to trial – unless they discontinue the claims and pay Mr Fraser’s costs.
Aside from the legal issues…..one does have consider whether you’d really want to get a water cooler, coffee machine, or other office item, from a company with terrible reviews and whose small print is so small, the High Court can’t read it – and who will take you to Court for daring to expose them online!
