1006 All England Law Reports [2016] 1 All ER

a
Brett Wilson LLP
v Person(s) Unknown,
responsible for the operation
and publication of the website b
www.solicitorsfromhelluk.com
[2015] EWHC 2628 (QB)

QUEEN’S BENCH DIVISION c

WARBY J
7, 16 SEPTEMBER 2015

Judgment – Default of acknowledgment of service – Power of court to proceed in

absence of party – Anonymous defendants – Claim for damages for libel – Time for d
filing acknowledgement of service and defence by defendants expiring – Whether
defendants having proper notice of proceedings – Whether appropriate to proceed on
basis of claimant’s unchallenged pleaded case – Whether defendants’ right to freedom
of expression engaged – Human Rights Act 1998, s 12 – CPR 12.3(1), 12.4(2), 12.11(1),
23.11.
e
Libel and slander – Defamatory statement – Requirement of serious financial loss –
Solicitors firm alleging defamatory statements published on website by anonymous
defendants – Whether firm suffering ‘serious financial loss’ – Whether court having
jurisdiction to determine claim – Whether defendants ‘editors’ of statements –
Defamation Act 1996, s 1(2) – Defamation Act 2013, ss 1(1), (2), 10(1), (2).
f
Libel and slander – Summary disposal of claim – Relief – Damages – Injunction –
Claimant obtaining default judgment in absence of anonymous defendants – Whether
claimant entitled to summary relief in damages and injunctions – Defamation
Act 1996, ss 8, 9.
g
The claimant was a small firm of solicitors. The defendants operated a website
devoted to complaints about solicitors. The claimant discovered that it was
listed on the website as one of the ‘Solicitors from hell’, and a letter of
complaint by an anonymous client of the claimant appeared on the website.
The letter accused the claimant of seeking to overcharge, unjustifiably
threatening legal action and engaging in a campaign of harassment. It was h
subsequently discovered by the claimant that the website was owned by a
proxy registrant service that provided proxy services to those who did not wish
to be traced. A letter of claim was emailed to an address given on the website,
but no response was received. The claimant then obtained a Norwich Pharmacal
order against the proxy service provider requiring it to disclose identifying
information in relation to the owner/operator of the website, and provided for j
its service by email to two addresses given as contact addresses by the proxy
service provider, and to two physical addresses. No response was received.
The claimant commenced proceedings claiming damages for libel and an
injunction to restrain continued publication of the words complained of, the
claim form issued against Persons Unknown. It obtained an order to serve the
 QBD Brett Wilson v Person(s) Unknown 1007

a proceedings on the defendants at the email addresses previously given, which

proceedings were duly served. No application was made by the defendants
within the time limit to set aside or vary the order, nor did they file an
acknowledgement of service or defence by the deadline for doing so.
The claimant sought default judgment under CPR 12.3(1)a and 12.4(2)b on the
basis that the time for filing an acknowledgement of service or defence had
b expired, and neither had been filed. It applied for default judgment pursuant to
the court’s power in r 23.11c to proceed in the absence of a party. On such an
application, r 12.11(1)d prescribed that ‘judgment shall be such judgment as
appears to the court that the claimant is entitled to on his statement of case’.
The claimant also sought summary disposal of the case pursuant to ss 8e and 9f
c of the Defamation Act 1996, seeking, inter alia, damages of £10,000 and
mandatory and prohibitory injunctions. Summary relief was available under s 8
where there was ‘no defence to the claim which has a realistic prospect of
success and no other reason why the claim should be tried’ and s 9(1) defined
summary relief to include ‘damages not exceeding £10,000’. The claimant’s
pleaded case alleged, among other things, that it attracted a considerable
d amount of work from the internet, that it was inevitable that a number of
prospective clients who had read (or would read) the publication had decided
(or would decide) not to instruct it as a result, that the loss of a single
instruction could cost it tens of thousands of pounds and that a prospective
client who had previously indicated a wish to instruct the claimant had
withdrawn his instruction as a result of the publication. The claimant alleged
e that the words complained of bore defamatory meanings, including that it was
‘corrupt, fraudulent, dishonest, unethical, incompetent and oppressive’.
The following issues arose for determination. (i) Whether it was right to hear
and dispose of the application in the absence of the defendants. Consideration
was given to s 12g of the Human Rights Act 1998 which prohibited the
granting of any relief which might affect the exercise of the right to freedom of
f expression under the Convention for the Protection of Human Rights and
Fundamental Freedoms 1950 (as set out in Sch 1 to the 1998 Act), unless the
court was satisfied that the claimant had taken all practicable steps to notify the
defendants, or that there were compelling reasons why the defendants ought
not be notified. (ii) Whether the conditions for obtaining judgment in default
g of an acknowledgement of service were met. (iii) Whether the court had
jurisdiction under s 10(1)h of the Defamation Act 2013 to determine the claim.
Under that provision, the court did not have jurisdiction to determine an action
for defamation brought against a person who was not ‘the author, editor or
publisher’ of the statement complained of. The meaning of ‘author’, editor’

h a Rule 12.3, so far as material, provides: ‘(1) The claimant may obtain judgment in default of an
acknowledgment of service only if—(a) the defendant has not filed an acknowledgment of service or
a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired.’
b Rule 12.4, so far as material, provides: ‘(2) The claimant must make an application in accordance with
Part 23 if he wishes to obtain a default judgment—(a) on a claim which consists of or includes a claim
for any other remedy …’
c Rule 23.11, so far as material, provides: ‘(1) Where the applicant or any respondent fails to attend the
j hearing of an application, the court may proceed in his absence.’
d Rule 12.11, so far as material, is set out at [18], below.
e Section 8, so far as material, is set out at [35], below.
f Section 9, so far as material, is set out at [35], below.
g Section 12, so far as material, is set out at [15], below.
h Section 10, so far as material, is set out at [20], below.
1008 All England Law Reports [2016] 1 All ER

and ‘publisher’ for the purposes of s 10(1) had the same meaning as in s 1(2)i of a
the 1996 Act where ‘editor’ in sub-para (d) was defined as ‘a person having
editorial or equivalent responsibility for the content of the statement or the
decision to publish it’. (iv) Whether the words complained of were defamatory
within the meaning of s 1(1)j of the 2013 Act, which provided that a statement
was not defamatory unless its publication had caused, or was likely to cause,
serious harm to the reputation of the claimant. By s 1(2), harm to the b
reputation of a body that traded for profit, such as the claimant, was not
serious harm unless it had caused, or was likely to cause the body ‘serious
financial loss’. (v) Whether the pleaded allegations made out a case for the
grant of injunctions against the defendants. (vi) Whether summary relief was
to be granted. c
Held – (1) The power of the court in r 23.11 to proceed in the absence of a
party had to be exercised in accordance with the overriding objective. Where a
party failed to appear without providing a reason, it was necessary to consider
first whether they had had proper notice of the hearing date and the matters,
including the evidence, to be considered at the hearing. If satisfied that such d
notice had been given, the court had to examine the available evidence as to
the reasons why the party had not appeared. In the instant case, s 12 of the
1998 Act was engaged and in satisfaction of the requirements in that provision,
although there was no good reason for not notifying the defendants of the
proceedings, the claimant had taken all reasonable steps to notify them.
The defendants were to be taken to have had notice and an adequate time to e
respond. It was reasonable to infer that the emails sent to the proxy service
provider addresses had come to the attention of those responsible for the
operation of the website. The inference was that the reason why the
defendants were not present or represented was that they wished to remain
anonymous and were ‘hiding’. They had decided to avoid engaging with the
court process. There was therefore no reason not to proceed in the defendants’ f
absence (see [14]–[16], below); Sloutsker v Romanova [2015] 2 Costs LR 321
applied.
(2) There was no need to adduce evidence or for findings of fact to be made
when proceeding under r 12.11(1) on the basis of an applicant’s unchallenged
particulars of claim. However, departure from that general approach might be
g
necessary in an appropriate case, where, for example, it was concluded that the
applicant’s interpretation of the words complained of was wildly extravagant.
In the instant case, the conditions for obtaining judgment in default were met.
There was no feature of the case that required a departure from the general
approach (see [17]–[19], below); Sloutsker v Romanova [2015] All ER (D) 186 (Jul)
applied. h
(3) The court had jurisdiction to hear and determine the application under
s 10(1) of the 2013 Act. On the claimant’s pleaded factual case, the defendants
were persons who fell within the definition of ‘editor’ in s 1(2) of the 1996 Act
(see [23], below).
(4) ‘Serious’ was an ordinary English word and whether loss was serious
depended on the context. In the instant case, the meanings of the words j
complained of plainly had a defamatory tendency and the pleaded allegations
taken overall were sufficient to make out a case of ‘serious financial loss’ for

i Section 1, so far as material, is set out at [21], below.

j Section 1, so far as material, is set out at [26], below.
 QBD Brett Wilson v Person(s) Unknown 1009

a the purposes of s 1 of the 2013 Act. That was enough to justify judgment for
damages to be assessed. It was not necessary for that purpose to allege falsity
(see [26], [28], [30], [31], below).
(5) The pleaded allegations in the instant case made out a case for the grant
of both mandatory and prohibitory injunctions against the defendants. It was
alleged that the defendants had published allegations of a highly defamatory
b nature, which had caused serious financial loss, and that they were continuing
to do so. It was alleged that the allegations were false. None of that had been
contested by the defendants. The granting of the injunctions represented a
necessary interference with the defendants’ Convention right to freedom of
expression in s 12 of the 1998 Act in the pursuit of a legitimate aim, and went
c no further than required. The legitimate aim was the protection of the
reputation of the claimant against false and damaging allegations of
misconduct. It was contrary to the public interest for false or misleading
information to be issued on matters of that kind (see [32]–[34], below).
(6) Having regard to the evidence as well as the matters specified in s 8(4) of
the 1996 Act, there was no defence to the claim in the instant case and no other
d reason why it should be tried. The claimant was entitled to an award of the
maximum sum available by way of damages of £10,000 under s 9(1). It was
beyond dispute that the words complained of had a clear tendency to put
people off dealing with the claimant. That was their evident purpose.
The allegations were serious, and would be likely to deter anybody unfamiliar
with the firm from engaging its services. There was affirmative evidence that
e in all probability one client had been deterred, with probable financial loss.
The continued publication and the ‘grapevine’ effect of publication online had
to mean that the numbers to whom the defamatory messages were conveyed
were very likely to be substantially larger than the figures provided by the
evidence. Prospective clients had been put off dealing with the claimant, and
there had been a financially damaging impact on a serious scale. Moreover, the
f award needed to serve the purpose of vindication. Accordingly, the claimant’s
application would be allowed (see [38], [39], [42], [44], [45], below); Farrall v
Kordowski [2011] EWHC 2140 (QB), Robins v Kordowski [2011] All ER (D) 207
(Jul), Hussein v Hamilton Franks & Co Ltd [2013] All ER (D) 03 (Apr) and
The Bussey Law Firm PC v Page (aka Jay Page) [2015] All ER (D) 145 (Mar)
g considered.
Notes
For the meaning of ‘defamatory statement’, see 32 Halsbury’s Laws (5th edn)
(2012) para 543, and for the summary disposal of claims under the Defamation
Act 1996, see 32 Halsbury’s Laws (5th edn) (2012), para 707.
h For conditions to be satisfied for obtaining a default judgment, see
11 Halsbury’s Laws (5th edn) (2015), para 536.
For the Defamation Act 1996, ss 1, 8, 9, see 19(3) Halsbury’s Statutes (4th edn)
(2016 reissue) 1356, 1363, 1364.
For the Human Rights Act 1998, s 12, see 7(1) Halsbury’s Statutes (4th edn)
(2015 reissue) 878.
j For the Defamation Act 2013, ss 1, 10, see 19(3) Halsbury’s Statutes (4th edn)
(2016 reissue) 1382, 1393.

Cases referred to
Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC 1205
(Ch), [2003] 3 All ER 736, [2003] 1 WLR 1633.
1010 All England Law Reports [2016] 1 All ER

Bussey Law Firm PC, The v Page (aka Jay Page) [2015] EWHC 563 (QB), [2015] a
All ER (D) 145 (Mar).
Farrall v Kordowski [2011] EWHC 2140 (QB).
Fox v Graham Group Ltd (26 July 2001), Ch D.
Hussein v Hamilton Franks & Co Ltd [2013] EWHC 462 (QB), [2013] All ER (D)
03 (Apr).
Kerner v WX [2015] EWHC 128 (QB), [2015] All ER (D) 214 (Jan). b
Kerner v WX [2015] EWHC 178 (QB), [2015] All ER (D) 245 (Jan).
Kerner v WX [2015] EWHC 1247 (QB), [2015] All ER (D) 62 (May).
Law Society v Kordowski [2011] EWHC 3185 (QB), [2014] EMLR 2.
Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805, [2002]
1 All ER 652, sub nom Loutchansky v Times Newspapers Ltd (Nos 4 and 5) c
Loutchansky v Times Newspapers Ltd (Nos 2, 3 and 5) [2002] QB 783, [2002]
2 WLR 640.
Norwich Pharmacal Co v Customs and Excise Comrs [1973] 2 All ER 943, [1974] AC
133, [1973] 3 WLR 164.
Novartis Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty [2014] EWHC
3429 (QB). d
QRS v Beach [2014] EWHC 4189 (QB), [2015] 1 WLR 2701.
Robins v Kordowski [2011] EWHC 1912 (QB), [2011] All ER (D) 207 (Jul).
Sloutsker v Romanova [2015] EWHC 545 (QB), [2015] 2 Costs LR 321.
Sloutsker v Romanova [2015] EWHC 2053 (QB), [2015] All ER (D) 186 (Jul).
SmithKline Beecham Ltd v GSKline Ltd [2011] EWHC 169 (Ch).
Stone v WXY [2012] EWHC 3184 (QB), [2012] All ER (D) 129 (Nov). e

Application
Brett Wilson LLP, a firm of solicitors, brought proceedings against the
defendants, being person(s) unknown responsible for the operation and
publication of the website www.solicitorsfromhelluk.com, for the publication f
of alleged defamatory statements on the website. The claimant sought default
judgment pursuant to CPR 12.3(1) and 12.4(2) as well as summary disposal of
the case under ss 8 and 9 of the Defamation Act 1996, with relief in the form of
damages, injunctions and costs. The defendants did not appear and were not
represented. The facts are set out in the judgment.
g
Iain Wilson of Brett Wilson LLP for the claimant.
The defendants did not appear.
Judgment was reserved.

16 September 2014. The following judgment was delivered. h

WARBY J.
[1] Members of the legal profession and other readers of the law reports will
be familiar with ‘Solicitors from Hell’. It is the name used for and by a variety
of websites which, over a period of years, have been used as a vehicle for
denouncing solicitors and other members of the legal profession in the most j
outspoken terms, for alleged misconduct. The original website, set up by Rick
Kordowski, was at www.solicitorsfromhell.co.uk. That site was closed down
some years ago.
[2] The solicitors firm which is the claimant in this action acted for the
claimants in the litigation against Mr Kordowski, in which orders were made
 QBD Brett Wilson v Person(s) Unknown (Warby J) 1011

a that closed down the original Solicitors from Hell site: Law Society v Kordowski
[2011] EWHC 3185 (QB), [2014] EMLR 2. Now the firm itself has been
targeted, via a web address which is a simple variant of the original. I shall refer
to the new site as SFHUK.com.
[3] Some of the claims made against the operator(s) of Solicitors from Hell
websites in the past have been for harassment. The majority have been in libel,
b as is the present claim. There are two aspects to this claim. The first complains
of the listing of the claimant firm as one of the ‘Solicitors from hell’. The site
is, as its home page explains, devoted to complaints about ‘Solicitor fraud,
misconduct, incompetence, negligence, dishonesty, overcharging, corruption,
embezzlement, lying/perjury and racism’.
c [4] The second aspect of the claim arises from some words which refer
specifically to alleged conduct of the firm. An item referring to the claimant
appears on the site in the ‘complaints’ section. It is headed with the firm’s
name and address, and the headline or subject line ‘Harassment’. The item
takes the form of a letter of complaint by an anonymous client of the firm.
In summary, the letter accuses the firm of seeking to charge three times the
d quoted fee for a simple letter and then, when the client refused to pay,
unjustifiably threatening legal action and engaging in a campaign of
harassment.
[5] The offending words first appeared on SFHUK.com at some point
between 2 October 2014 and 15 January 2015, which is when the claimant
discovered their presence there. The words complained of were still on the site
e
at the date of the application before me in September 2015.
[6] The claimant firm has tried, in conjunction with the Law Society, to find
out the identity of the people who operate SFHUK.com, but without success.
They have discovered that the WHOIS registry lists ‘Anonymous Speech’ as the
website owners. Anonymous Speech is a proxy registrant service. It claims to
f move its servers from one country to another on a regular basis. It further
claims to ignore court orders originating from the EU or US. It appears to be
an organisation which specialises in providing proxy services to those who do
not wish to be traced.
[7] A letter of claim dated 20 February 2015 was emailed to an ‘info@’
address of SFHUK.com, but received no response. On 24 April 2015 the Law
g Society and the claimant obtained a Norwich Pharmacal order (Norwich
Pharmacal Co v Customs and Excise Comrs [1973] 2 All ER 943, [1974] AC 133)
against Anonymous Speech, requiring it to disclose identifying information
in relation to the owner/operator of SFHUK.com. The order provided
for its service by email to contact@anonymousspeech.com and
h abuse@anonymousspeech.com and two physical addresses, one in Tokyo and
the other in Panama. There was no response. So when, on 28 July 2015, the
claimants started this action claiming damages for libel and an injunction to
restrain the continued publication of the words complained of, they issued
their claim form against Persons Unknown.
[8] The legitimacy of this procedure has been recognised for over a decade,
j since Bloomsbury Publishing Group plc v News Group Newspapers Ltd [2003] EWHC
1205 (Ch), [2003] 3 All ER 736, [2003] 1 WLR 1633. It is necessary for the
unknown persons to be identified by description, in such a way as to identify
with certainty those who are included within it and those who are not. That
criterion has been met here by describing the defendants as ‘Persons Unknown
responsible for the operation and publication of the website [SFUK.com]’.
1012 All England Law Reports [2016] 1 All ER

[9] There is no difficulty in principle, if an action may be brought against a

persons unknown, in granting an injunction to restrain those persons from
carrying out acts such as the misuse of unlawfully obtained copies of a book
prior to its official publication date (as in the Bloomsbury case), or harassment
(as in Stone v WXY [2012] EWHC 3184 (QB), [2012] All ER (D) 129 (Nov), and
Kerner v WX [2015] EWHC 128 (QB), [2015] All ER (D) 214 (Jan)). In each of the
last two cases the defendants were described as ‘Persons Unknown responsible b
for pursuing and/or taking photographs of ’ the claimants at specified places on
specified dates.
[10] Although the injunctions granted in the cases just cited were all interim,
the court can grant final injunctive relief against persons unknown. McGowan
J did so in Novartis Pharmaceuticals UK Ltd v Stop Huntingdon Animal Cruelty c
[2014] EWHC 3429 (QB), where she concluded on the written evidence put
before her that the test for summary judgment in CPR 24.2 was satisfied.
[11] The relevant procedural safeguards must of course be applied.
A difficulty that can arise in cases of this kind is that of ensuring that the
unknown defendants have been duly served with the proceedings, and with any
application for interim or final relief. Kerner v WX provides an illustration of d
some of the difficulties: see the judgments at [2015] EWHC 178 (QB), [2015]
All ER (D) 245 (Jan) and [2015] EWHC 1247 (QB), [2015] All ER (D) 62 (May).
In the present case, however, the claimant applied on 28 July 2015, the day the
claim form was issued, for permission pursuant to CPR 6.15 to serve the claim
form, particulars of claim, any other statements of case, application notices
and documents in these proceedings by an alternative method, namely by e
email to the two addresses mentioned above. Master McCloud allowed that
application to be made without service on the defendants, and granted
permission. As submitted by the claimant, the email addresses are given as
contact addresses by Anonymous Speech, and it is reasonable to infer that they
are genuine addresses, and that emails sent to them will be brought to the
attention of the domain owners. f
[12] On the evening of 28 July the claimant emailed those two addresses with
the claim form, particulars of claim, Response Pack, Master McCloud’s order
and the documents that had been put before her. Certificates of service were
completed the following day, pursuant to CPR 6.17(2). I am satisfied that the
proceedings were duly served. Pursuant to CPR 23.10(1) the defendants had the g
right to apply to set aside or vary the order of Master McCloud. Paragraph 3 of
the order itself pointed this out. The time limit for making such an application
is seven days after the date the order was served on the person making the
application: r 23.10(2). No such application was made within that time limit, or
at all. Nor did the defendants file an acknowledgment of service or a defence
by the deadline for doing so which has been calculated as, and I accept was, h
13 August 2015. Indeed, nothing at all has been heard from the defendants.
[13] It is against that background that on 19 August 2015 the claimants issued
the application now before me, and served it on the defendants by the method
authorised by the order of Master McCloud. The application seeks, inevitably,
default judgment pursuant to CPR 12.3(1) and 12.4(2). It also seeks ‘summary
disposal of the case pursuant to s 8 of the Defamation Act 1996 with the j
following relief: (a) damages, (b) an injunction and (c) costs.’ The application is
supported by a witness statement of Mr Iain Wilson, a partner in the claimant
firm. Mr Wilson is not a solicitor-advocate but has prepared a skeleton
argument and appeared before me on the application and I have allowed him to
advance submissions.
 QBD Brett Wilson v Person(s) Unknown (Warby J) 1013

a [14] The first issue to be addressed is whether it is right to hear and dispose
of the claimant’s application in the absence of the defendants. I accept
Mr Wilson’s submission that I should follow the approach I identified in
Sloutsker v Romanova [2015] EWHC 545 (QB), [2015] 2 Costs LR 321
(at [22]–[23]):
b ‘[22] Where a party fails to appear at the hearing of an application the
court may proceed in their absence: CPR 23.11. This is a power that must
be exercised in accordance with the overriding objective. Ms Page properly
referred me to authority making it clear that the court should be very
careful before concluding that it is appropriate to proceed in the absence of
a litigant in person who is seeking for the first time to adjourn a hearing:
c Fox v Graham Group Ltd (26 July 2001) (Neuberger J); SmithKline Beecham Ltd
v GSKline Ltd [2011] EWHC 169 (Ch) (Arnold J), [6]. That is not the
situation here, however. The defendant has not sought an adjournment …
[23] Where a litigant fails to appear without giving a reason it is
necessary to consider first whether they have had proper notice of the
hearing date and the matters, including the evidence, to be considered at
d the hearing. If satisfied that such notice has been given, the court must
examine the available evidence as to the reasons why the litigant has not
appeared, to see if this provides a ground for adjourning the hearing.’
[15] The application in Sloutsker was the defendant’s application to set aside
service of proceedings on her outside the jurisdiction. In the present case, as
e Mr Wilson fairly points out, there is another important facet to the
requirement of proper notice, in the form of s 12(2) of the Human Rights
Act 1998 (HRA). Section 12 is engaged because the order the claimants seek
involves ‘relief which, if granted, might affect the exercise of the Convention
right to freedom of expression’ within the meaning of s 12(1). Section 12(2)
prohibits the court from granting such relief if the respondent is neither
f present nor represented, unless satisfied ‘(a) that the applicant has taken all
practicable steps to notify the respondent; or (b) that there are compelling
reasons why the respondent should not be notified’.
[16] There is clearly no good reason for not notifying the defendants in this
case. But I am satisfied that the claimant has taken all reasonable steps to notify
them. I am satisfied that the defendants have in fact had notice, and an
g
adequate time to respond if they chose. As I have already noted, it is reasonable
to infer that e-mails sent to the Anonymous Speech addresses have come to the
attention of those responsible for the operation of SFHUK.com. Indeed, that is
in my view highly probable. The inference I draw is that the reason why the
defendants are not present or represented at this hearing is that they wish to
h remain anonymous, and are ‘hiding’. They have decided, in my judgment, to
avoid engaging with the court process. I see no reason not to proceed in their
absence. On the contrary, there is good reason to proceed in their absence. Any
other course would lead to delay and further cost, without any justification.
[17] The conditions for obtaining judgment in default of an acknowledgment
of service prescribed by CPR 12.3(1) are met: the time for filing an
j acknowledgement of service or defence has expired, and neither has been filed.
This is not a case in which default judgment can be obtained by filing a request
pursuant to CPR 12.4(1). The claimant has, as required by CPR 12.4(2), made
an application pursuant to CPR 23.
[18] The claimant’s entitlement on such an application is to ‘such judgment
as it appears to the court that the claimant is entitled to on his statement of
1014 All England Law Reports [2016] 1 All ER

case’: CPR 12.11(1). I accept Mr Wilson’s submission that I should interpret and a
apply those words in the same way as I did in Sloutsker v Romanova [2015]
EWHC 2053 (QB), [2015] All ER (D) 186 (Jul) (at [84]):
‘This rule enables the court to proceed on the basis of the claimant’s
unchallenged particulars of claim. There is no need to adduce evidence or
for findings of fact to be made in cases where the defendant has not b
disputed the claimant’s allegations. That in my judgment will normally be
the right approach for the court to take. Examination of the merits will
usually involve unnecessary expenditure of time and resources and hence
[be] contrary to the overriding objective. It also runs the risk of needlessly
complicating matters if an application is later made to set aside the default
judgment: see QRS v Beach [2014] EWHC 4189 (QB), [2015] 1 WLR 2701, c
esp at [53]–[56].’
[19] As I said in the same judgment at [86], ‘the general approach outlined
above could need modification in an appropriate case, for instance if the court
concluded that the claimant’s interpretation of the words complained of was
wildly extravagant and impossible, or that the words were clearly not d
defamatory in their tendency’. Those instances of circumstances which might
require departure from the general rule are not exhaustive, but only examples.
I have considered whether there is any feature of the present case that might
require me to consider evidence, rather than the claimant’s pleaded case,
verified by a statement of truth and uncontradicted by the defendants. I do not e
think there is any such feature. I have therefore proceeded on the basis of the
pleaded case, both in my introductory description of the facts above, and in
reaching the conclusion that the claimant has established its right to recover
damages for libel, and to appropriate injunctions to ensure that the libel is not
further published by the defendants.
[20] In reaching those conclusions I have considered first the question of f
jurisdiction. Section 10(1) of the Defamation Act 2013 provides as follows:
‘(1) A court does not have jurisdiction to hear and determine an action
for defamation brought against a person who was not the author, editor or
publisher of the statement complained of unless the court is satisfied that
it is not reasonably practicable for an action to be brought against the g
author, editor or publisher.’
[21] Section 10(2) of the 2013 Act provides that the terms ‘author’, ‘editor’
and ‘publisher’ in this context have the same meaning as in s 1 of the
Defamation Act 1996. That section provides so far as material as follows:
h
‘(2) For this purpose “author”, “editor” and “publisher” have the
following meanings, which are further explained in subsection (3)—
“author” means the originator of the statement, but does not include a
person who did not intend that his statement be published at all;
“editor” means a person having editorial or equivalent responsibility for
the content of the statement or the decision to publish it; and j
“publisher” means a commercial publisher, that is, a person whose
business is issuing material to the public, or a section of the public, who
issues material containing the statement in the course of that business.
(3) A person shall not be considered the author, editor or publisher of a
statement if he is only involved—
 QBD Brett Wilson v Person(s) Unknown (Warby J) 1015

a (a) in printing, producing, distributing or selling printed material

containing the statement;
(b) in processing, making copies of, distributing, exhibiting or selling a
film or sound recording (as defined in Part I of the Copyright, Designs
and Patents Act 1988) containing the statement;
(c) in processing, making copies of, distributing or selling any
b electronic medium in or on which the statement is recorded, or in
operating or providing any equipment, system or service by means of
which the statement is retrieved, copied, distributed or made available in
electronic form;
(d) as the broadcaster of a live programme containing the statement in
c circumstances in which he has no effective control over the maker of the
statement;
(e) as the operator of or provider of access to a communications
system by means of which the statement is transmitted, or made
available, by a person over whom he has no effective control.
In a case not within paragraphs (a) to (e) the court may have regard to
d those provisions by way of analogy in deciding whether a person is to be
considered the author, editor or publisher of a statement.’
[22] The defendants in the present case are described in the title to the action
as persons ‘responsible for the operation and publication of ’ SFHUK.com.
They are described in para 3 of the particulars of claim as ‘an individual or
e group of individuals who has/have established and run a website at …
[SFHUK.com].’ Paragraph 5 alleges that SFHUK.com is ‘a website that
produces its own content and apparently allows third parties to submit material
for publication.’ In para 14 the particulars of claim allege that the defendants
‘published or caused to be published, and are continuing to publish, on
SFHUK.com’ the words complained of.
f [23] The particulars of claim do not allege that the defendants are in the
‘business’ of issuing material to the public, or contain any similar allegation.
It seems that the defendants are likely to fall outside the scope of the term
‘publisher’, as defined by s 1 of the 1996 Act. I cannot conclude, on the pleaded
case, that they fall within it. The claimant has not alleged, either, that the
defendants are the ‘authors’ of any of the words complained of, or made any
g similar allegation. Indeed, in para 39 of the particulars of claim it is said that ‘It
is not known whether the publication has been authored by the Defendant(s)
or whether it has been submitted by a third party’. I am satisfied, however, that
on the claimant’s pleaded factual case the persons unknown who are the
defendants to this action are persons within the definition of ‘editor’ in s 1(2),
h and that they are not within any of the categories described in s 1(3)(a) to (e),
or any analogous category. The court therefore has jurisdiction.
[24] That conclusion means it is not necessary for me to address the pleaded
allegation in para 39 of the particulars of claim that ‘if [the publication] has
been submitted by a third party it is not possible to identify him/her from the
publication and it is therefore not practicable (or indeed possible) to bring an
j action against him/her’. I would however say in passing that whilst the
evidential position may be different I am not sure that this pleading would
suffice to satisfy the proviso to s 10.
[25] The particulars of claim allege that the words which the defendants
published or caused to be published on SFHUK.com bore the following
defamatory meanings:
1016 All England Law Reports [2016] 1 All ER

‘(a) The Claimant is a shameless, corrupt, fraudulent, dishonest, a

unethical, incompetent and oppressive firm of solicitors which does not
provide competent services, has had a justified complaint made against
them and whose wrongdoing should be exposed to prevent others from
suffering by instructing them.
(b) The Claimant unscrupulously inflates costs.
(c) The quality of the Claimant’s work is sub-standard and poor value b
for money.
(d) The Claimant’s staff and/or partners are guilty of committing the
imprisonable offence of harassment contrary to section 1 of the
Protection from Harassment Act 1997.
(e) The Claimant breaches its professional obligations and acts c
contrary to the Solicitors Regulation Authority’s Code of Conduct.
(f) The Claimant’s staff and/or partners are rude, threatening,
intimidating and unprofessional.
(g) The Claimant “strong-armed” payment from a former client that
was not owed or warranted and thus committed an offence contrary to
section 40 of the Administration of Justice of Act 1970. d
(h) Prospective clients seeking to instruct the Claimant will receive
sub-standard advice and lose out financially.’
[26] The allegation that the words bore these meanings is an uncontradicted
allegation of fact, and it is not one that I consider extravagant. I proceed on the
basis that these are the natural and ordinary meanings of the words e
complained of. The meanings plainly have a defamatory tendency. Section 1(1)
of the Defamation Act 2013 provides however that ‘A statement is not
defamatory unless its publication has caused or is likely to cause serious harm
to the reputation of the claimant’. And by s 1(2) it is provided that ‘For the
purposes of this section, harm to the reputation of a body that trades for profit
is not “serious harm” unless it has caused or is likely to cause the body serious f
financial loss.’ The claimant is clearly a body that trades for profit.
[27] Allegations relevant to these requirements are made in para 2 of the
particulars of claim, which describes the claimant. Further relevant allegations
are made in paras 16 to 29, which appear under the heading ‘Serious harm to
reputation and financial harm’.
[28] Paragraph 16 states that ‘The Claimant believes that the publication of g
the defamatory words has caused serious harm to its reputation. It also believes
that the publication has caused it serious financial harm.’ This could be
criticised as a statement of belief rather than a statement of fact. I note also
that the statutory term is ‘financial loss’ not ‘financial harm’. If no more had
been pleaded I would have felt uneasy about granting default judgment.
h
I would have had to ask myself if these allegations were enough to show that
the serious harm requirement is met. In the event, enough is alleged in other
parts of the particulars of claim to satisfy me that the requirement is met.
[29] The features of the pleaded case that lead me to that conclusion are
these:
(i) The claimant is a ‘ “boutique” firm of solicitors based in London’ with j
two departments, one specialising in ‘defamation, privacy and harassment
law’, and the other in ‘criminal litigation, civil fraud, regulatory and
disciplinary proceedings’ (para 2).
(ii) ‘The firm is relatively small and is only five years old. Traditionally it
has attracted a considerable amount of work from the internet. Where
 QBD Brett Wilson v Person(s) Unknown (Warby J) 1017

a work comes from a different source, it is usual for the prospective client to
undertake some sort of ‘due dilligence’, this would typically involve a
Google search’ (para 21).
(iii) For six months, Google searches for Brett Wilson LLP or Brett
Wilson solicitors have produced the following result and snippet within the
top five listings, immediately below links to the firm’s own website
b (para 19):
‘SOLICITORS FROM HELL – Brett Wilson LLP Solicitors …
[web address given]
Rude, intimidating and threatening. Clients should stay well away
from Brett Wilson Solicitors.Have you complained about your solicitor
c and got nowhere?’
(iv) ‘… the publication has been read, and will inevitably continue to be
read, by a number of prospective clients considering instructing the
Claimant and undertaking research on the Claimant’s reputation’ (para 22).
(v) ‘It is inevitable that a number of prospective clients who have read (or
will read) the snippet and publication have decided (or will decide) not to
d
instruct Brett Wilson LLP as a result of what has been published.’
(vi) ‘The loss of a single instruction can cost the firm tens of thousands
of pounds (and in some instances more).’
(vii) ‘… on 20 April 2015 a litigation opponent raised the publication as
evidence that the Claimant was a disreputable firm.’
e (viii) ‘… on 25 July 2015 a prospective client who had previoulsy
indicated he wished to instruct the firm withdrew his instructions as a
result of the publication.’
(ix) ‘It can be inferred that there will have been a far greater number of
instances where an individual has read the publication or search result
snippet and not notified the Claimant. That is, they have simply decided to
f “go elsewhere” …’
(x) ‘The Claimant believe[s] that there has been a noticeable drop in the
conversion of enquiries from prospective clients to instructions over the
past six months …’
(xi) The Claimant has suffered financial loss …’
[30] Whilst the allegation quoted at [29](x) suffers from the same deficiency
g
as para 16, these pleaded allegations taken overall are in my judgment sufficient
to make out a case of serious financial loss. I need say little to elaborate on
that. ‘Serious’ is an ordinary English word. I would only add that whether loss
is serious must depend on the context.
[31] This is enough to justify judgment for damages to be assessed. It is not
h necessary for that purpose to allege falsity, although the particulars of claim
do so—no doubt for the purpose of supporting the claim for an injunction.
[32] I am satisfied that the pleaded allegations make out a case for the grant
of injunctions against the defendants. It is alleged that the defendants have
published allegations of a highly defamatory nature, which have caused serious
financial loss, and that they are continuing to do so. It is alleged that the
j allegations are false. None of this has been contested by the defendants.
The particulars of claim also set out the defendants’ failure to respond to the
letter of claim and these proceedings.
[33] Because s 12 of the HRA is engaged I must have particular regard to the
importance of the Convention right to freedom of expression: s 12(4). I must
be satisfied that the injunctive relief granted represents an interference which is
1018 All England Law Reports [2016] 1 All ER

necessary in the pursuit of a legitimate aim, and goes no further than required. a
I am so satisfied. The legitimate aim is the protection of the reputation of the
claimant against false and damaging allegations of misconduct. I bear in mind
that it is contrary to the public interest for false or misleading information to be
issued on matters of this kind.
[34] The injunctions now sought are both prohibitory and mandatory.
The mandatory orders are for the removal from the World Wide Web of b
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’. I hesitated at first over the mandatory orders, for
two reasons. I was initially concerned that these orders went beyond what is
sought in the particulars of claim. These claimed a negative injunction. c
However, there is a prayer for ‘further or other relief.’ Secondly, I wondered if
mandatory orders would impose obligations which the defendants might be
unable in practice to perform. However, given the way the defendants are
described and defined, I consider that these aspects of the order sought are
legitimate.
[35] The orders for damages to be assessed and for final injunctions to which d
I have just referred are available to the court on the application for default
judgment. As I have explained, however, the claimant’s application notice also
seeks summary disposal pursuant to ss 8 and 9 of the Defamation Act 1996.
Section 8 allows the court to give judgment for the claimant in a defamation
case and grant ‘summary relief ’ if it appears to the court ‘that there is no
defence to the claim which has a realistic prospect of success and no other e
reason why the claim should be tried’. Summary relief is defined by s 9:
‘9 Meaning of summary relief
(1) For the purposes of section 8 (summary disposal of claim) “summary
relief ” means such of the following as may be appropriate—
(a) a declaration that the statement was false and defamatory of the f
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 g
publishing the matter complained of.’
[36] This has been a relatively little-used procedure. That is probably because
summary judgment under CPR 24 is now available in defamation cases, and
the damages recoverable by way of summary relief remain capped at £10,000,
as they were when the procedure was first enacted. The procedure is invoked h
here, however, in order to bring a swift end to the matter and avoid assessment
proceedings which might well be disproportionately expensive. The claimant
does not seek a declaration of falsity or any order for an apology. The
application is for damages of £10,000 and an injunction. The procedure has
been used in similar circumstances and for similar reasons before, for example
in Robins v Kordowski [2011] EWHC 1912 (QB), [2011] All ER (D) 207 (Jul). j
[37] In Robins Tugendhat J held at [55]–[57] that the jurisdiction to grant
summary disposal is available after the court has entered default judgment for
damages to be assessed. He applied the reasoning of the Court of Appeal in
Loutchansky v Times Newspapers Ltd (No 2) [2001] EWCA Civ 1805, [2002]
1 All ER 652, sub nom Loutchansky v Times Newspapers Ltd (Nos 4 and 5)
 QBD Brett Wilson v Person(s) Unknown (Warby J) 1019

a Loutchansky v Times Newspapers Ltd (Nos 2, 3 and 5) [2002] QB 783, where

judgment on the merits had been entered after a trial. Tugendhat J concluded
that the criteria for summary disposal were satisfied and assessed damages at
£10,000. I am invited to do likewise.
[38] For these purposes I can and should have regard to evidence. CPR 53.2
provides that ‘In proceedings for summary disposal … rules 24.4 (procedure),
b 24.5 (evidence) and 24.6 (directions) apply’. I have allowed the claimant to
apply for summary disposal although no acknowledgement of service or
defence has been filed. The witness statement of Mr Wilson was served in
time, in compliance with r 24.4. CPR 24.5 and 24.6 are inapplicable to this case.
[39] Given what I have said already it is easy to conclude that Mr Wilson is
c correct when he asserts in para 25 of his witness statement that there is no
defence to the claim, and no other reason why it should be tried. In reaching
this conclusion I have considered the five matters to which s 8(4) of the 1996
Act directs me to have regard in deciding whether there is a reason for the
claim to be tried. I accept also that the claimant is entitled to an award of the
maximum sum available by way of damages under s 9(1), that is to say £10,000.
d [40] For this purpose the claimant relies on the matters pleaded in paras 16 to
29 and 40 of the particulars of claim, the material parts of which I have quoted
in para [29], above, and some supplementary evidence contained in the witness
statements of Mr Wilson and Emma Lyons. Ms Lyons is Head of Search at
Eight&Four digital marketing company, and runs digital marketing campaigns
for corporate clients including the claimant. Her evidence is that between
e 15 January and 27 July 2015 some 276 individuals carried out a search on
Google for ‘Brett Wilson LLP’ or ‘Brett Wilson solicitors’. She is able to provide
this figure because the firm has a Google Pay per Click account, which allows
one to see how many users have carried out a search of a particular term. A
further six weeks have passed since 27 July 2015 and the offending words have
remained online, with the snippet cited above returned among the top search
f results.
[41] Mr Wilson’s statement supports, evidentially, what is alleged in the
Particulars of Claim about the response of individual clients to the publication
complained of.
[42] It is beyond dispute that the words complained of had a clear tendency
g to put people off dealing with the claimant firm. That was their evident
purpose. The allegations are serious, and would be likely to deter anybody
unfamiliar with the firm from engaging its services. There is affirmative
evidence that in all probability one client was deterred, with probable financial
loss. I bear in mind that of the 276 searches identified by Ms Lyons, some may
have been repeats, and some may not have been serious enquiries, likely to lead
h to an instruction. Equally, however, the continued publication during August
and September and the ‘grapevine’ effect of publication including, if not
especially, online publication must mean that the numbers to whom the
defamatory messages were conveyed are very likely to be substantially larger.
I have no doubt that others were put off, and that there has been a financially
damaging impact on a serious scale. Quite apart from this, the award needs to
j serve the purpose of vindication.
[43] Mr Wilson draws my attention to other awards made in comparable
circumstances. He mentions not only Robins but also Farrall v Kordowski [2011]
EWHC 2140 (QB), Hussein v Hamilton Franks & Co Ltd [2013] EWHC 462 (QB),
[2013] All ER (D) 03 (Apr) and The Bussey Law Firm PC v Page (aka Jay Page)
[2015] EWHC 563 (QB), [2015] All ER (D) 145 (Mar). Farrall, like the present
1020 All England Law Reports [2016] 1 All ER

case, concerned a posting criticising the competence and integrity of a solicitor. a

The posting was thought to have been live for about a month. On an
application under ss 8 and 9 of the 1996 Act in a claim which was undefended
Lloyd-Jones J awarded £10,000. Hussein also involved an online ‘blacklist’, on
which the claimants were accused of fraud. On an assessment of damages,
three foreign claimants were awarded £20,000, £10,000 and £10,000.
In The Bussey Firm a US law firm and its principal sued an English defendant b
who had published a false and defamatory review on Google maps that was live
for approximately 12 months, alleging that the principal ‘pays for false reviews
and loses 80% of his cases’. After a trial Sir David Eady assessed damages for
the law firm ‘conservatively, at £25,000’.
[44] Every case depends on its own facts, but these four cases lend some c
support to my conclusion that the award of £10,000 is amply merited on the
facts of the present case.
[45] That disposes of the claim for summary relief in the form of damages.
Section 9(1)(d) of the 1996 Act allows me to prohibit republication but does not
at least in terms give me power to grant mandatory injunctions as part of an
order for summary relief. As I have explained, however, I have power to grant d
the injunctions sought as part of the default judgment process. It is better to
use that power in this case, and I do.
Application allowed.
Tara Psaila Barrister.