Hussein & Ors v Hamilton Franks & Co Ltd & Anr (2013)
The claimants are three family members who reside in the United States. C1 and C2 are doctors and all three claimants are also involved in the management of a family business there, engaging, amongst other things, in commodity trading. The claimants do however have British nationality, as well as substantial connections in this jurisdiction. D1 is a limited company purporting to specialise in commodity trading (“the Company”) and the owner of the website www.hamiltonfranks.com (“the Website”). D2 is a director and the chairman of the Company.
The claim was in relation to a ‘black list’ published on the Website. Specifically, D2 published allegations against the claimants of fraud and deception relating to business transactions. It was also claimed that C1 and C2 had been reported to their medical board as a result of fraudulent conduct on their behalf. The allegations had been published to known business associates and family members in this jurisdiction.
The defendants did not acknowledge service of the claim or lodge a defence within the relevant period of time. Consequently, the claimants applied for default judgment and sought both an injunction and damages.
Decision (Judge Moloney QC)
The claimants were entitled to default judgment under CPR Pt 12.
The words bore the meaning complained of, namely that the claimants had committed acts of fraud and deception, were unsafe to do business with and that their conduct had been so serious as to warrant an investigation by their regulatory body.
An injunction ought to be awarded since: a) the Website was operated within the jurisdiction and only an injunction granted here could prevent further publications on it; b) the claimants’ right to reputation outweighed the counterbalancing right to free speech; c) despite having had the opportunity to do so, the defendants had not proven the truth of the allegations complained of; d) consequently, it was to be presumed that the words were false and that the claimants had an untarnished reputation.
A higher award of damages would have been appropriate if the claimants had resided in this jurisdiction. However, the publication had clearly had a damaging effect in this jurisdiction where the claimants had substantial familial and business contacts. Given the scale of the publication and the serious nature of the allegations, an appropriate award of damages was £40,000 (£20,000 was awarded to C3 to reflect the fact that he had a more substantial reputation than C1 and C2 in this jurisdiction).
Of particular interest is the fact that while the claim had been limited to £15,000 in total, the judge nevertheless exercised his power under CPR Pt 16 in order to grant what he deemed to be the award required to achieve vindication.
Jonathan Scherbel-Ball, for the claimants, was instructed by Magrath LLP.
The judgment is available here.