APPROVED JUDGMENT (contd… Pages 26 to 30 of 75)
112. The defendant then tagged this blog to the Gateway Homes companies. Thus, the gravamen of this allegation is that in this blog the defendant has revealed information which would allow a third party to see that there was, in fact, a franchise agreement, that the duration of the agreement was 22 months and that the termination of that agreement was on 20th March 2012. Mr Richardson developed the claimants’ complaints by arguing that any information in accordance with the clauses relied upon relating to the fact of the agreement was of itself confidential and, therefore, there was a breach of that clause by the defendant.
113. Miss Omar submitted that this information could not possibly have been within the contemplation of the parties, according to the true construction of the clause relied on. The aim or purpose of the clause could not reasonably have been to catch or protect this kind of innocent, background information. That is, that this information is not ‘confidential’. In any event, it could not reasonably justify the granting of a permanent injunction.
114. Allegation (19) is another blog by the defendant, posted on 26th March 2012 entitled, “Sorry to all house sellers in Wolverhampton that may have been messed around by Gateway Homes.” The complaint here is that the defendant disclosed the nature of transactions with vendors and the terms of the franchise agreements by referring to the duration and termination of the agreement. Thus:
“This is a public apology for me to all those house sellers and vendors that I have visited in Wolverhampton between June 2010 and March 2012 that may have agreed to sell their property to Gateway Homes, Gateway Homes UK Limited, and for reasons beyond my control those purchases have failed or you have felt you have been messed around in any way. I am personally sorry. I in no way continue to support or condone the actions of the companies that operate under the banner of Gateway Homes Group. As a franchisee of the above for the above period covering Wolverhampton, including Dudley, Walsall etc, I operated in good faith that the marketing and operations of the company were true and honest.”
115. The defendant responded to the effect that these were post-termination publications and were not relied on in the original particulars of claim. Miss Omar made this point by complaining that the particulars of claim had not been amended to update the allegations. There is no substance in that complaint because the court had previously directed that a properly constituted schedule should be filed and it is that schedule which pleads the allegations complained of.
116. Miss Omar complained, with some justification, that the blanket reliance upon clauses 18.104.22.168 to 22.214.171.124 within the relevant column in the schedule failed clearly to identify in relation to each of the allegations which particular sub-clause was in fact relied on. Mr Richardson in his submissions explained that each of the sub-clauses were relied on, though he placed particular, though not exclusive, reliance, on sub-clause (2) and, where appropriate, subclause (3).
117. Miss Omar submitted that the blog was ostensibly inoffensive. The reference to the fact or existence of an agreement to which the defendant was subject, between those dates, could hardly of itself give rise to a breach of the confidentiality clause(s).
118. These facts appeared to be inoffensive and were included in context within the piece or blog. There is no reference to the contents or terms of the agreement. There is no reference to any sensitive information concerning the particular terms of the particular franchise agreement which might have been of concern to the claimants.
119. Allegation (18) is a similar blog entitled, “Sorry to all house sellers in Lincolnshire that have been messed around by Gateway Homes.” This was posted on 23rd March 2012 and is in similar terms. The complaints of the claimants follow those of allegation (19) and the response from the defendant, as articulated by Miss, Omar is again similar.
120. Allegation (20) is the defendant’s farewell email to all franchisees, dated 27th March 2012. The nature of the complaint and the defendant’s response follows those of the preceding allegations which I need not repeat. The claimants complain that the defendant wrote to his former franchisees in the following terms under the heading, “Good luck to you all. You may need it.” The schedule omits the first five words but the whole of the sentence reads as follows:
“If you hadn’t already heard, Gateway’s lawyers wrote to me on Tuesday, 20th March 2012 terminating my contract and thereby taking back my six territories. 19 contracts in progress and over £100,000 of my money already paid and over £100,000 of losses and two years of working for nothing.”
It is to be noted that nowhere within this email [or in the other emails] does the defendant disclose or refer to the terms or contents of his own particular agreement. Rather, he was simply complaining that he had suffered particular losses which, in evidence, as he accepted, could have been attributed to (or explained by) his own shortcomings.
121. Allegation (21) is another blog by the defendant posted on 11th October 2012. The claimants through Mr Richardson draw attention to the gap between March/April 2012 and 11th October 2012. It was submitted that the defendant was at that time prompted into acts of vengeance and that he set out to harass the claimants and, in particular, the director and former director, Mr Nick Statman and Mr Malcolm Statman respectively. The harassment proceedings were commenced at about that time (see later). Mr Richardson submitted that the defendant was then engaged concurrently in a desire to reveal confidential information to third parties and that the re- surge of blogs was prompted by the striking out of his counterclaim. In his evidence, the defendant rejected that assertion but accepted that it was the trigger for him posting these blogs but he did so without the motives suggested to him by Mr Richardson (of revenge and vilification).
122. The blog (allegation (21)) is entitled, “An introduction to the below market sector property world, part 1, or why not to buy a Gateway Homes UK Limited franchise, part 1, or why not to sell your property to a BMV company, part 1”. The blog starts:
“February 2010 started blithely beginning a journey into the property market that I had been interested in for many years. However, the deeper you get into the world of below market value or BMV or buy your house for cash companies, the murkier and murkier it gets. There are lots of companies out there but, be warned, if you are trying to sell your house to one of them, deal with them at your peril. This area of the property market is in serious need of management and regulation. I am going to embark on a series of blog posts that will shed some light on the process I went through, starting in February 2010 by buying a Gateway Homes UK Limited franchise and my baptism of fire with this company and the world of BMV property. Over two and a half years later in the middle of litigation with this company, I think it is time I shared my knowledge and understanding of how to avoid the same mistakes I and others made in trusting this company with a serious amount of money. Even in these zero bank interest times, we would all have been considerably financially better off staying away.”
The allegedly offending part reads:
“Having been terminated as a franchisee in March 2012, I’m now financially much better off even though my bankruptcy is fast approaching. There are also lots of so-called BMV investment companies where you can allegedly get good deals on buying properties with 20, 25, 30 percent or more off. Be warned, they too may not quite be what they claim. Values are often highly inflated to make the figures look good. Actually buying this property this way can be fraught with danger and selling can even be worse.”
123. The defendant then went on to deal with that which he described as ‘dodgy’ mortgages and his goal over the next few months or weeks to provide a detailed account of what questions to ask and pitfalls to avoid and so on. He concluded:
“I’m not the first franchisee to be threatened or, indeed, taken to court, I believe, by Gateway Homes UK Limited. Tony Barlow was the first victim. See http:blogs.mirror.co uk/investigations/2011. Although it seems his silence was bought with the return of his initial franchisee fee, money talks, eh? As for me, a one-offer it may be excusable/clash of personalities but subsequent physical and verbal threats from the directors followed by litigation, you have to ask yourself would you invest in a company that deals with its franchisees in this manner?”
124. The sentences commencing, “Having been terminated as a franchisee” and, “There are also lots of so-called BMV investment companies” [see paragraph 120 above] constitute allegation (21). It is alleged that that blog falls foul of the express confidentiality clause because it reveals terms of the agreement and also deals with the operation and success or terms of his, the defendant’s, own franchise.
125. Miss Omar submitted that this is, in the context of breach of confidentiality, an innocuous blog which does not give rise to any apparent or overt breach of the confidentiality clause. The defendant denies that he directly or impliedly implicated the claimants. Rather, his blog made it clear that his comments were addressed to the sector generally. It is to be noted that at the outset of this blog the defendant refers to the fact that, “There are lots of companies out there and you should deal with them at your peril.” He repeated that in the second extract about which the claimants complain. It is true that the blog then goes on to confirm that his franchise terminated in March 2012 and that the reader could discern that his franchise, therefore, commenced in February 2010. Thus, the complaint is made that the defendant has fallen foul of the confidentiality clause by commenting on the fact of termination of his (unsuccessful) agreement. For the same reasons as submitted earlier and to which I have referred, Miss Omar submitted that this information cannot fairly or reasonably be described as confidential, it could not come within the ambit of the confidentiality clause in question and that, in any event, it could not now form the basis of a permanent injunction having regard to the (lack of) substance in the complaint.
126. Allegation (22) is a comment posted by the defendant on 23rd October 2012 entitled, “Public apology Mr Haywood” which was posted on an article from the express.co.uk website, “Quick house sale not all it seemed.” The complaint made by the claimants is that the defendant has chosen to provide a comment to the Express article to which reference has previously been made and, in doing so, has used a form of words which constitutes a breach of the confidentiality clause. That is, in stating:
“The valuation was based on my work and not Malcolm’s. I never made any offer based on a vendor’s valuation” ,and,
“Why was I not informed that a reduced offer had been made?”
The article related to Mr Malcolm Haywood, whose complaint, as publicised by the Sunday Express, has already been referred to. The ‘public apology’ was in these terms:
“I am the Stuart Brown mentioned in the [Express] article. Firstly, I’d like to apologise to Mr Haywood for the distress and anxiety caused by Gateway Homes Limited. As a franchisee at the time, I did not have any idea as to this happening. I believe I was acting in good faith on behalf of this company. Secondly, I’d like to point out some inaccuracies in Mr Statman’s comments.”
That is Mr Statman had posted in comments himself earlier.
“(1) The valuation was based on my work and valuation, not Malcolm’s. I never made any offer based on a vendor’s valuation.
(2) Total transparency. Then why did Mr Nick Statman inform his franchisees that this complaint existed and/or was being investigated by the Sunday Express?
(3) Why was I not informed that a reduced offer had been made? The first I knew of this offer was a friend texting on the day of the publication and said, ‘Is that you in the Sunday Express?’”
127. The complaint, as I have indicated, within the schedule is that this is another disclosure by the defendant relating to his, the defendant’s, own franchise and that the defendant was engaged in disclosing confidential information or information concerning the system as to how offers were formulated by the defendants. Miss Omar submitted that the court should consider the defendant’s comments in the context of the article and in the context of the information already being within the public domain (see the two national press reports). I was invited to prefer the defendant’s explanation given in evidence that at no stage did he make any such comment for the purpose of causing vexation or to further any kind of vengeance upon the claimant. Rather, he felt constrained to respond since he had been named in the article and that he wished to make it clear that the valuation was his and not that of the vendors as, so the defendant thought, inferred by the comments of Mr Statman. Miss Omar submitted that these comments could not fairly be described as being a breach of the confidentiality clause and she repeated her earlier submissions in response to this allegation.
128. Allegations (23), (24) and (25) are taken from the witness statement filed by the defendant within these proceedings in response to requests for further information.
129. Allegation (23) has been given the date of 26th October 2012, being the date on which the defendant registered his website “BMVpropertywatch.co.uk”. The complaint is that the defendant admitted in his witness statement at paragraph 7 that he had purchased this website. The complaint is that the intended purpose of that website was to report on the below market value property sector, drawing on his experience of the claimants acquired during his franchise with the claimant and thus to reveal confidential information about the claimants and their operations. The complaint is that, within this statement, which explains the acquisition of this website, the defendant acknowledged his own breach of the confidentiality clause.
130. Miss Omar submitted that the defendant has done no such thing. The allegation is based wholly on unwarranted speculation. It is true that in his statement at paragraph 7 the defendant stated that he drew on his experience of the claimants and the claimants’ competitors during his two year franchise experience (and that which he asserted was the misery which it brought). In his formal response, the defendant referred in particular to the OFT report to which I have referred and asserted that he has a right to offer advice, tips, frequently asked questions and general knowledge which he has gained in his professional career. He complained that the temporary injunction prevented him from earning potential revenue from this proposed venture. The defendant’s complaint is that any information posted on his website would be information which was already in the public domain. He complained that it was unreasonable to be prohibited from sharing his experiences gained in this sector and that the claimants were in truth seeking, and did so from the outset, to gag him from saying anything related to the claimants or the sector in which they operate under the guise of the confidentiality clause.
Find pages 1 to 5 here
Find pages 6 to 10 here
Find pages 11 to 15 here
Find pages 16 to 20 here
Find pages 21 to 25 here
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Mr Nicholas Charles Statman aka Nick teflon-coat Statman
Mr Malcolm Robert Statman aka Malcolm bully-boy Statman
Gateway Homes Nationwide Franchise Ltd / Whitehall Franchise Ltd (in liquidation from August 2014)
Gateway Homes UK Ltd
(Other trading companies / names in operation –
CXI 92 LIMITED
KINGSBRIDGE AND CARTER LTD
SPEEDY PROPERTIES LTD
TOM CRAVEN LIMITED
ROBERT CHARLES PROPERTY LIMITED
GATEWAY HOMES RENTALS UK LIMITED
GATEWAY HOLDINGS (UK) LIMITED
GATEWAY HOMES RENTALS UK LIMITED
PROP BUY LTD
ROOST UK LIMITED)
Claimants Legal Team (upto end July 2014) –
Miss Kaye Longhorn – Cohen Cramer Solicitors(apparently now departed employment)
Miss Emily Slater – Cohen Cramer Solicitors(apparently now been fired) aka Miss Emily I-am-the-law Slater
Miss Gemma Bowkett – Cohen Cramer Solicitors(apparently now departed employment)
Mr Michael McDonnell – Cohen Cramer Solicitors
Mr Matthew Richardson – Barrister @ Henderson Chambers aka Mr Matthew tweedledum Richardson (Ex-UKIP General Secretary … that didn’t last long!)
Mr Adam Richardson – Barrister @ Warwick House Chambers aka Mr Adam tweedledee Richardson
Claimants Legal Team (post July 2014) –
Miss Clare Painter – Group Manager, Gateway Homes UK Ltd aka Jane Wood (trying to act as a McKenzie Friend)
Mr Nick Statman – acting as a Litigant In Person
Mr Stuart Brown – acting as Litigant In Person, represented at Trial by Miss Omar