APPROVED JUDGMENT (contd… Pages 51 to 55 of 75)
222. As Mr Statman said in evidence, it was not his position that the document itself was a cause of fright or fear. What frightened him was that he did not know what might follow next or what the defendant might do next.
223. It was put to Mr Statman that the allegations were a cover, the purpose of which, along with the other action, was to stifle any form of criticism or expression of opinion by the defendant and that the substance of the claimant’s complaints are not such which, viewed objectively, could reasonably be expected to cause harm or distress or the kind of reaction which he and his father describe. It was put to him that the claimants did not suffer any such harmful reaction. Miss Omar put to Mr Nick Statman each of the allegations.
224. The schedule starts with allegation (1). It is an email from the defendant to the franchisee Oliver Barber. It is dated 15th February 2012, to which I have already referred in this judgment, and I do not recite it here. I shall recite the pleaded complaint of harassment :
“The publication is generally negative commentary about the claimants’ companies and criticisms.”
And that this particular allegation:
“Contains a threat to report the claimants’ companies to the press or externally, stating there will be a lot more to come but [not] internally.”
[It should read, according to the email, “But not internally.”]
The offending statement which it is alleged constitutes an act of harassment is that there was here some kind of threat which overstepped any reasonable boundary in expressing a difference in view over the dispute which had arisen. The defendant denied that this email was capable of constituting harassment. His assertion was that he merely had a different view of the approach from the claimants. Miss Omar submitted that the statement “There will no doubt be a lot more to come but not internally” could not reasonably be expected to have caused any kind of reaction to the claimants and, in particular, Mr Statman. Reference was made throughout the submissions to the meeting held on 10th October 2011 between the claimants and the defendant and it is fair to say that at no stage did either claimant appear to be somewhat fragile in personality. Both are experienced businessman who demonstrated a capacity to ‘give and take’ in the meeting.
Allegation (2) is another email of 19th February 2012 from the defendant to Barber. The complaint again is that the defendant has written a generally negative commentary about them, their companies and that there was a threat to report them to the press, concluding by citing from the email:
“If he [that is Nick Statman] does decide to terminate, then I will assess what is released and how to other franchisees and to the public at large.”
Again, the submission from Miss Omar was that this simply could not in its own right constitute an act of harassment having regard to the context.
225. Allegation (3) is the email of 24th February 2012 from the defendant to the Gateway franchisees entitled, “Franchisee bankruptcy notification.” The complaint about this email is:
“General negative commentary about the claimants’ companies and criticisms. Also threat to report the companies and operations to the press.”
226. The submission of Miss Omar was identical in relation to this allegation. So far as the defendant was concerned, the information which was alluded to in this email and his criticism did not go beyond information in the public domain in any event, not least the OFT report to which reference has been made. The boundary identified in the judicial guidance was not even approached let alone overstepped.
227. Allegation (4) is the defendant’s blog dated March 2012 entitled, “About me”. The complaint is that the defendant created an online public profile (which tagged the claimant’s companies, existing newspaper articles and his other blog) and refers to the franchise being a complete disaster and was generally negative in nature. It is unnecessary for me to recite this blog in the circumstances. Miss Omar submitted that there was simply nothing in this blog beyond the tagging of the claimants’ companies, which was accepted and which was permissible or, as the defendant explained, he was simply using his abilities to increase the rankings of his posts and had no other motive for it. Provided that the content did not cross the boundary under the Act the claimants could have no complaint and certainly could not complain in light of the judicial guidance as to what does or does not constitute actionable harassment simply because the blog was “generally negative in nature”. By asserting that his franchise had been a complete disaster could not constitute harassment.
228. Allegation (5) is dated 22nd March 2012. It is another of the defendant’s blogs entitled, “Gateway Homes franchise left me a wreck too!” Once again, the complaint is ‘generally negative commentary’. The claimants’ companies are tagged so that when the companies are entered into the search engine, such as Google, the blog and related articles appear highly ranked within those search results. The claimants also complain that within this blog the defendant has given notice that he intends to continue to blog over the next few weeks.
229. Miss Omar submitted, once again, that mere general negative commentaries about the claimants’ companies come nowhere near crossing the line or boundary and that the mere fact that companies are tagged in the manner explained by the defendant does not take the matter further. It would, of course, be a different matter (an exacerbating feature as well) if the particular article was of itself capable of constituting harassment and, adding insult to injury, was used within the search engine by way of tagging as to multiply the effect of it but, it was submitted, that simply is not the case here. So far as the defendant’s position was concerned, the writing of negative experiences is perfectly permissible and he is not responsible for how search engines work. He is, of course, knowledgeable in these matters and in the event that he produced an article which in itself is capable of being an act of harassment, then he would run the risk which multiple exposures would involve, especially in relation to appropriate remedy. If he used that specialist knowledge in search engine optimisation to increase the publication of an oppressive publication and thus exacerbate the general suffering of the victim such would be actionable, and serious. But, Miss Omar submitted, on the facts in this case, that is proposition was simply not arguable.
230. Allegation (6) is another blog dated 23rd March 2012 entitled, “Sorry to all house sellers in Lincolnshire that have been messed around by Gateway Homes.” Again, the complaint here is the ‘general negative commentary’ and the tagging so as to boost the rankings into highly ranked. The underlying averment, the claimants complain, is that the companies have not been operating in a truthful and honest way.
231. Against that, it is necessary to consider the context of this particular article in response to prior publications and also, of course, the defendant’s explanation which I have already summarised. Miss Omar submitted again for the reasons which I have summarised this allegation of itself simply does not come near the boundary which has to be crossed.
232. Allegation (7) is another blog dated 26th March 2012 and, again, the same comments are made by the claimants. This is a similar blog to the previous one with the title, “Sorry to all house sellers in Wolverhampton that have been messed around by Gateway Homes.” The defendant was cross-examined on this by Mr Richardson on this and the other blogs of similar nature along the lines of not so much the actual content of the blog, in respect of which it was made clear the claimants took issue for the reasons explained by Mr Statman, but the defendant’s calculated and expert use of IT and, in particular, search engine optimisation techniques.
233. Again, the defendant’s position was that it is lawful to use such techniques, he has not put in anything, according to him, which was unlawful and that it is not rendered unlawful merely because he is able to boost its rankings, which he said was his aim. He did not accept that there was any desire for revenge or to pursue a vendetta.
234. Allegation (8) is an email dated 27th March 2012 to which reference has been made already earlier in this judgment from the defendant to the franchisees entitled, “Good luck to all. You may need it.” The claimants do not quote any specific extract but, rather, complain that the defendant had emailed a copy of the non-disclosure injunction to all franchisees of the claimants’ company and indicated he was setting up two websites that he was planning to write on about his experiences with the claimants and their companies.
235. It was denied by the defendant that this could constitute any kind of harassment. He denied that he had harassed the claimants and Miss Omar developed her submissions along the same lines that it cannot be harassment in these circumstances, for example, to publish a copy of a non-disclosure injunction to all franchisees or, indeed, to set up two websites. One has to look at the actual content before this allegation could get off the ground. It was submitted, accordingly, that this allegation also failed to get off the ground when compared to the clear boundary which has to be crossed pursuant to the judicial guidance to which I have referred.
236. Allegation (9) is a blog entitled, “Gateway franchise failure comparable to divorce” dated 5th April 2012. This was the last of the blogs before the October blogs recommenced. The complaint is that this was a ‘generally negative commentary’ about the claimants’ companies. Again, the companies had been tagged and it was alleged within this blog that the franchise programme was a total failure. Assuming that to be the basis of this particular allegation, I did not detect any kind of true concern from the first claimant that in alleging that the defendant’s financial failure was down to a total failure of the franchise programme, that that of itself had caused him harassment leading to the reaction referred to within the statement to which I have referred. Even if it was such a reaction to such a commentary such kind of reaction would not have been reasonably foreseeable.
237. Again, the defendant’s position was that this was fair, factual comment and legitimate opinion. It was not calculated in any event to cause the claimants’ personal distress or harassment. It was merely a means of him expressing his own opinions. Miss Omar made the same submissions, to the effect that this is not an allegation of itself which is capable of crossing the necessary boundary.
238. Allegation (10) is to be found in the affidavit of Miss Slater dated 23rd November 2012 and, in particular, exhibit page 30 which, in turn, is a file note of 8th November 2012 which, in turn, records a discussion which she had had with a police sergeant in relation to the event which took place prior to the arrest of the defendant. The complaint here is that it was on that date that the claimants’ solicitors ascertained that the defendant had actually attended the police station to report an alleged assault which had taken place between the claimants and the defendant in October 2011 (see earlier in the judgment). In evidence, the claimants’ complaint was to the effect that it is upsetting to be accused, not least some time after the event, of having assaulted a person when that complaint was wholly unfounded.
239. The defendant’s position was that he was justified, certainly from his perspective, in making that complaint, albeit some time after the event and prompted by more recent events. The defendant relied upon the transcript and audio copy of the meeting to show that there was basis in fact for his complaint and he gave evidence that he did in fact feel intimidated by the actions of Mr Malcolm Statman and that he did feel that he could not, though he wished to, simply leave, due to the aggressive abuse from Mr Malcolm Statman.
240. Both claimants accepted, rightly, that there could be no complaint where there was a basis in fact for any such report to the police. Mr Nick Statman added that where the report was malicious a legitimate complaint could be made. The difficulty with this particular allegation, leaving aside the fact that it was revealed to the claimants’ solicitors in the manner in which it was, lies in the fact that the court has heard the audio copy and read the transcript and I have already made findings that I accept the defendant’s evidence in relation to that matter and that, whereas it is perfectly understandable that the police may not have wished to take any further action that response did not render the allegation groundless or malicious. In my judgment, the defendant had cause to complain about the conduct of Mr Malcolm Statman, for the reasons I have indicated albeit he delayed in reporting to the police. It is in those circumstances that I reiterate that I found Mr Malcolm Statman’s evidence on this particular matter unreliable and, indeed, that of Mr Nick Statman, who was in the room witnessing what went on.
241. Allegation (11) is another blog dated 11th October 2012 entitled, “An introduction to the below market sector property world, part 1” to which reference has previously been made in the other action. So far as this blog is concerned, in addition to the ‘generally negative comments’ and the tagging which appears with each of these blogs, the claimants specifically draw attention to the claimants’ companies being “murkier and murkier”, “Deal with them at your peril”, “in need of serious regulation”, “a baptism of fire of this company”, “mistake in trusting this company with a serious amount of money”, “dodgy”, “morally questionable”, “entering into a potential nightmare”, “would not recommend anyone in their right mind to agree to sign any paperwork with this company” and “physical and verbal threats from the directors.”
242. So far as the introduction of this blog is concerned, it states:
“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. Be warned if you are trying to sell your house to one of them. Deal with them at your peril. This area of property market is in serious need of management and regulation.”
A little further on:
“There are also lots of so-called BMV investment companies where you can allegedly get good deals on buying property with 20, 25, 30 percent or more off. Be warned, they too may not be quite what they claim. Values are often highly inflated to make the figures look good.”
Then there is, as I referred to previously, finally a reference to the Mirror article and a number of companies tagged.
243. The blog is not overtly complimentary, to put it at its lowest, of the claimants or their companies. The blog does, however, for the large part, whilst the title admittedly does refer to the claimants’ companies, clearly refer to this particular sector and many or lots of companies out there in this field, which he described as ‘murky’ and which would result in people dealing with them ‘at their peril’. He refers to a number of so-called BMV investment companies and, without identifying or associating this with the claimants, refers to dodgy mortgages, in fact, and that his goal over the next few weeks or months would be:
“To help provide advice to avoid pitfalls in relation to these morally questionable and less than ethical so-called property buyers, muggers, that exist in the BMV world.”
244. Now, it may be possible for the claimants to suffer true upset at the thought that the defendant was tarring everyone with the same brush but the actual allegations had been made before the defendant’s blogs and since have been repeated and expanded upon not only by the BBC report but also by the OFT report to which I have referred.
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
Find pages 26 to 30 here
Find pages 31 to 35 here
Find pages 36 to 40 here
Find pages 41 to 45 here
Find pages 46 to 50 here
Find pages 51 to 55 here
Find pages 56 to 60 here
Find pages 61 to 65 here
Find pages 66 to 70 here
Find pages 71 to 75 here
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