And so, after mentioning my instruction on Danny Hyde’s defence to a claim by Fergus Wilson here, the hearing came to pass…. but we’ll come to the result in a minute or several.
Fergus Wilson, for the few amongst you who will not have come across him, is a very large scale buy to let landlord based in Kent. He has an interesting history, of which some highlights are:
- Evicting tenants (including single mothers or ‘battered wives’) because they were on housing benefit or ‘likely to result in property damage‘.
- Being convicted of assaulting his letting agent (and losing the appeal, in which he acted in person).
- Losing an appeal against a charge by Ashford Borough Council when the council had had to carry out emergency repairs to restore heating and hot water for one of his tenants (and child), as Wilson had failed to do so.
- Bringing a claim for harassment against a tenant who had made a report to police that he had sexually assaulted her while carrying out work in the property.
- Faced (and maybe still facing?) a prosecution for sending a threatening email to a tenant via his letting agent.
- And lastly, and most immediately relevant, Wilson defended in person and lost on a claim for an injunction by the Equalities and Human Rights Commission to stop him having a letting policy that banned prospective ‘coloured’ tenants, because of, well, steamingly obvious direct discrimination.
It was as a result of that last court decision that Danny Hyde, a young youtube vlogger from Somerset, made a video, which was, we might say, demotically critical of Mr Wilson. Danny described Mr Wilson by a couple of choice terms, best described as vulgar. I won’t include them, so that the email of this post gets through filters, but the Metro newspaper helpfully set them out in its article, screenshot below.
Somehow, given that youtube channels by young men from Somerset are not, one imagines, Fergus Wilson’s natural browsing territory, it came to his attention. Mr Wilson did not, he has publicly said, mind being called racist, it was the names he had been called that gave rise to what followed.
The result was a civil claim against Danny Hyde for £10,000 (or rather £9,999 – cynically aimed at the small claims track). However, as became rapidly apparent once I and the excellent Gerard Clarke of Blackstone Chambers came on board pro bono, there were some oddities about the claim.
The claim was in the name of Mrs Wilson. Who, of course, was not mentioned in the video at all. We were later assured this was ‘a mistake’. Heaven knows how one brings a claim in someone else’s name by mistake, but there we are,
And then, the claim purported to be for ‘breach of the Malicious Communications Act 1988’. Two problems there. First, that Act only provides for a criminal offence, not a civil tort or other civil cause of action. Second, there is simply no way in law that the words that so offended Mr Wilson could be ‘grossly offensive’ for the purposes of the Act. Witness, for instance, that they were published on a national media outlet’s website without any public offence or outcry whatsoever.
This was pointed out to Mrs & Mr Wilson, as was the utter lack of any basis for an alternative head of claim. Nonetheless, if I may hugely misapply a current phrase, he persisted.
And so, to the hearing at Yeovil County Court of 31 January. There is a gloriously bewildered report in the Western Gazette – a reporter attended – but the upshot was this.
Gerard Clarke attended for Danny Hyde. Neither of the Wilsons attended. Apparently it was ‘too far’ for them to come. Instead they had instructed an ‘advocate’ (often someone who has passed the BPTC, but not got pupillage (yet), so has no practising rights and no rights of audience in any matter heard outside of chambers – and arguably not even in chambers).
Despite the hearing being in open court, the District Judge kindly agreed to hear the advocate, whose instructions extended only to seeking a transfer of the claim to Maidstone County Court (Wilson’s home court. That was never going to fly, as had been explained to him – CPR 26.2A(3)), and a request for permission to amend the claim to be under Protection from Harassment Act 1997, albeit with no draft amended particulars and no explanation of the basis for such a claim. Both were unsurprisingly refused.
Danny Hyde’s application to have the claim dismissed, on the other hand, was successful. There was no cause of action as pleaded and the claim appeared to be an attempt to interfere with Danny Hyde’s Article 10 rights to freedom of expression.
According to the Western Gazette, District Judge Davis found “I have to say it’d be hard to think of a case better suited to be struck out. This claim has no justifiable basis in law.”
A costs schedule for pro bono costs had been served. DJ Davis found a pro bono costs order was appropriate and ordered the claimant to pay £3000 in costs payable to the Legal Access Foundation. Costs were at large as the claim had not been allocated to track, I must note.
Wilson’s attempt to get Danny Hyde to take down the words that he disliked, under threat of a £9,999 damages claim, has ended in the claim being dismissed, the video remaining up and a £3000 costs order against Wilson.
Thanks again to Gerard Clarke and my sympathies to the poor advocate thrown into this by Wilson. I understand that the Judge took the time to make clear there was nothing else she could have done.
There is, of course, an access to justice issue here. Wilson might have been doing this largely in person, but he is a person of considerable means. Danny Hyde has no money and, I don’t think he would mind me saying, he had no idea of the legal process and was somewhat scared of having to put a case to a judge. As there is no reasonable basis for relying on pro bono to fill this hole – Gerard and I happened to pick this matter up through a media report – what actually is there to stop those who can afford it bringing abusive, bullying claims to get their own ends, and drawing out the process to intimidate, even if they lose the claim in the end?
Update: Kentonline has the story with a reaction from Fergus Wilson. I don’t think he has quite grasped why the case wasn’t ‘suitable for the county court’.