HomeInsightsHigh Court finds that a defendant had breached undertakings not to publish further defamatory statements, but that the claimant was not entitled to injunctive relief to prevent future publication

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The claimant, Lance Ranger, is a practising solicitor in England & Wales and the owner and Managing Director of Attendus Trust Company AG, a global fiduciary company providing professional trust, legal and business services, based in Switzerland.

The defendant, Mr Pycraft, is a former photo-journalist. After his father’s death in 2013, Mr Pycraft became convinced there were serious irregularities in the management and distribution of assets relating to the estate, in particular as regards a trust managed by Attendus. He contacted Attendus about it, but as he was not himself a beneficiary of the trust, Attendus declined to engage with him. Having failed to get various regulatory and law enforcement agencies to investigate further, Mr Pycraft posted online allegations about Mr Ranger of serious professional and criminal wrongdoing.

In 2018, to avoid defamation proceedings being brought against him, Mr Pycraft agreed to sign the following undertakings:

“1. Not now or in the future to publish any further defamatory statements of the same or similar nature to the posts complained of … .

  1. To immediately delete all publications and posts identified … with any and all similar posts.
  2. Where a post is not under my control due to cached or historic information, to use my best endeavours to contact the organisation with control of the post and require that they assist in its deletion.
  3. To pay the legal costs incurred by Mr Ranger in connection with the defamatory publications to be assessed on an indemnity basis if not agreed if I breach any of the undertakings 1 to 3 above”.

Mr Ranger subsequently issued proceedings against Mr Pycraft, claiming that Mr Pycraft had breached paragraph 1 of the undertakings, by sending a briefing, on 28 November 2018, to a US investigative journalist, Ms Komisar, who had then posted the story on a listserv (emailing list) to which about 200 other investigative journalists subscribed. Mr Ranger also claimed that there were three tweets posted by Mr Pycraft that he had failed to delete in accordance with paragraph 2 of the undertakings.

Mr Ranger sought enforcement via paragraph 4 of the undertakings (reimbursement of costs) and a permanent injunction to enforce the undertakings and restrain further breaches.

The Honourable Mrs Justice Collins Rice DBE noted that the claim was for remedies for breach of contract and was not a defamation action. However, it was about a contract to compromise threatened defamation proceedings. It was not disputed that the signed undertakings constituted a binding legal contract which was enforceable as such.

Applying the usual rules of contract interpretation, Collins Rice J found that Mr Pycraft’s initial email to Ms Komisar set out the gist of his allegations against Mr Ranger in terms that were entirely recognisable from the material previously objected to. Although the edited version Ms Komisar posted was much toned down, allegations about defrauding his family, and actual or attempted misappropriation of trust funds were retained. It was clear that the statements were the same or similar in content to those originally complained of, and defamatory to the same extent.

Looking at the agreement as a whole and considering whether the briefings were “further defamatory statements of the same or similar nature to the posts complained of”, Collins Rice J did not find any ambiguity on the face of it as, essentially, what Mr Pycraft had agreed to was not to publish defamatory statements. The scope of the undertaking was explained by reference to the previous complaints. It was the content of the (previous) posts that was complained of, not the format, and there was no reason to read in any limitation of format.

Had there been any ambiguity, Rice Collins J said, it would be answered by ordinary principles of interpretation. It was inconsistent with business common sense to read limitations of form into a defamation settlement that did not specify any. No reasonable person would think, reading the undertakings, that the parties had agreed that Mr Pycraft was free to publish his allegations so long as he did not use his own website and avoided social media. Therefore, the postings fell squarely within the ambit of the undertakings by reference to their content, and there was no sustainable basis for excluding them.

As for whether the postings were “published”, there was no indication that Mr Pycraft had sent his email to anyone other than Ms Komisar in the first instance, but it was also clear that she was acting at his behest in posting it on the journalists’ listserv. Both actions undoubtedly counted as “publishing” by Mr Pycraft as that term is understood in defamation law.

However, Mr Pycraft argued that it was neither accurate nor fair that “publish” be given its technical defamation meaning. Notwithstanding that they compromised a threatened defamation action, the undertakings were not professionally negotiated: they were delivered as an ultimatum and Mr Pycraft, a layman, unwilling to submit at that point to a defamation trial, signed immediately. He naturally understood “publish” to mean to make public or to place into the public domain.

Collins Rice J found that there was no good reason to restrict the meaning of “publish” as suggested by Mr Pycraft, since defamation law entirely defined the balance of legal risk agreed between the parties. To depart from the technical meaning would increase, not reduce, the uncertainty of the agreement, she said. Even if Mr Pycraft’s email to Ms Komisar had not counted as “publishing”, then her action on his behalf in posting it to a listserv accessible to 200 journalists still had to be considered. It was not sustainable from a business common sense point of view to read the undertaking as restraining only wholly unconfined publication to the entire world. In Collins Rice J’s view, “a point of sufficiency” was reached where material was made available to 200 investigative journalists on an unconditional basis.

As for deletion of the tweets, Mr Ranger said that Mr Pycraft had simply failed to delete the tweets, whereas Mr Pycraft argued that he did delete them, but they re-emerged later on another Twitter page.

On the evidence, Rice Collins J found that the balance of probability came down in favour of concluding that Mr Pycraft had failed to spot that the tweets had not been deleted. In any event, the undertakings placed the burden on Mr Pycraft to check for the persistence or re-emergence of deleted material and to act on anything discoverable. Accordingly, there was probably a breach of the undertakings.

Therefore, Collins Rice J found that Mr Pycraft had breached paragraphs 1 and 2 of the undertakings.

As for the remedies available to Mr Ranger, Collins Rice J noted that she was being asked for a permanent restraint of the kind that would be sought at the end of a defamation trial. However, the underlying cause of action in this case was for breach of contract, not for defamation. In any event, this was not an application based on a final judicial determination of the merits of the parties’ respective positions and injunctive relief was a discretionary remedy.

Considering whether there was a real and substantial risk of continuing or further publication in the future if no injunction were granted, Rice Collins J found that the undertakings had marked a clear change in Mr Pycraft’s conduct and he had taken them seriously. The two breaches were the only examples discovered since, and were not directly related to each other. Further, Mr Pycraft had been seeking help with pursuing legitimate lines of inquiry and redress. The three stray tweets were more likely explained by oversight than as a deliberate part of a continuing campaign. Mr Pycraft appeared to have ensured removal of the material and did not appear to be in continuing breach of his undertakings. Mr Ranger did not complain that any defamatory material continued to be published.

Accordingly, Collins Rice J was not persuaded that the risk of future breach was sufficiently high to indicate the granting of injunctive relief at this stage. (Lance Dorian Ranger v Charles Pycraft [2021] EWHC 502 (QB) (8 March 2021) — to read the judgment in full, click here).