Benjamin James Smith & Anor v Richard Copestake

For interim relief affecting freedom of expression, the court must apply the statutory threshold in Human Rights Act 1998, section 12(3): publication should be restrained before trial only where the claimant is more likely than not to establish that it should not be allowed, subject to the flexibility recognised in Cream Holdings Ltd v Banerjee [2005] AC 253. Labelling a claim as harassment does not avoid that threshold where the relief sought would restrict publication. Harassment based on publications requires more than reputational upset; additional elements such as oppression, persistence or unpleasantness must be shown distinctly from the content complained of. Mandatory relief for contractual or interference claims remains subject to the American Cyanamid Co. v. Ethicon Limited [1975] AC 396 principles, including adequacy of damages and the balance of convenience.

The claimants, Benjamin James Smith and Rise Capital Holdings Ltd, sought an interim injunction against Richard Copestake in claims for defamation, harassment, misuse of private information, breach of contract, breach of confidence and unlawful interference. The relief sought included removal of a website and LinkedIn posts, closure of WhatsApp groups, and mandatory relief concerning allegedly retained data and intellectual property.

The application followed an earlier unsuccessful application and was heard on notice. The central issues were whether the claimants satisfied the statutory threshold for relief affecting freedom of expression, whether the pleaded conduct was sufficiently likely to amount to harassment or misuse of private information, and whether mandatory relief was justified under the ordinary interim-injunction principles.

1. Application dismissed. The court refused all interim injunctive relief.
2. Relief sought in relation to the website, LinkedIn posts and WhatsApp groups affected the defendant’s freedom of expression, whatever the primary legal label attached to the claim. The applicable question was whether it was more likely than not that publication should not be allowed under section 12(3) of the Human Rights Act 1998. The flexibility recognised in Cream Holdings Ltd v Banerjee [2005] AC 253 was relevant to the combination of claims.
3. As to harassment, the pleaded conduct principally concerned allegedly defamatory publications and resulting reputational harm. The WhatsApp material was not apparently directed to the first claimant, and the most egregious exchanges were posted by other members. Earlier conduct by other individuals could not establish a pattern of harassment by this defendant. The evidence did not show, at the interim stage, additional elements of oppression, persistence or unpleasantness distinct from the content of the publications. The threshold was therefore not met. The approach in Merlin Entertainments PLC v Cave [2014] EWHC 3036 (QB); [2015] EMLR 3 did not assist on the facts.
4. The restriction on libel injunctions stated in Bonnard v Perryman (1891) 2 Ch 269 reinforced the difficulty of granting relief where truth was asserted. The claimants also failed to establish that the information relied on for misuse of private information or breach of confidence was sufficiently shown to be private or outside the public domain.
5. Any injunction requiring removal of the website or substantial parts of it, removal of LinkedIn posts or closure of WhatsApp groups would in any event have been wholly disproportionate.
6. For the contractual claim, there was a serious question to be tried concerning alleged retention of data and the ALEX system, but damages appeared adequate. For unlawful interference, a serious issue was not established and damages would in any event be a suitable remedy. The evidence linking the defendant’s conduct to alleged losses was tenuous, and the balance of convenience favoured refusing relief.
7. The court made no determination on the defendant’s suggestion that the proceedings might be a SLAPP under section 195 of the Economic Crime and Corporate Transparency Act 2023, because no formal application had been made.