Litigation Summary
A summary of each action will be published in this section of the website once the papers have been received by the relevant defendants (Note: certain attachments may not currently be visible on mobile devices).
18th May 2017 - Court Order commentary
A full summary of the Judgment given on Monday will be available for viewing in the next few days. However, in the meantime, the following extracts from that summary may help readers to understand
how damaging the campaign against Worthington has been and why we were not prepared to allow such a campaign to continue against Newco
"Injunctive relief restraining publication pending trial has ordinarily been “rare” due to the common law rule in Bonnard v Perryman (1891) that a Claimant must show
that any Defence was ultimately bound to fail before such an application could be granted. This approach has long been based upon the reluctance of the Courts both before and after the Human Rights
Act 1998 to interfere with individual rights to freedom of expression before such time as the Court could hear the evidence with the benefit of cross-examination. The background to this reasoning is
set out in William Coulson and Sons v James Coulson and Co (1887) 3 TLR 846 where Lord Coleridge said:
“To justify the Court in granting an interim injunction it must come to a decision upon the question of libel or no libel before the jury decided whether it was a libel or not. Therefore, the
jurisdiction was of a delicate nature. It ought only to be exercised in the clearest cases, where any jury would say that the matter complained of was libellous, and where, if the jury did not so
find, the Court would set aside the verdict as unreasonable. The Court must also be satisfied that in all probability the alleged libel was untrue, and if written on a privileged occasion that there
was malice on the part of the defendant. It followed from those three rules that the Court could only on the rarest occasions exercise the jurisdiction."
In addition to this general rule, section 12(3) of the Human Rights Act 1998 modifies the usual American Cyanamidtest by supplanting the requirement that the application show a “serious issue to be
tried” (traditionally a low threshold) with the more stringent requirement that the applicant show they are “likely to succeed” at trial (Cream Holdings v Banerjee).
Firstly, the Court found "no difficulty" in holding that the Claimants were likely to succeed at trial on the evidence before it. Although the intervention of the Court was “rare” in these circumstances, the power to make such an Order existed and could be utilised. Injunctive relief was, exceptionally, appropriate until further order/trial. The Court found that the publication was clearly libellous and capable of causing serious harm. In particular, the learned Judge noted that the publication was likely to "unfairly undermine public trust and confidence in the Claimants and their businesses". Even though the publication had been removed prior to the hearing, the Court found that there still remained a real possibility that the website may be re-uploaded after the application hearing.
The Claimants made detailed submissions on the falsity of the statements made in the publication. Whilst ..no formal defence had been filed.. the Court was still minded to consider the allegations made and the evidence submitted in response. In considering the totality of the material before it (which included some 11 months-worth of other publications which effectively set out the Defendant’s basis for making allegations of misfeasance) the Court arrived at the conclusion that the Claimants were likely to succeed at trial in showing the words complained of to be libellous and untrue.
This is one of the first instances in which the Queen’s Bench Division has granted interim relief in a libel action where no reliance was placed on privacy/confidence or the Protection from Harassment Act. Whilst the granting of relief was "exceptional" (per Greene v Associated Newspapers [2004]), the Court found that this was a case which merited the interference of the Court before final determination.
As such, injunctive relief was appropriate so as to limit the potential for harm caused by the publication.
The judgment also shows that whilst the absence of any Defendant is likely to increase chances of success, the burden was still on the Claimant to show that they were likely to succeed at trial and that any Defence would be bound to fail. It was not enough to simply submit that the Defendant bore the burden of proving the statements made to be true and the Claimant was still bound to put forward a positive case."
15th May 2017 – Court Order
I am pleased to confirm that at the High Court hearing in London this morning the Honourable Mr Justice King granted an injunction in the terms requested by the Claimants (Allan Biggar, Aidan Earley, Equity Media Partners Ltd, Greenland Mining Management Ltd) and made the following order. That:
- The Defendant refrain from re-uploading the webpage hosted at https://nunaminerals.wordpress.com/
- The Defendant refrain from making any publication that states that the Claimants are involved in fraud or criminality, or that their launch of Newco is fraudulent except other than by a report to a competent governmental authority/regulatory body and in any event without publication of the same on the Internet;
- Costs reserved
A full copy of the Court Order is attached below.
Any breach of this Order makes those in breach (including those who assist in its breach) liable to imprisonment or fined or to have their assets seized.
I will be commenting on this case in more detail before Friday, but I can confirm that this Order affords to Newco the necessary protection to enable its launch to proceed as planned, and for long-suffering shareholders of Worthington to finally benefit from the acquisition program that had originally been planned for Worthington.
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27th February 2017 - First Claim Launched
As promised, the first of multiple legal claims against Mr Winnifrith has been launched today, a day earlier than planned. The claim form and particulars of claim can be seen below (at the request of Mr Winnifrith his address on the claim form has been redacted). In the event that the Court does award me damages I will donate the entire sum towards the costs of the much bigger, multi million pound, actions being brought against Mr Winnifrith (and others) by the Injured Parties mentioned in the Tortious Interference Report on this website.
This first action is for a relatively modest sum and, inter alia, is designed to obtain a ruling from the Court that Mr Winnifrith is a liar. This will be of some significance in the other actions.
This claim, should it be successful, will present Mr Winnifrith with something of a dilemma. Does he (a) raid that pot of gold at the end of the rainbow (see my post of 6th January 2017) and avoid becoming bankrupt, but end up contributing to the costs of the major actions against him, or does he (b) stick to his commitment that his creditors "won't get a cent", only to find that his trustee will be paid by me to investigate all his transactions for the previous six years? You can see the problem.
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24th February 2017 -
litigation update
Proceedings are going to be issued against Mr Winnifrith on Tuesday 28th February. Once Mr
Winnifrith has acknowledged service, we will be applying for an on notice interim injunction. We will also be applying for summary judgement. The only question is whether we wait to see Mr
Winnifrith's attempt at a defence, or apply without seeing it - as there is zero prospect of Mr Winnifrith being able to deny that he has told manifest lies.
Separately "Sweet Karolina" has elected not to provide his or her full name and address. Should that continue to be the case then we will be applying for substituted service.
18th February
2017
Further to my post of 13th February there are two categories of posters that are currently of
particular interest: those who may have been involved in the concerted campaign of Tortious Interference referred to in the Report on this website, and those currently claiming that Newco intends to
be involved in fraud and who may also be associated with Mr Winnifrith. For now I would like to know the identity/ies of the second category, as action against the first will begin later, once we
have the first Judgement against Mr Winnifrith. Mr Winnifrith has told my lawyer that he is back in the country next week and the first proceedings will be issued shortly after he returns. I will
update readers accordingly.
As regards the ADVFN posters, for now, I am only interested in discovering the identity of Sweet Karolina and would encourage the poster to send contact details as previously suggested.
13th February
2017
Further to my post on Friday, I have just finished a 90 minute discussion with my legal
counsel and I have decided to apply for summary judgment in relation to specific libels that Mr Winnifrith has written about me (and for which Mr Winnifrith has no realistic prospect of a defence).
The summary judgement application will be in relation to liability with the quantum of damages to be determined at trial if not agreed. Separately I have also decided to seek an interim injunction
relating to Mr Winnifrith's continuing breach of our agreement. I am awaiting advice as to whether or not it is viable to roll both applications into one so that the summary judgement in relation to
libel and the injunction application can be heard at the same time. If it can, then it would mean that there is the prospect of achieving the first Judgment (in terms of liability) against Mr
Winnifrith in a matter of days.
Separately, in relation to ADVFN, as we have not received details of the underlying posters the subject of my complaints, we will be applying for Norwich Pharmacal orders concerning the worst offenders. A list of these posters will be published on this website later this week, so that they can have the opportunity to self identify via the "Contact Us" section of the website should they so wish.
If they do not choose to do so and the Norwich Pharmacal orders do not result in providing sufficient information to identify who the posters are, then we will have demonstrated that we have taken all reasonable steps to identify the offenders.
We will then issue proceedings against these particular individuals using their aliases in order to obtain judgement. If the defendants still choose not to attend court or identify themselves, then we will seek judgement by default. Having obtained judgement by default, we will then use exceptional measures to identify who these people are in order to enforce judgement. I would therefore recommend that the people concerned provide as much information about their identity as possible during this next stage of the process.
The purpose of these actions is not to be vindictive or to stifle honest debate, it is designed to ensure that anybody alleging fraud, or intentions to commit fraud, are held to account so that these highly damaging falsehoods are not allowed to go unchecked. With hindsight, it was a mistake to rely on Mr Winnifrith's word that he would not make any further allegations of fraud, and that his original claims would disappear from the internet, when I entered into my drop hands agreement with him. Had I realised that he would be so untrustworthy, I would have continued with the original claim. That mistake will not happen again.
10th February
2017
A litigation update will be posted on Monday. My barrister has identified an additional cause
of action relating to the Rehabilitation of Offenders Act. Most fair minded readers will probably agree that Mr Winnifrith's reference to my previous long spent conviction (for an offence not
involving dishonesty) has clearly been malicious, and therefore results in him having no defence in law. Whether or not that forms part of a separate action, or is included in the action relating to
his publishing of stolen emails, is currently under consideration. In considering which causes of action to pursue the aim is to ensure that the cases achieve my stated objectives in the least amount
of time, and result in the earliest possible Court Appearance for Mr Winnifrith.
Separately I have noticed that various Bulletin Board posters have been claiming that the Newco is "intending" to be involved in fraud. There can be no defence in law for making claims of this kind either, particular as the evidence demonstrates that the reverse is the truth. An update on the ADVFN position will also be provided on Monday.
30th January 2017 - Litigation update
In March 2015 I agreed with Mr Winnifrith not to pursue my legal action against him, in relation to his publishing of stolen emails, subject to various conditions - in particular, that he would no longer use words like "fraud" when referring to Worthington and those connected with Worthington. These conditions are outlined in the letter from Keystone solicitors to Mr Winnifrith dated 10th January 2017 (which can be seen in the Litigation Summary section of this website) as well as in the Winnifrith Agreement section.
I received Mr Winnifrith's response on 24th January 2017 and this can be seen here (http://www.shareprophets.com/views/26740/tom-winnifrith-writes-to-aidan-earley-his-dumb-lawyer-see-you-in-court-bitchez)
The purpose of the Keystone letter was to establish what elements of the agreement Mr Winnifrith felt he had complied with and which he hadn't. Mr Winnifrith confirms that there was an agreement and that he is in breach of at least part of that agreement; how much of the agreement will be for the Court to decide. But, importantly, his reply acknowledges that he is in fact in breach of the agreement and this now opens the way for us (being my legal team and me) to resurrect the original claim in relation to Mr Winnifrith's illegal publishing of the stolen emails. Had Mr Winnifrith been in full compliance with the agreement, reinstating that action would have been more difficult. The Keystone letter has therefore achieved its intended aim, whilst also laying the groundwork for at least one other potential action.
Subject to any further advice, I intend to issue proceedings in relation to Mr Winnifrith's illegal publishing of stolen emails within the next ten days. That may or may not involve an "on notice" injunction application; that will depend on Mr Winnifrith's behaviour during the next ten days.
Separately, an entirely separate case is expected to be launched against Mr Winnifrith at around the same time. The advice so far is that Mr Winnifrith has no realistic prospect of a defence to that action. Therefore, if he does not comply with the terms of that particular letter before action, in order to expedite matters, an application is expected to be made for summary judgement.
Together these will constitute the first of the multiple actions being brought against Mr Winnifrith and ShareProphets.
10th January 2017
The first action against Mr Winnfrith relates to, inter alia, breach of contract. A copy of the letter sent to him today is attached below. It is the first of at least four separate actions being brought against him.
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6th January 2017 - Litigation Update
We don't appear to have heard from ADVFN to date. Andrew Irvine, a litigator with 30 years experience who is handling the first action against Winnifrith, is moving from LSGA to Keystone on Monday, so it has been decided to issue the first action against Mr Winnifrith on Tuesday, whether or not ADVFN reply by then. It seems pointless to start action with one firm of lawyers and then have to immediately move it to another. As regards ADVFN, if we don't hear from them, the next stage would be to apply to court for a Norwich Pharmacal Order.
28th December 2016
The first letter before claim is a notice of complaint and take down letter under section 5 of the Defamation Act 2013 addressed to ADVFN.
The purpose of this letter is to establish the identities of certain parties posting defamatory comments about the Injured Parties on the ADVFN website, in order to establish whether they are also part of the campaign of tortious interference referred to in the Tortious Interference Report. In other words, there are two distinct categories: those who are independently posting defamatory statements and those who are part of a more widespread organised campaign.
Again, for the sake of transparency, we are taking reasonable steps to identify who the anonymous posters are. Once we have gone through this procedure, to the extent that the posters have not voluntarily identified themselves, we will seek an order from the Court requiring the disclosure of whatever information ADVFN hold for each poster. In the event that that information is insufficient to identify who the posters are, we intend to commence proceedings, by way of substituted service, against the individuals using their aliases. In the event that these parties continue to fail to disclose who they are, we will then be able to obtain default judgement against them. Having obtained judgement, we will then take exceptional measures (rather than reasonable measures), to identify and enforce judgement against the currently unknown individuals. It is an unfortunate mistake that many anonymous parties make to think that, whilst they remain anonymous, they cannot be pursued through the courts. That is no longer the case, if it ever was, and in fact makes obtaining judgement against them potentially a quicker process. It is past time that anonymous posting of defamatory and malicious comment was cleansed from stock market debate. This is a small step in that direction.
The first letters before action against Tom Winnifrith and ShareProphets will be issued in the first week of January, after we have heard back from ADVFN.
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