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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Al-KO Kober Ltd & Anor v Balvinder Sambhi (t/a Torquebars) [2017] EWHC 2474 (QB) (06 October 2017) URL: http://www.bailii.org/ew/cases/EWHC/QB/2017/2474.html Cite as: [2017] EWHC 2474 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) AL-KO KOBER LIMITED (2) MR PAUL JONES |
Claimants |
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- and |
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BALVINDER SAMBHI T/AS TORQUEBARS |
Defendant |
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The Defendant was present in court and represented himself
Hearing date: 22 September 2017
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Crown Copyright ©
Mrs Justice Whipple:
Introduction
Approach
Background
Videos
Malicious Falsehood
Elements
1) That the Defendant has published words which are false;
2) That those words refer to the Claimant or his property or his business;
3) That those words were published maliciously;
4) That special damage has followed as a direct and natural result of their publication.
"(1) In an action for malicious falsehood, it shall not be necessary to prove special damage
(a) if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff ."
To establish "calculated damage", a party must show that the statement of which complaint is made is calculated, ie, more likely than not, to cause him pecuniary damage: see Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]. In the ordinary course of things, derogatory statements about a commercial product are likely to put off some potential customers, with a consequent loss of revenue from sales and increases in costs, see Tesla [37]. Mr Sambhi does not suggest that the effect of his statements would not be to put off some potential customers; indeed, his avowed specific purpose in publishing these statements is to do precisely that. It is self-evidently likely that the Company has suffered or will suffer pecuniary loss by way of lost sales as a result of the publication of the videos. These elements are therefore established.
False Statements
1) That the AKS stabilisers are inherently unsafe products which have caused the caravan accidents depicted in the videos.
2) That the AKS stabiliser(s) is a "killer" and that the Company is knowingly risking the lives of the public by selling it;
3) That the Company is a fraudulent business and is conning or scamming its customers;
4) That Mr Jones has been exposed as having told lies about the stabiliser which the Company has then instructed solicitors to try to hush up.
Malice
"Honest belief in an unfounded claim is not malice. But the nature of the unfounded claim may be evidence that there was not an honest belief in it. It may be so unfounded that the particular fact that is put forward may be evidence that it is not honestly believed" (my emphasis).
1) That Mr Sambhi's campaign against the Company plainly started as an attempt to promote his own product, the Torquebar, in the eyes of consumers. That is self-evident from some of the earlier videos where he showed pictures of caravan crashes along with text such as "AL KO = ACCIDENTS" and then switched to footage of the Torquebar with accompanying text such as "TRUST TORQUEBARS". His motivation, at least at the outset, was clearly commercial, and for personal gain: to promote his own product. It was not engendered by any sense of public spirit.
2) He claims in one of his videos that his own product, the Torquebar, is "THE WORLD'S FIRST ONLY 100% ANTI-SNAKING TOW BAR STABILISER". This is a ridiculous, and obviously false claim for a product which has not yet been tested for regulatory approval, and remains in its development phase.
3) When he telephoned Mr Jones on 22 May 2017, he recorded the conversation (and subsequently used the Recording, cut and edited, repeatedly in his videos). He did not ask Mr Jones for permission to do that. That was underhand.
4) Mr Sambhi has asserted on numerous occasions (including to me during the hearing, and at least once in correspondence) that all of the caravan crashes shown on the videos were caused by AKS stabilisers. That is manifestly not true. Some of the crash sequences have no footage showing any stabiliser fitted at all, let alone an AKS stabiliser. Even in those where an AKS stabiliser is visible, it is unknown why the crash occurred (it could have been for any one of a number of reasons). By juxtaposing the Company's name with footage of these crashes, Mr Sambhi is deliberately misleading viewers into connecting the two.
5) When the Company (by its solicitors) wrote to him to ask him specifically not to use the word "killer" on his videos, he replied on 12 June 2016 explaining that killer, in this context, simply meant highly effective or superior and went on to say that "Torquebars is highly effective and superior to Al Ko Stabiliser Thus Al Ko Killer! Winner" Beater" Victor! Defeator!" [sic]. This was an absurd explanation. The use of the word "killer" in the videos, as Mr Sambhi now accepts, meant and was intended to mean that the AKS stabiliser was so unsafe as to be a risk to human life.
"As to malice I equally have no doubt from the evidence, including the transcript of the tape-recording of the "interview" with Mr. Kaye in his hospital room which we have read, that it was quite apparent to the reporter and photographer from Sunday Sport that Mr. Kaye was in no condition to give any informed consent to their interviewing or photographing him. Moreover, even if the journalists had been in any doubt about Mr. Kaye's fitness to give his consent, Mr. Robertson could not have entertained any such doubt after he read the affidavit sworn on behalf of Mr. Kaye in these proceedings. Any subsequent publication of the falsehood would therefore inevitably be malicious." (My emphasis.)
Conclusion on Malicious Falsehood
Data Protection Act
Legal Framework
"(1) Subject to subsection 2 an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject, on the ground that, for specified reasons
(a) the processing of those data or their processing for that purpose or in that manner is causing or is likely to cause substantial damage or substantial distress to him or to another, and
(b) that damage or distress is or would be unwarranted."
Facts
"Paul Jones PD. Paul Jones is in 2 know videos interviews with Practical TV. These are in public domain and not in private domain and therefore "Open Market". Paul Jones and Wright Hassall now can not say the opposite and to your own convenience when this advocates your position."
Thus, it appeared that the Defendant was resisting the data subject notice on the basis that (he said) the data in question was already in the public domain.
Conclusion
Summary
Annex 1
Court viewing number | Number in original schedule prepared by Claimants | Headline | Publication and Views | Outline of Content |
1. | 4 | Torquebars AKSO STABILISER FAIL! AKSO DOES NOT WANT YOU TO SEE THIS! | 00:18 published on May 7, 2017 12 views |
Recovery work on caravan smashed across motorway. |
2. | 32 | THE REAL AL KO STABILISER SCAM!" | 02:19 Published on May 16, 2017 3999 views |
A series of caravan accidents. AL KO REAL TRUTH! AL KO DOES NOT WORK AL KO = ACCIDENTS AL KO = RISKING LIVES THINK AL KO! THINK ACCIDENTS! DON'T TRUST AL KO! Car with caravan on verge AL KO SAFETY! TRUST TORQUEBARS! THE WORLD'S FIRST ONLY 100% ANTI-SNAKING TOW BAR STABILISER VISIT WWW.TORQUEBARS.COM WWW.FACEBOOK.COM/TORQUEBARS WWW.YOUTUBE.COM/TORQUEBARS Thank you |
3. | 33 | AL-KO UK CONCEDES AKSO STABILISERS DO NOT WORK! | 06:55 Published on May 26,2017 2021 views |
A series of caravan accidents, images of C1's product, and D's own product in use. THE GREAT AKSO STABILISER SCAM PAUL JONES AL KO UK KOBER LTD AKSO STABILISERS DO NOT PREVENT ACCIDENTS [Extracts from Recording] PAUL JONES CONFIRMS AKSO STABILISERS DOES NOT PREVENT SNAKING OR STOP SNAKING! PAUL JONES QUOTES "NOT THE COST OF THE STABILISER"! 30 TIMES THE COST BUT ONLY 10% SAFER. TORQUEBARS 100% ANTI SNAKING TOWBAR 100% NO SNAKING AT 100 KPH!! TORQUEBARS 100% ANTI SNAKING TOWBAR 100% NO SNAKING AT 100 KPH!! PAUL JONES AKSO UK WILL NOT RISK HIS LIFE! BUT YOU ARE RISKING YOUR LIVES! PAUL JONES AKSO UK WILL NOT RISK HIS LIFE! BUT YOU ARE RISKING YOUR LIVES! AL KO STABILISERS DO NOT PREVENT SNAKING! SNAKING = ACCIDENTS AND CRASHES! CONFRIMATION BY PAUL JONES AL KO KOBER UK LTD WWW.TORQUEBARS.COM WWW.YOUTUBE.COM TORQUEBARS |
4. | 34. | PAUL JONES AL KO UK INTERVIEW TRAILER | 01:23 Published on May 26, 2017 71 views |
A series of caravan accidents. THE GREAT AKSO STABILISER SCAM PAUL JONES AL KO UK KOBER LTD AKSO STABILISERS DO NOT PREVENT ACCIDENTS [Extracts from Recording] PAUL JONES CONFIRMS AKSO STABILISERS DO NOT PREVENT SNAKING OR STOP SNAKING! AL KO STABILISERS DO NOT PREVENT SNAKING! SNAKING = ACCIDENTS AND CRASHES! CONFRIMATION BY PAUL JONES AL KO KOBER UK LTD WWW.TORQUEBARS.COM WWW.YOUTUBE.COM TORQUEBARS |
5. | 57 | AL-KO FRAUD KILLER & DANIEL THE BABOON WRIGHT HASSAL! | 02:19 Published on Aug 14, 2017 54 views |
A series of caravan accidents, and the Trade Show Videos. Images of monkey, and of Cs' solicitor. Music: "Every time you lie" plays throughout. AL-KO UK CONFIRMS MIS-SELLING FRAUD [Extracts from Recording] |
6. | 84 | AKSO CARAVAN AKS STABILISER KILLER! | 03:04 Published on Sep 3, 2017 14 views |
Images of caravan accidents AL-KO AKS KILLER! AKSO KILLER!!! AKSO KILLER!!! AKSO KILLER!!! AKSO KILLER!!! AKSO KILLER!!! AKSO KILLER!!! AKSO KILLER!!! AKSO MISS-FRAUD SELLING |
7. | 89 | AL KO AKS FRAUD KILLER CARAVAN ACCIDENTS PAUL PINOCCHIO JONES | 01:52 Published on Sep 8, 2017 24 views |
Images of PJ, images of Pinocchio, the Trade Show videos. AL-KO PAUL PINOCCHIO JONES EASY MONEY FOR SELLING AL-KO CRAP! AL-KO STABILISERS DO NOT WORK! SEE MY NOSE WHILE SELLING YOU CRAP! FUCK YOU VERY MUCH!! WATCH MY NOSE!!!!!!!! [Extracts from Video] DID I JUST SAY AL-KO HAS NEVER MADE ANY STATEMENTS AL-KO STABILISERS DO NOT PREVENT SNAKING??? [Extracts from Recording] I JUST LIED TO YOU!! YES I LIED! FUCK YOU VERY MUCH!!! OH CRAP! I DONE A BOO BOO! I NEED TO CALL BABOON TO HELP ME!! DID I JUST SAY AL-KO HAS NEVER MADE ANY STATEMENTS AL-KO STABILISERS DO NOT PREVENT SNAKING??? DID I JUST SAY AL-KO HAS NEVER MADE ANY STATEMENTS AL-KO STABILISERS DO NOT PREVENT SNAKING??? I LOVE LYING TO YOU ALL!! SEE MY NOSE GROW!! CALL THE BLUE FAIRY!!!!! AL-KO PAUL PINOCCHIO JONES PAUL'S LYING NOSE PAUL PINOCCHIO JONES |