Franklin William Rzucek v Alan Vinnicombe

In August 2018 Shanann Watts, the sister of Franklin Rzucek (“the Claimant”), was brutally murdered along with her two young daughters in Colorado, USA. The murder was perpetrated by Christopher Watts, who was Shanann’s husband and the girls’ father. The killings attracted widespread interest in the media and online around the world, including in the UK, and spawned theories speculating on the details of the murder, Mr Watts’ possible motives and whether he acted alone.

Alan Vinnicombe (“the Defendant”) is a UK citizen living in the UK. Until 2023 he operated a YouTube channel, named “Armchair Detective Blue”, in which he discussed what he described as “True Crime & other Case Mysteries”. The channel had more than 79,000 subscribers. On the channel the Defendant, who had no previous connection to the Claimant or his family, repeatedly posted videos discussing the murder of the Claimant’s sister and the activities of his family. The Claimant considered the videos to be defamatory and to constitute harassment. On 26 January 2023 he issued a claim pursuant to the Protection from Harassment Act 1997 (“PHA 1997”) and for defamation against the Defendant. On 26 February 2025, Susie Alegre, sitting as a Deputy Judge of the High Court, struck out the Defendant’s defence pursuant to CPR 3.4(2), and entered judgment for the Claimant. The case came before me to determine what, if any, remedies the Claimant was entitled to, as well as to determine an application for relief from sanction in relation to the late admission of a witness statement from the Claimant which I explain below.

I am grateful for the measured, clear and helpful way in which Mr de Wilde put his submissions on behalf of the Claimant, and for acting pro bono in these proceedings. I am also grateful to Mr Vinnicombe who, despite representing himself, was able to clearly and concisely explain his case. The following is my judgment.

The background to this case is the tragic murder of the Claimant’s sister, Shanann Watts, on 13 August 2018. Shanann was killed, along with her two daughters and her unborn child, by her husband Christopher Watts. After at first attempting to conceal the murders and mislead the police, Mr Watts confessed to the killings and pled guilty on 6 November 2018. He was sentenced to life in prison without parole.

There was extensive media interest in the Watts case. It spawned a TV dramatization and TV documentary, as well as commentary online, discussing, and speculating about, details of the murder. That included by the Defendant on his YouTube channel where he published at least 180 videos on the Watts case between 2018 and 2023.

The Claimant lived in North Carolina. His case on harassment concerns the Defendant’s alleged conduct from September 2020 to March 2023, and relates to videos he published to his subscribers about the Watts case. As set out further below, in the videos the Defendant speculated about the causes of the Claimant’s nieces’ death, suggested that Mr Watts had not acted alone and that the Claimant and his family did not wish the truth about Shanann and the children’s murders to come out. It is the Claimant’s case that the publication of those videos constitutes unlawful harassment pursuant to PHA 1997.

In August 2021 the Claimant set up a fund-raising page on CrowdJustice (an online fundraising platform designed for legal action) in order to pursue a legal complaint around the online publications concerning his sister’s murder. The Defendant, who believed the legal complaint was directed at him, responded to the fundraising and other matters in a series of videos. The Claimant’s defamation claim focused upon five of those videos posted between November 2021 and August 2022 on the Defendant’s YouTube channel. They were, according to the Claimant, viewed by tens of thousands of the Defendant’s subscribers. I will say more about the videos below, but essentially the Claimant’s case is that the videos suggested he was dishonestly raising funds from the public for legal proceedings, and that he was engaged in harassing and other unlawful conduct against the Defendant. It is the Claimant’s case that the videos contained defamatory statements which caused, or were likely to cause, serious harm to his reputation.

In September 2023, following complaints to Google and YouTube by the Claimant’s solicitors, the Defendant’s YouTube channel was taken down.

On 26 January 2023 the Claimant issued the present proceedings and on 10 March 2023 served Particulars of Claim.

The Defendant sought on a number of occasions to file a defence. His first defence was dated 3 April 2023, and an amended defence was served dated 8 August 2023. Pursuant to CPR r 16.5 a defence must deal with “every allegation in the Particulars of Claim” stating whether they are denied, admitted or are matters which the claimant is required to prove. CPR r 16.5 also requires a defendant who denies an allegation to provide their reasons for doing so, and, if they intend to put forward a different version of events, to state their own version. Practice Direction 53B applies to media and communication claims and covers the present proceedings. It provides that if a defendant to a defamation claim wishes to argue a statement is substantially true, they must specify the imputation they contend is substantially true and the matters on which they will rely in support of that contention.

The Claimant considered that the defences submitted by the Defendant were defective and did not comply with the requirements of CPR r 16.5 and Practice Direction 53B. This was raised with the Defendant in correspondence. When the matter was not resolved, the Claimant applied for an Unless Order. Master Gidden accepted the defence was defective, and on 13 December 2023 made an Order providing that unless the Defendant filed and served a defence which complied with the relevant CPR provisions and Practice Direction by 29 January 2024 his defence would be struck out. The Defendant filed a further defence on 26 January 2024. The Court, of its own motion, listed a hearing on 19 April 2024. At the hearing, Master Gidden found that the defence remained defective and the Defendant had thus failed to comply with the terms of the Unless Order. He gave the Defendant what he described as “one final opportunity to comply”. A further Unless Order was made, dated 8 May 2024, providing that the Defendant had until 17 May 2024 to file a compliant defence. On 15 May 2024 the Defendant provided a re-re-amended defence and a counterclaim alleging that it had been he that was a victim of the Claimant’s harassment and not the other way round. The Claimant considered that the defence still did not comply with CPR r 16.5 and Practice Direction 53B, and on 31 May 2024 applied to strike out the defence as well as the counterclaim.

The strike-out application was heard before Susie Alegre, sitting as a Deputy Judge of the High Court, on 13 February 2025. On 26 February 2025 she struck out the Defendant’s defence and counter-claim pursuant to CPR 3.4(2) and entered judgment for the Claimant. She also refused an application for security for costs the Defendant had made. By an order sealed on 1 May 2025, Ms Alegre directed the parties to contact the Court to fix a remedies hearing. She ordered the parties to serve signed statements of any witnesses on which they intended to rely by 27 May 2025 and stated that oral evidence would not be permitted from any witness whose statement was not served in accordance with the order except with the permission of the court.

The remedies hearing was fixed for 24 July 2025. On 28 March 2025, the Defendant filed an application for permission to appeal to the Court of Appeal against Ms Alegre’s order. On 17 July 2025 Nicklin J adjourned the remedies hearing, with the agreement of the parties, given the then pending application for permission to appeal. In his order Nicklin J also noted that the Claimant had indicated he wished to rely on witness evidence at the remedies hearing. He noted that that was required to be served by 27 May 2025, and that the Claimant would require relief from sanction to be able to rely on any witness evidence.

On 6 August 2025 the Claimant’s solicitors served a witness statement from the Claimant in relation to remedy. They also applied for relief from sanction in relation to the late service of the statement.

On 10 March 2026 Warby LJ refused the Defendant’s application for permission to appeal to the Court of Appeal. There was therefore no basis for further delay of the remedies hearing and on 25 March 2026 it came before me along with the Claimant’s application for relief from sanction. The Claimant was represented by Mr de Wilde who made submissions on his behalf. The Defendant represented himself. Both the Claimant and Defendant gave oral evidence, and the Defendant cross-examined the Claimant.

During the course of the hearing, it became apparent that the Defendant does not accept the Claimant’s underlying case against him, and that he considers a number of his statements that formed the basis of the Claimant’s defamation claim to be substantially true. He also maintained that he has been the victim of harassment by the Claimant, and not the other way round. On 30 March 2026, after the hearing before me, the Defendant submitted further submissions and evidence. That too sought, in part, to challenge the merits of the Claimant’s claim for harassment and defamation. As set out below, that is not open to the Defendant. His defence and counter claim have been struck out and judgment entered against him. It is not open to the Defendant to now seek to litigate matters that go to his liability for harassment and defamation. I did, however, accept the late evidence and submission. The Claimant indicated that he did not object to the material being placed before me, and I do not consider that its admission prejudices the Claimant.

I heard submissions on the Claimant’s application for relief from sanction at the outset of the hearing. Following argument, I indicated that I would grant the application and gave brief reasons. I indicated I would expand upon the reasons in my written judgment.

CPR 32.10 provides:

CPR 3.9 provides in relation to relief from sanction:

There was no dispute before me as to the principles governing an application for relief from sanction. They were summarised by the Court of Appeal in Denton v TH White Ltd [2014] EWCA Civ 906; [2014] 1 WLR 3296 at paragraph 24:

In relation to the first stage, namely determining the “seriousness and significance” of a failure to comply with a court order, the White Book (2026) summarises the applicable principles at paragraph 3.9.4:

As to the second stage, the court considers the reasons for the default. The Court of Appeal in Denton at paragraph 30 stated that “[i]t would be inappropriate to produce an encyclopaedia of good and bad reasons for a failure to comply with rules, practice directions or court orders.” It noted, however, that in Mitchell v News Group Newspapers [2013] EWCA Civ 1537; [2014] 1 WLR 795 paragraph 41 some examples were given. They included the observation that “mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason.”

As to the third stage, the Court of Appeal in Denton observed at paragraph 31 that “in every case”, as per CPR 3.9, the court will be required to “consider all the circumstances of the case, so as to enable it to deal justly with the application.” At paragraph 35 the Court of Appeal gave the following guidance:

The Claimant accepted that any breach of a court order is serious, but submitted that the breach in the present case was not significant in practical terms and had no impact on the timing or conduct of the remedies hearing. The Defendant received the Claimant’s witness statement by 6 August 2025 when his application for permission to appeal was still pending and the remedies hearing was stayed. The Claimant submitted that there was a good reason for the default as the failure arose from a combination of the delay in the sealing of Ms Alegre’s order, and an oversight during the period by the Claimant’s legal team when they were actively progressing listing of the hearing, managing correspondence with the Defendant and responding to his application for permission to appeal. It was also said that in all of the circumstances it would be just to grant relief from sanction as the consequences of not permitting the Claimant to rely on his witness statement would be disproportionate to an error which had no adverse effects on the litigation.

The Defendant submitted that relief from sanction should not be granted. He submitted that the breach was serious and significant, the explanation provided for it was inadequate, and that the Claimant “was seeking to gain unfair advantage from their own default”.

Applying the three-stage test in Denton, I do not consider that the breach of Ms Alegre’s order was a serious or significant one. As the Claimant noted, all breaches of court orders are, on one level, serious. That will, however, arise in every case in which a court is considering relief from sanction pursuant to CPR 3.9, and the question is whether there is something beyond the mere fact of the breach that means it should be considered “serious and significant”. As noted in Denton, while there are some breaches that will be regarded as serious even if they do not affect the efficient progress of the proceedings, generally speaking the key consideration will be whether or not a breach imperils hearing dates or otherwise disrupts the conduct of litigation or prejudice the other party. In this case, the Claimant’s default did not imperil the hearing date or the progress of the litigation or prejudice the Defendant. As the Claimant noted, the remedies hearing initially listed for July 2025 was adjourned, at the Defendant’s request, while his permission to appeal application was determined. That application was not determined until March 2026. It therefore made no difference that the Claimant’s witness statement was submitted on 6 August 2025 rather than 27 May 2025 and the Defendant was unable to identify any prejudice to him occasioned by the delay. Nor is this a case (such as a failure to pay a court fee) which is regarded as serious even if it is not capable of affecting the efficient progress of the litigation.

As noted in Denton, if a breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third Denton stages. The lack of seriousness or significance is usually sufficient to grant relief from sanction. I therefore deal with the second and third stages only briefly. I do not consider the reason for the delay is a particularly good one. I accept that during the period when the witness statement should have been served the Claimant’s solicitors were focusing on other matters in the litigation, but ultimately the deadline for serving the witness statement was missed because of an oversight. That is not a good basis for a breach of a court order. That said, and turning to the third stage identified in Denton, while the need to enforce compliance with court orders is an important consideration, in all the circumstances I consider it just and proportionate to grant relief from sanction. It would be an obvious prejudice to the Claimant not to admit his evidence, and the six week delay in serving the witness statement did not prejudice the Defendant or in any way affect the efficient conduct of this litigation. I also note that the Defendant’s own statement on remedy was not served until 4 March 2026, and thus more than 10 months late. The Claimant did not insist that the Defendant apply for relief from sanction, but it does seem to me relevant in terms of what is just and proportionate that the Defendant sought to admit his own evidence long after the date required, as well as seeking to admit evidence after the hearing before me was complete.

On that basis I permitted the Claimant (as well as the Defendant) to rely on their witness statements and to give oral evidence notwithstanding that they were submitted after the date set out in Ms Alegre’s order.

PHA 1997 section 1(1) provides:

PHA 1997 section 3 provides:

PHA 1997 section 14 provides that “Sections 1 to 7 [of the Act] extend to England and Wales only”.

The Claimant’s pleaded case on harassment is that the Defendant was involved in “[p]ersistently publishing, to his 78,500 subscribers, and more widely to the world at large, videos on [his YouTube] Channel promoting wholly unfounded conspiracy theories which directly and indirectly implicate the Claimant and his parents in a sinister, ongoing cover-up around the deaths of Shanann and [her] children.” According to the Claimant, the Defendant published at least 184 videos about the Watts case between late 2018 and March 2023. The Claimant’s pleaded case is that in those videos the Defendant, inter alia, “cruelly speculates, in ghoulish terms, as to the manner of the Claimant’s nieces’ death, by suggesting that they were drowned in an oil storage drum by Mr Watts, rather than killed first and then placed in the drum so as to conceal their corpses”; that the Defendant stated that the Claimant was “ignoring those who [along with Mr Watts] are properly to be suspected of the murder of Shanann and [her] children” and “likes money going to him” and that “had Shanann herself seen the evidence, she would not be in the same ‘corner’ as her family”. It is said that the Defendant was involved in “Persistently publishing posts on [his YouTube channel] attacking, vilifying, and mocking the Claimant for his attempts to seek redress in respect of the Defendant's publications”. It was also said that the Defendant had threatened to disseminate a nude photograph of the Claimant by a former partner and published a video of an interview conducted by the Claimant with the Federal Bureau of Investigation which contained the Claimant’s telephone number and led to him receiving an influx of calls and messages.

Mr de Wilde suggested that the Claimant’s case had echoes of Hibbert v Hall [2024] EWHC 2677 (KB). Hibbert involved a victim of the Manchester Arena terror attacks who brought a claim against a defendant who had published false assertions about the attack, claiming it was an elaborate hoax and that individuals, including the claimant, had faked their injuries. Steyn J found that harassment was established and awarded substantial damages. The Claimant suggests that the Defendant in the present case had similarly harassed him by propagating online conspiracy theories about the murder of his sister and suggesting the Claimant and his family were involved in a cover-up.

At the hearing before me, as well as in his post-hearing submissions, the Defendant sought to dispute the allegations of harassment contained in the Claimant’s pleaded case. He denied he had harassed the Claimant, asserting that it was he that was a victim of harassment by the Claimant and his supporters and that he suffered losses because of the Claimant’s conduct including his YouTube channel being taken down. The Defendant disputed the allegations about the dissemination of the nude photograph as well as asserting that the Claimant’s telephone number was already in the public domain.

The Defendant may or may not be right about these assertions. The difficulty for the Defendant is that his defence and counter claim have been struck out and judgment entered in the Claimant’s favour, and he was denied permission to appeal. In those circumstances it is not open to the Defendant to dispute liability on the basis that the allegations in the harassment claim brought against him are not made out or that it was he that was the victim of harassment. I therefore proceed on the basis that the Defendant committed the harassment as alleged in the Claimant’s statement of case.

There is, however, a fundamental difficulty with the Claimant’s PHA 1997 claim. It does not appear that the alleged harassment occurred within the jurisdiction of the Court. It is true that judgment for breach of the PHA 1997 has been entered in the Claimant’s favour. I understand that the issue of jurisdiction was not, however, canvassed before Ms Alegre, and the Claimant very fairly accepted that the matter would need to be determined before any remedy was granted under the PHA 1997, and he helpfully drew my attention to a number of relevant authorities on the issue.

The difficulty for the Claimant is that the prohibition on harassment contained in section 1 of the PHA 1997 extends “to England and Wales only” (see section 14(1)). As the Claimant notes, there are a number of authorities (considered further below) which suggest that a claim cannot be brought pursuant to the PHA 1997 unless the alleged act of harassment occurs within the jurisdiction and the impact on the victim is felt within the jurisdiction. In the present case the Defendant is located in the UK, but the Claimant was in the US during the course of conduct said to constitute harassment, and he has not indicated any intention to travel to the UK in the foreseeable future. The Claimant suggests that arguments could be made for a more expansive approach to territorial jurisdiction, but submitted that, where the Defendant was unrepresented, this is not a suitable case in which to determine what he described as the “difficult [jurisdictional] issue.” On that basis the Claimant invited me not to determine relief in relation to the PHA 1997, but instead to stay the harassment claim. He said that would enable the court to provide a remedy if the impugned conduct continued and there were an apprehended breach because the Claimant were to come, or was planning to come, to the jurisdiction. He submitted that the stay could then be lifted and the court could determine the question of jurisdiction for the purpose of the past acts of harassment, and, if the Claimant succeeded, the court could go on to consider remedy including injunctive relief.

Whether or not to grant a stay is a question of case management to be determined pursuant to the overriding objective set out in CPR 1.1. That means dealing with cases justly and at proportionate costs, which includes allotting to a case an appropriate share of the court’s resources while taking into account the need to allot resources to other cases. Taking those matters into account, I do not consider that staying the PHA 1997 claim to be an appropriate course. I reach that conclusion for the following reasons:

For these reasons I reject the request for a stay. The Claimant did not make submission on what should occur if I was against him on the stay. He did not, however, withdraw his harassment claim, and it therefore remains before me on the question of remedy. On that basis, as the Claimant recognises, it is necessary for me to determine the issue of jurisdiction.

Jurisdiction pursuant to the PHA 1997 has been considered in a number of cases. It was considered by Sir David Eady, sitting as a High Court Judge, in Shakil-Ur-Rahman v ARY Network Ltd [2016] EWHC 3110 (QB), [2017] 4 WLR 22. The claim in Shakil-Ur-Rahman was brought for harassment and defamation. The focus of both claims was a series of television programmes over a 12-month period that were broadcast in the UK and were said to be abusive and defamatory of the claimant. The claimant was, however, at the material time outside the jurisdiction. Sir David Eady indicated that was no bar to the defamation claim, but that “[w]here harassment is alleged … the tort is not complete unless and until it impacts upon the person concerned” (paragraph 117). He continued at paragraph 119 (emphasis in original):

On that basis Sir David Eady dismissed the harassment claim. As he noted, however, it is not clear how much the harassment claim added to the defamation claim, given that the same publications were being relied on for both torts and that the claimant could rely on the “hostile activity” that constituted harassment for the purpose of aggravation of damages in the defamation claim (paragraphs 109 and 120, and see below in relation to the same applying to the present case).

In Lawal v Adeyinka [2021] EWHC 2486 (QB) Richard Spearman QC, sitting as a Deputy Judge of the High Court, reached a similar conclusion on jurisdiction. He refused an application for an interim injunction pursuant to the PHA 1997 in relation to broadcasts said to have been disseminated from the UK, but where the claimant was based at all material times in Nigeria. Mr Spearman QC held that the PHA 1997 “relates to matters which occur within this jurisdiction” (paragraph 18), and that “the civil remedies which arise on the basis of the pursuit of the relevant course of conduct, are all concerned with matters occurring within this jurisdiction” (paragraph 20). He held that “whether the course of conduct complained of is actionable has to take account of where it had an effect upon the claimant” (paragraph 20), and continued at paragraph 21:

Mr de Wilde referred me to authorities cited in Moreham and Speker (ed), The Law of Privacy and the Media (OUP, 4th edn, 2024) paragraphs 6.55-6.58 which, he said, showed the courts taking a broader approach to the questions of the impact of harassment and the location of the claimant. I am not convinced those authorities assist. None consider the issue of jurisdiction directly, and they either concern cases where the claimant was present in the jurisdiction during at least some of the conduct constituting harassment (see for example Maisto v Kyrgiannakis [2012] EWHC 4084 (QB)), or where the claimant would be in the jurisdiction in the near future (see Potter v Price [2004] EWHC 781 (QB)).

While the High Court is not formally bound by a previous High Court authority, it should “generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so” (see Willers v Joyce [2016] UKSC 44, [2018] AC 843 paragraph 9). The ratio of Shakil-Ur-Rahman and Lawal is clear: for the tort of harassment under the PHA 1997 to be committed it requires not only that acts of harassment were committed by the perpetrator in the jurisdiction, but that the acts were experienced as harassment in the jurisdiction by the victim. I see no “powerful reason” not to follow Shakil-Ur-Rahman and Lawal and none was identified by the Claimant.

There are, indeed, strong arguments supporting the analysis in Shakil-Ur-Rahman and Lawal. PHA 1997 section 1(1) prohibits a person from pursuing a course of conduct he “knows or ought to know amounts to harassment” and section 14(1) provides that section 1 extends to “England and Wales only”. “Harassment” denotes a “persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress” (Hayes v Willoughby [2013] UKSC 17, [2013] 1 WLR 935 paragraph 1, emphasis added). There is therefore no “harassment” unless and until the victim is, in fact, harassed. There will therefore not be “harassment” in “England and Wales” where the victim is at all material times outside the jurisdiction.

That said, such an interpretation of the Act may produce undesirable results. Given the nature of modern communication, conduct causing another person alarm, fear or distress can clearly be perpetrated where the perpetrator is in one country, and the victim in another. If a narrow view is taken of jurisdiction, a victim of acts perpetrated in the UK, that on any ordinary understanding constitute ongoing, serious and harmful harassment, would have no remedy either in the UK or in the country in which they reside because the person perpetrating the course of conduct and the victim are in different jurisdictions. The criminal law, albeit in other contexts, has exerted jurisdiction where conduct was committed in the jurisdiction, but its effects felt outside. For example, where a person obtained property by deception with the deception occurring in London and the obtaining occurring in New York, the Court of Appeal concluded that the crime fell within the court’s jurisdiction (see R v Smith) (No. 4) [2004] EWCA Crim 631, [2004] QB 1418). Part of the rationale was a recognition that the nature of modern financial transactions meant that failing to recognise jurisdiction in such circumstances would leave a significant lacuna in protection from fraud. The same could be said of harassment perpetrated in one jurisdiction but experienced in another. In circumstances in which I have not heard full argument on the issue, however, and in which I consider that, if the issue were to be determined, it would need to be in a higher court able, if necessary, to overturn Shakil-Ur-Rahman and Lawal,I say no more about it.

In any event, the above does not mean a person who is outside the jurisdiction can never obtain a remedy under the PHA 1997. In particular, the Claimant will not be without a remedy if, as he suggests, he may wish to come to the UK in the future. In Lawal Mr Spearman QC observed at paragraph 22:

PHA 1997 section 3(3) provides that “[a]n … apprehended breach of section 1(1) may be the subject of a claim in civil proceedings by the person who … may be the victim of the course of conduct in question” (emphasis added). An injunction can therefore be obtained by someone who has not yet been harassed, but may be a victim of harassment in the future. There is no reason in principle why a person who is outside the jurisdiction, but provides evidence that they intend to travel to the UK in the near future, could not seek an injunction for an “apprehended” breach of section 1(1). Clearly evidence of acts perpetrated while the person was outside the jurisdiction would support a claim for an apprehended breach, and an interim injunction was granted on that basis in HXZ v NMX [2025] EWHC 697 (KB). Indeed, if an injunction could not be obtained in such circumstances, it would mean a person might be unwilling to return to England because of a campaign of harassment against them (as was the case in HXZ) but could not obtain an injunction to stop it because they were not within the jurisdiction. That would be obviously undesirable.

Applied to the present case, insofar as the Claimant seeks damages or other relief in relation to any past conduct of the Defendant pursuant to the PHA 1997, I consider that I am bound to follow Shakil-Ur-Rahman and Lawal. That means the Claimant cannot obtain a remedy in relation to those past acts of harassment because he was outside of the jurisdiction at all material times. If, however, the Claimant wishes to enter the jurisdiction at some future date, and can show that the Defendant’s conduct has continued and that he has a proper basis for apprehending that the PHA 1997 will be breached when he is in England and Wales, he may be entitled to an injunction of the kind granted in HXZ. I say nothing about whether such an injunction would be granted, but it does seem to me that the Claimant would not be without a remedy to protect him from such future harassment, which was said to be his primary basis for seeking to have the harassment claim stayed.

Unlike in relation to harassment, there is no reason in principle why a person who is defamed in England and Wales cannot obtain a remedy even if they were not in the jurisdiction at the time of the defamatory publications. That is because the tort is complete when the defamatory material is published irrespective of the location of the claimant. Sir David Eady in Shakil-Ur-Rahman thus granted the claimant a remedy in defamation in relation to the same acts that he considered would not be actionable under the PHA 1997 because of the latter’s jurisdictional limitation. I therefore turn to what, if any, remedy the Claimant is entitled to in the present case for defamation. The Claimant does not seek special or exemplary damages and limits his claim to general and aggravated damages and an injunction. I will deal with each in turn.

General damages in defamation cases are compensatory in nature. Warby J (as he then was) summarised the principles for assessing damages in Barron v Vines [2016] EWHC 1226 at paragraphs 20-21:

As Warby J noted, aggravated damages can be claimed in defamation cases. Lord Judge CJ explained in Cairns v Modi [2012] EWCA Civ 1382, [2013] 1 WLR 1015 paragraph 28 the relevant principle:

The factors that could be regarded as aggravating a claimant’s damage were summarised by Nourse LJ in Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at pages 183-184:

The Claimant’s defamation claim in this case relates to five videos published in 2021 and 2022 on the Defendant’s YouTube channel.

The first video relied on was published on 13 November 2021 under the headline "Frank,Sandra [the Claimant’s mother and father], and Frankie Rzucek ~ Please Pay Attention” (“Video 1”). In the video the Defendant discussed money being raised by the Claimant to pursue legal action. The words relied on by the Claimant as defamatory (with the video timings) are as follows:

The second video relied on was published on 14 November 2021 under the headline “FrankieRzucek's UK solicitor Cohen Davis~ Let's take a good look” (“Video 2”). The words relied on by the Claimant as defamatory are as follows:

The third video relied on was published on 1 January 2022 under the headline "I’M DONE! Here is my opinion on the whole damn thing!" (“Video 3”). The words relied on by the Claimant as defamatory are as follows:

The fourth video relied on was published on 30 January 2022 under the headline "CHRIS WATTS – AD tells you all of his private personal Connections to the family & CW contacts” (“Video 4”). The words relied on by the Claimant as defamatory are as follows:

The fifth video relied on was published on 17 August 2022 under the headline "Right toreply to FRANKIE wanting to sue AD and put him in prison” (“Video 5”). The words relied on as defamatory by the Claimant are as follows:

The Claimant, in his Particulars of Claim at paragraphs 24-28 relies on what he says to be the following defamatory meaning of the five videos

According to the Claimant, at the date of the Particulars of Claim, Video 1 had received approximately 26,000 views, Video 2 had received approximately 5,700 views, Video 3 had received approximately 22,900 views, Video 4 had received approximately 10,600 views and Video 5 had received approximately 8,900 views.

The Claimant invites me to accept the meaning of the videos set out in his pleadings. He contends that the impugned videos contained serious allegation of dishonesty, including dishonesty by fund-raising for legal proceedings and of raising money to that end from the public on a false and dishonest basis. He also contends that the videos allege that he had engaged in harassing and unlawful conduct towards the Defendant of a criminal or quasi criminal nature. He contends that the videos were widely published, with viewers numbering in five figures. The Claimant recognises that the viewing figures he relies on were not restricted to England and Wales but contends that a majority (perhaps three-quarters) will have been within the jurisdiction, noting that the Defendant’s YouTube channel attracts a significant number of viewers for content with a specific UK focus and that the Defendant’s fundraising activities, related to the channel, were focused on the UK. The Claimant also notes that the viewing figures he obtained are for those who watched the videos after they were created and will not have included those who watched them live. He relies on the fact that the publications were made on a number of linked occasions, and were targeted to those who were already interested in the Watts case.

In addition to the nature of the defamatory publication and its extent, the Claimant relies on the evidence contained in his witness statement that speaks of the “deep and lasting distress” caused by the publications, particularly given the context, namely the murders of his sister and nieces and the speculation about them and his family. He contends that the publications, and the Defendant’s wider speculation about the murder of his sister and nieces, have “destroyed [his] peace of mind” and his “reputation”. The Claimant further seeks aggravated damages. He contends that the defamation occurred in the most painful and upsetting circumstances given its connection to his sister’s murder. He also contends that the manner in which the Defendant responded to the claim has been obstructive and has caused delay, and that that should sound in aggravated damages as should the allegations that formed the basis of the harassment claim. As Sir David Eady recognised in Shakil-Ur-Rahman, even if a claimant is outside the jurisdiction for the purpose of the PHA 1997 claim, they can rely on acts of harassment that accompanied the defamatory statements for the purpose of aggravation of damages for their defamation claim. That is what the Claimant seeks in this case. The Claimant also notes that the Defendant has not apologised or sought to retract the allegations and had continued to repeat them in these proceedings.

On the basis of the above, and by reference to a number of comparator cases I discuss below, the Claimant invited me to award him £60,000 for defamation to encompass both general and aggravated damages.

The Defendant’s position is that the publications consisted of a limited number of videos over a defined period. In his oral submissions he denied that the videos were watched the number of times claimed by the Claimant, and suggested they were watched approximately 6,000 times and noted that they were no longer available. He contended that the videos had been inaccurately transcribed using AI and had been quoted out of context. He argued that there was no reliable evidence of reputational harm and that the Claimant’s evidence of distress had no medical or independent support. The Defendant also noted that when he had cross-examined the Claimant, the Claimant at first denied he had a criminal record beyond traffic violations, before confirming that was not the case and that he had at least one non-traffic conviction. The Defendant invited me, on that basis, to place no reliance upon the Claimant’s evidence. The Defendant also stated his aim in discussing the Watts case had been to prove that Shanann had not killed her children, and to show that Chris Watts had not acted alone. He stated that he had never suggested the Claimant had any involvement in the murders or ever sought to contact him. He repeated the claim that the Claimant had been raising money on “false pretences” by suggesting he did not have a criminal record. He stated that it was he that was the victim of the Claimant’s harassment, not the other way round, and that he had been targeted by the Claimant and harassed by his supporters.

The Defendant noted that he had adopted a restrained approach when he cross-examined the Claimant, which, he submitted, was relevant to aggravated damages. He stated that he had no fixed employment income, nor savings or property. He invited me to act “proportionately” in assessing damages and argued that any damages should be modest “at the lower end or nominal”.

Position on factual allegations where a defence is struck out and judgment entered

In this case the Defendant’s defence has been struck out and judgment entered in the Claimant’s favour. In these circumstances, what approach should I take to any factual disputes in the pleaded cases when determining remedy?

In Brett Wilson v Persons Unknown [2015] EWHC 2628 (QB); [2016] 4 WLR 69 Warby J considered the approach the court should take to meaning in a defamation case where a default judgment was entered because a defendant had failed to file an acknowledgement of service or a defence. Warby J held at paragraph 18 that the correct approach in such cases (as he had indicated in Sloutsker v Romanova [2015] EWHC 2053 (QB)) is to “proceed on the basis of the claimant's unchallenged particulars of claim”. He continued at paragraph 19 “[that] general approach … could need modification in an appropriate case, for instance if the court concluded that the claimant's interpretation of the words complained of was wildly extravagant and impossible, or that the words were clearly not defamatory in their tendency.”

The Claimant submitted that an analogous approach is appropriate where, as here, a defence has been submitted but has been struck out and judgment entered for a claimant. I agree. In those circumstances the general approach in considering remedy is to proceed on the basis of the claimant’s particulars of claim. It would not be appropriate to conduct a detailed trial of fact or permit a defendant to embark on a wholesale challenge to the claimant’s case on liability. That would be to undo the striking out of the defence, and, in effect, to permit a defence to be resurrected. That is save for the potential for “modification”, identified by Warby J, in cases where the meaning pleaded by the claimant of the defamatory words was “wildly extravagant and impossible” or if the words “were clearly not defamatory in their tendency”. The same will apply if some other significant aspect of the case was so obviously and conspicuously incorrect that it should not be accepted by a court. In such cases the court should not simply proceed on the basis of the pleaded case, but instead reach its own view on meaning, or not accept the words used were defamatory, or not accept some plainly incorrect factual assertion.

In the present case I do not consider that the meanings pleaded by the Claimant of the five videos, set out above at paragraph 57, is “wildly extravagant and impossible” or that the words were so “clearly not defamatory in their tendency” that I should not accept defamation has been established. Nor do I consider that some other significant aspect of the pleaded case is so obviously and conspicuously wrong that I should not accept it. It may be that had the Defendant submitted a defence compliant with the CPR he would have been able to respond to one or more aspect of the Claimant’s pleaded case, whether on defamatory meaning or in establishing the truth of some aspect of the videos. It is, however, not open to the Defendant to embark on that exercise now. I therefore proceed, as Warby J did in BrettWilson,on the basis that the defamatory meaning pleaded by the Claimant is correct, the words are defamatory and that the factual basis of the Claimant’s defamation claim is established.

The Defendant is, however, entitled to question the Claimant’s evidence on the impact the videos had upon him. I did have some concerns that, as the Defendant noted, the Claimant initially denied having any non-traffic criminal convictions before it was pointed out to him by the Defendant that was not correct. I do not consider, however, that that would justify my disregarding the Claimant’s evidence on the impact of the publications in its entirety as the Defendant invited me to do. I also accept Mr de Wilde’s submission that the Claimant was understandably guarded in circumstances in which he was being directly questioned by the person he considered had been responsible for harassing him. The Defendant did not question the Claimant’s general evidence that he was distressed by the publication of the videos, and I see no reason to doubt that he was distressed by allegations that he was dishonestly seeking to raise funds and that he had harassed the Defendant.

Damage to the Claimant’s reputation and vindication of good name

Turning to the factors set out in John v MGN Ltd, as considered in Barron v Vines, I, first, consider the damage to the Claimant’s reputation caused by the defamatory videos. Any sum in damages should compensate him for that damage and should be such as to “vindicate his good name”. Determining damage to reputation involves, as Sir Thomas Bingham MR held in John v MGN Ltd, consideration of the “gravity of the libel” and the “extent of publication”. In that regard, the allegations contained in the videos, given the meaning ascribed to them, are serious. They suggest that the Claimant was raising money from the public on a fraudulent basis not to complain about misinformation by the Defendant but to enrich himself; and that the Claimant had harassed the Defendant and caused serious threats of violence to be made against him. They are serious allegations made in a significant number of linked videos. While the Defendant asserted before me that the videos were watched by less people than the Claimant claimed, he provided no evidence to that effect, and I have no reason to doubt the figures in the Claimant’s pleadings. That means the videos were published to between, at least, 5,700 and over 20,000 viewers, and with two of the videos being watched by 22,900 and 26,000 viewers respectively. As the Claimant submitted, more would have watched live. As the Claimant recognises, not all of those individuals will have viewed the videos in the jurisdiction, but I accept the Claimant’s submission that a majority, and perhaps three-quarters, will have done so. That means that the defamatory publications are likely to have been watched by more than 20,000 people in this jurisdiction. That is a significant number.

As set out above, the fact that the Claimant was outside of England and Wales does not prevent him obtaining damages in defamation. Nor does it matter whether the Claimant was known within the jurisdiction prior to and separate from the defamatory publications by the Defendant. As the Court of Appeal observed in Jameel v Dow Jones & Co [2005] EWCA Civ 75; [2005] QB 946 at paragraph 28:

It is, however, the impact on the Claimant’s reputation caused by publication of the defamatory videos in this jurisdiction that is the subject of the claim, and the fact that he lives outside the UK may be relevant to quantum. As Warby J noted in Barron v Vines at paragraph 21(3)(c), the “identities of the publishees” affects quantum, so, for example, “[p]ublication of a libel to family, friends or work colleagues may be more harmful and hurtful than if it is circulated amongst strangers.” Similarly, the publication of a libel to individuals who a claimant sees on a daily basis may be more harmful and hurtful than publication to those with whom he or she has no connection and is unlikely to interact with in the future. It is also relevant if a person previously had a well-known and positive reputation in the jurisdiction (see Barron v Vines paragraph 21(3)(A)). Thus while an “unknown American erroneously described in the town's local paper as a paedophile” will be entitled to pursue an action in libel, it may be relevant to the damages he receives if, unlike a well-known local man similarly described, the libel was not published to those who knew him or with whom he was likely to interact in the future.

The impact on damages of a claimant being located outside the jurisdiction has been recognised in a number of cases. Sir David Eady observed in Shakil-Ur-Rahman at paragraph 103 (emphasis added):

In Hussein v Hamilton Franks & Co Ltd [2013] EWHC 462 (QB) HHJ Moloney QC (sitting as a High Court Judge) held at paragraphs 33-34 (emphasis added):

Like the claimants in Hussain, the Claimant in the present case lives abroad and this jurisdiction “is not the main locus of [his] reputations or of those with whom [he] mostly deal[s]”. Mr de Wilde accepted the libel was not published to the person from whom, as he put it, the Claimant “bought his milk in the morning”, and he accepted this would affect quantum. I consider that to be correct and will be relevant where comparisons are made to damages awarded to claimants in other cases for whom this jurisdiction is the main locus of their reputation. That said, the reduction in damages may not be as marked as in Hussain, where the claimants were awarded damages of £10,000 and £20,000 in circumstances in which, as HHJ Moloney QC noted, residents of this jurisdiction might have been awarded £80,000 to £100,000 for allegations of similar gravity. The publications in this case were in the UK, but they occurred online and to a “community” of those interested in the Watts case. Many would know of the Claimant, and some at least were likely to interact with him, even if he was resident abroad and they were in the UK.

Distress

In terms of the other factors set out in John v MGN Ltd, the compensatory sum should “take account of the distress, hurt and humiliation which the defamatory publication has caused”. As set out above, I accept the Claimant’s evidence that he was caused distress by the allegations published in the videos. That is so, in particular, given the context of the publication, namely the traumatic circumstances of his sister and nieces’ murder, and the repeated suggestion by the Defendant that the Claimant and his family were involved in a cover-up around its circumstances.

Aggravated damages

The Claimant also seeks aggravated damages. He relies on the context of the publication. That could be regarded as going to general damages as an element of the distress he suffered, as set out above. Or it could be regarded as an element of aggravated damages, on the basis that the defamatory videos were connected to the murder of the Claimant’s sister and nieces and made in response to the Claimant seeking to prevent the Defendant discussing them in a way that constituted harassment of his family. Ultimately it may not matter whether this aspect of the case is considered as an element of the distress for the purposes of general damages, or as an element of aggravated damages.

The Claimant also relies on the manner in which the Defendant has conducted the present litigation, and his failure to retract or apologise for the allegations contained in the defamatory videos. I consider that the lack of any retraction or apology is relevant to aggravated damages. Indeed, not only has the Defendant not sought to retract the allegations or apologise at any stage, but during the course of the proceedings he repeated the defamatory allegation that the Claimant had sought to raise money on “false pretences”.

As to the more general conduct of the litigation, the Claimant noted that in September 2021, when the Claimant’s solicitors wrote to the Defendant asking him to stop his publications about the family, the Defendant had stated in a video that “I will drag this all through the land and make sure they spend £100,000 before I even get in a courthouse, because I’ll draw it out.” Mr de Wilde invited me to infer that the Defendant’s subsequent conduct of the litigation reflected that intention, with the repeated failures to provide a proper defence and the late and unmeritorious application for permission to appeal stretching out the proceedings. I accept that the failure to retract the defamatory allegations, insisting that the claim was litigated and repeating the allegations as part of the litigation sound in aggravated damages. I am not, however, satisfied that the failure to provide a proper defence or the application for permission to appeal were deliberate tactics seeking to drag out the proceedings. The Claimant’s statement of September 2021 to which Mr de Wilde drew my attention was made some time before proceedings were commenced and indeed before the first of the defamatory videos were published, and Mr de Wilde was unable to point to similar statements at a later date. It seems to me that the Defendant’s failure to provide a proper defence, and his unsuccessful application for permission to appeal, reflected the fact he was a litigant in person doing his best to navigate an unfamiliar process, rather than a deliberate attempt to drag out the litigation in order to increase the Claimant’s costs. I do not therefore consider that should be reflected in aggravated damages.

I also consider that the Defendant conducted the litigation before me in a measured way despite the difficulty of appearing as a litigant in person. There was an obvious risk of aggravating the situation where the Defendant was cross-examining the Claimant in person, but I consider he conducted the cross-examination in a restrained manner, and I also note that the Defendant directly expressed his sympathy to the Claimant and his family for their loss. As set out above, the Defendant did repeat some of the defamatory statements and did not offer an apology. I do not, however, consider that otherwise the manner in which the Defendant conducted the litigation should aggravate damages.

Assessment of quantum in comparator cases

The Claimant relied on a number of what he described as comparator or analogous cases:

Based on the above comparators, the Claimant notes that his case, like that of Turley and Packham, involved allegations of dishonesty, including in the latter specifically in relation to fundraising. He also notes that, like Wilson,his case involved allegations of harassment. He also noted that in all the cases except Packham the publication numbers were significantly lower than in his case. On the basis of the comparators, and taking account of any inflation since they were determined, the Claimant submits that an award of £60,000 for general and aggravating damages is appropriate.

Conclusion on quantum

Ultimately, while general principles and comparator cases will be helpful, each case turns on its own facts. As set out above, I accept that the allegations of dishonesty and harassment, repeated over a number of linked broadcasts and published (at least for some of the videos) to at least twenty thousand people with a particular interest in the Watts case, did significantly damage the Claimant’s reputation, and have caused him distress. That is exacerbated by the context, namely the murder of the Claimant’s sister and nieces and the speculation of a cover up by the Claimant and his family made by the Defendant and others. That said, the context in Turley and Packham was of public figures with much wider reputations and the defamatory claims specifically focused on matters relevant to their public role. I also bear in mind that I am concerned with the impact of publication within this jurisdiction. The Claimant resides in the US and has not been in the jurisdiction at any material time and does not plan to be. The main locus of his reputation is the US and that is where he primarily interacts with people (other than online). While that does not prevent him being awarded damages, it means, as the Claimant accepted, damages would not be as high as if his reputation and daily interactions were all in the UK. I also note that the Claimant is entitled to aggravated damages in particular because of the Defendant’s failure to offer any retraction and apology and having repeated the defamatory statements during the course of litigation. His case does not, however, have the seriously aggravating features of Turley and Packham. In particular I do not consider that, other than the above, the Defendant conducted the litigation in a way thatsignificantly aggravated damages. Overall, and taking all of the above circumstances into account, I consider that a figure of £40,000 is an appropriate award for general and aggravated damages.

Injunction

The Claimant also sought an injunction in the following terms:

At the hearing before me, the Defendant did not oppose an injunction along those lines. In his post-hearing submissions, however, he resiled from that position. He stated that “In circumstances where real-world consequences have already arisen, including damage to my home, and where the Claimant’s own conduct continues to give rise to further risk and escalation, it would be neither just nor proportionate to impose an injunction operating only against me.”

I consider an injunction is appropriate. The injunction the Claimant seeks is narrowly tailored to the specific allegations found to be defamatory. It is difficult to see on what basis it would be justified for the Defendant to repeat them. I consider it is proportionate and appropriate to grant an injunction notwithstanding any impact on the Defendant’s right to freedom of expression.

Sum claimed in the Claim Form

Finally, the Defendant noted that in his Claim Form the Claimant had indicated that his claim was for £30,000 and at the hearing sought a considerably higher amount. The Claimant noted that CPR 16.3(7) provides that “[t]he statement of value in the claim form does not limit the power of the court to give judgment for an amount which it finds the claimant is entitled to”. He invited me not to limit damages to the amount specified in the Claim Form.

It is clear there are cases in which significantly more than the figure set out in the Claim Form has been awarded. For example, in Harrath v Stand for Peace Ltd [2017] EWHC 653 (QB), one of the cases to which the Claimant referred me, the Claim Form indicated the claimant expected to recover no more than £10,000. He was awarded £140,000. Care, however, does need to be taken where a claimant at trial seeks significantly more in damages than was claimed. The sum claimed in a Claim Form determines the court fee that a claimant pays, and it was recognised in Lewis v Ward Hadaway [2015] EWHC 3503 (Ch); [2016] 4 WLR 6 that it may be an abuse of process to undervalue a claim in order to pay a lower fee, and that, in the appropriate case, that could lead to a claim being struck out. I do not have any evidence that the claim in the present case was deliberately undervalued and cannot see that it would be proportionate to strike out the claim on that basis, and I consider the sum I am awarding is one to which the Claimant is entitled.

For the reasons set out above, I grant relief from sanction in relation to the late admission of the Claimant’s witness statement. I am not prepared to stay the Claimant’s Protection from Harassment Act 1997 claim and do not grant any separate remedy in relation to it. I award the Claimant £40,000 in general and aggravated damages in relation to the defamatory publications and grant an injunction in the terms set out above.