Mr Justice Nicklin tells lawyers his own ‘basic online research’ revealed that Davidoff’s expulsion from ARMA/IRPM wasn’t ‘false and fabricated’ but true
Richard Davidoff, of ABC Estates, and his legal team bungled a high court attempt to force Google to reveal the identities of online reviewers whose comments they claimed were false and defamatory.
The case unravelled after libel lawyer Mark Lewis, of Patron Law, accused one reviewer of writing a “false, fabricated statement” that referenced the decision by ARMA and IRPM to expel ABC Estates and Richard Davidoff.
Mr Justice Nicklin became peppery in his ruling (below, pp84-89) as his own “basic online research” revealed that this allegation was in fact true:
Declining to issue Norwich Pharmacal orders to reveal the identities of all 26 of the critical reviewers, Judge Nicklin ruled:
“The evidence the Claimants [Davidoff, family and ABC companies] have provided as to falsity is perfunctory, even desultory; contained in a single general paragraph of Mr Lewis’ witness statement, which descends to no detail.
“No attempt has been made to identify what, in any Review, is alleged to be false. For a claimant advancing a claim for malicious falsehood as a basis for a Norwich Pharmacal order it is simply not good enough to state: “[The Reviews] are false, fabricated statements which Unknown person(s) know are untrue …
“Further, even this “evidence” of falsity has been undermined by being shown to be unreliable in respect of Review 9. In that Review, posted under the name of Stuart Conway, the poster said that he had done some online research about the First Claimant and had discovered that he had been expelled from ARMA (the Association of Residential Managing Agents).
“Before the hearing, and following Mr Conway’s lead, I carried out some basic online research. Without difficulty, I found articles which did suggest that the First Claimant (or one of his companies) had been expelled from ARMA in November 2021.
“These articles referred to decisions of the First-Tier Tribunal Property Chamber (Residential Property) (“FTT”), of 12 August 2021 and 13 October 2022, in which the First Claimant was a party.
“In the latter decision (LON/00AW/LVM/2022/0005), Judge Nicol included the following in his judgment: “ [Richard Davidoff] used to be a member of IRPM (Institute of Residential Property Management) and Propertymark. His company, ABC Estates Ltd, used to be a member of ARMA (Association of Residential Managing Agents). They are no longer members of these organisation because they were expelled …”
William Bennett KC, counsel for Davidoff, subsequently sought to withdraw application for a Norwich Pharmacal order for this particular review.
Mr Justice Nicklin noted:
“It is a matter of very real concern that the Claimants put evidence before the Court, on an ex parte application, that was not true.
“Mr Lewis has not provided an explanation to the Court for this error (I have not required him to provide one). Nevertheless, I accept that Mr Lewis would not have knowingly misled the Court.
“It is likely that this error occurred because he had simply failed to carry out sufficient (or any) research or to take adequate instructions from his clients. Nevertheless, as a result, he included a statement in his witness statement that was seriously in error. That error was not detected (or corrected) by the Claimants.”
The judge said “the underlying claims in defamation are hopelessly weak”.
In an earlier application, Richard Davidoff had been granted a Norwich Pharmacal order against TrustPilot, where the reviews were published, to obtain the email addresses and IP addresses of the critical reviewers. The case here was to make Google identify the owners of the gmail addresses.
There were TrustPilot 28 reviews in total – alleging “rudeness, aggression and incompetence” – with 26 of them giving ABC Estates a one-star rating. Two, however, gave the company a five-star rating.
Two former employees of ABC, who paid damages and apologised for bogus online reviews accusing ABC Estates of dishonesty and fraud, had told the Davidoff legal team that they were not responsible for the TrustPilot reviews.
However, Mr Justice Nicklin refused a Norwich Pharmacal order against Google on the grounds that Davidoff had produced “no evidence that any Review has caused (or is likely to cause) either serious harm to their individual reputations or … serious financial harm”.
In addition, Google had not published the reviews, TrustPilot had. So information from Google would do nothing to address the harm allegedly caused by TrustPilot.
Leaseholders, especially those fast to make critical comments on social media, would do well to read the full ruling with care.
If leaseholders do make false and malicious statements, or run blogs whose primary purpose is maliciously to settle personal grudges, then the importance of Norwich Pharmacal orders should be pretty evident.