Optosafe Ltd & Ors v Robertson (Rev1)

B e f o r e :

THE HON. MRS JUSTICE STEYN DBE ____________________

____________________

Jonathan Barnes KC and Gemma McNeil-Walsh (instructed by Proskauer Rose (London) LLP) for the Claimants The Defendant appeared in person Hearing dates: 11-12 November 2025 ____________________

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

Mrs Justice Steyn :

This judgment is given following a two-day trial of a claim for breach of contract brought by the first claimant, and a harassment claim brought by the second claimant, against the defendant. An interim injunction was granted by Chamberlain J on 26 January 2024. Both claimants seek a final injunction and the second claimant seeks damages. The claimants also ask the court to impose an extended or general civil restraint order on the defendant.

The judgment is structured as follows:

The Parties

The first claimant, Optosafe Limited ('Optosafe'), is a company incorporated in Scotland. Since 2020, Optosafe has been owned by Orbis Protect Limited ('Orbis'), a company incorporated in England and Wales, for which the ultimate holding company is Conic Topco Limited ('Conic'). Orbis provides vacant property protection services, and ancillary services, across the UK. Optosafe remains a legal entity but it is now a dormant company, its trade and assets having been hived up to Orbis on 1 April 2023.

The second claimant, Ben Howard, is the Chief Executive Officer ('CEO') of Orbis, and a director of Orbis, Optosafe and Conic. He brings a claim for harassment in his own capacity and as " representative of those with the same interest as himself in respect of the Defendant's … conduct, who are the employees of Orbis Protect Limited and the directors and natural person shareholders of Conic Topco Limited ", including those labelled " the Other Named Individuals ", namely:

i) Guy Other, former CEO of Orbis and shareholder of Conic;

ii) Shaun Wilcock, Chief Technology Officer of Orbis;

iii) Liesle Bond, Head of Human Resources at Orbis;

iv) Louis Fordham, Social Development Director at Orbis;

v) David Ramsey, Senior Engineer at Orbis (within what is internally referred to as the "Optosafe Division");

vi) Dave Mann, General Manager at Orbis (in the Optosafe Division); and

vii) Ben Snow, Director of Conic and of Synova LLP ('Synova') (an investor which holds a 65% shareholding in Conic).

Prior to the acquisition of Optosafe by Orbis, the defendant, John Robertson, worked for Optosafe for several years as Chief Technology Officer, and he held 25% of the shares in Optosafe. Following the acquisition, the defendant continued to be employed by Optosafe, working for the first claimant as Managing Director pursuant to a new employment contract that he entered into on 31 July 2020 ('the Service Agreement'). The defendant received part of the purchase price of his shares but re-invested most of it receiving shares in the Orbis group (specifically, B ordinary shares and D ordinary shares in one of the holding entities, Project Cube Topco Ltd ('Project Cube')). On 25 March 2021, the defendant tendered his resignation. He was placed on garden leave on 6 April 2021 and ceased to be employed by Optosafe with effect from 4 June 2021, when he entered into a settlement agreement ('the Settlement Deed'). On the same day, he entered a Share Buyback Agreement with Project Cube, selling his shares in that company for £390,908.98.

The claimants were represented by Jonathan Barnes KC and Gemma McNeil-Walsh. The defendant represented himself, as he has done throughout these proceedings.

The history of proceedings

The claim form, accompanied by Particulars of Claim, was issued on 15 January 2024. On the same day, the claimants filed an application for an interim injunction which was served on the defendant on 16 January 2024. There was an inter partes hearing of the application on 24 January 2024. The defendant did not oppose the relief sought but nonetheless, given the defendant's lack of representation, Chamberlain J considered carefully whether it was appropriate to grant the order sought and was satisfied that a proper case for injunctive relief had been made out.

On 11 July 2024, there was a hearing before Deputy Master Marzec who granted permission for certain parts of a document entitled "Defence Statement of John Robertson" dated 15 February 2024 to stand as his Defence, striking out the remainder and requiring him to verify and file his Amended Defence. Permission to serve the document entitled "Statement of case for counterclaim" was refused. The Deputy Master gave directions for the defendant:

i) if he wished to rely as part of his defence on an allegation that the settlement agreement was obtained by misrepresentation, to serve a properly particularised case of misrepresentation, and make a further application to amend the defence; and

ii) if he wished to pursue a counterclaim for misuse of private information, to file by 25 July 2024 a proposed amended counterclaim which included the information specified in paragraphs 7.1.1 to 7.1.16 of the order, in so far as it was available to him.

The defendant filed his Amended Defence on 25 July 2024 and the claimants filed a Reply on 15 August 2024.

On 22 January 2025 and 1 February 2025, the defendant filed two application notices by which he sought to vary or discharge the interim injunction and for the second claimant's committal for contempt. Both applications were heard by Jay J on 4 March 2025, and both were dismissed and certified as totally without merit. Jay J made a Limited Civil Restraint Order ('LRCO') against the defendant.

On 1 July 2025, Master Armstrong dismissed applications by the defendant to amend his "Defence and Counterclaim", to join Orbis as a defendant to the proposed counterclaim, and for non-party disclosure against NorthEdge Capital LLP and Grant Thornton UK LLP (respectively, an investor in and accountant for the first claimant). The two non-party disclosure applications were certified as totally without merit.

The pre-trial review took place before me on 15 October 2025. I granted the claimants' application to amend the description of those whose position is represented by the second claimant to make it consistent with the heading and the interim injunction. I struck out parts of the defendant's witness statement and his hearsay notice, refused him permission to rely on the statement of Laura Pearson, and refused the claimants' application for an order prohibiting the defendant himself from cross-examining the second claimant ( [2025] EWHC 2733 (KB) ).

The witnesses

I heard evidence from two witnesses, Mr Howard and Mr Robertson. Mr Howard gave three witness statements. Mr Robertson gave one statement and verified a hearsay notice in which he gave evidence of statements made to him by Jason Gilchrist.

The defendant strongly challenged Mr Howard's credibility, placing heavy emphasis on two matters. In Mr Howard's first witness statement he said,

In examination-in-chief, Mr Howard explained that the words I have underlined were incorrect. The two named companies are not part of the Orbis group. Other than the company created by Mr Robertson, there were seven companies that formed part of the Orbis group which had used the name " Sitex Orbis " [1] , and two that used that name which were not part of the group. Mr Howard believed that the error had crept into his witness statement because of a miscommunication with his solicitors, who had assisted him in the drafting of his statements. He apologised for the error, and for failing to notice it when he had made his second and third statements.

The second matter derived not from Mr Howard's statements but from the Particulars of Claim in which it was said that " C1 specialises in the design, assembly, installation, maintenance and monitoring of CCTV tower systems ", and Mr Ramsey and Mr Mann were described, respectively, as the Senior Engineer and General Manager " at Optosafe ". As I have said, and Mr Howard explained, Optosafe has in fact been a dormant company with no employees since 1 April 2023. The employees transferred to Orbis. So the description of Mr Ramsey and Mr Mann, both of whom were formerly employed by Optosafe, as working at Optosafe is technically incorrect. However, as Mr Howard explained, that is how they would be likely to describe their employment, as they continue to report to the same managers as before and to work for the division within Orbis which is internally named Optosafe, which undertakes the design, assembly, installation, maintenance and monitoring of CCTV tower systems.

I found Mr Howard to be an honest and reliable witness. He listened to the questions and was candid in his answers. Neither Mr Howard, nor the claimants, had anything to gain by giving the names of two non-Orbis group companies as examples, rather than any of the seven Orbis group companies who he could have named. I accept his evidence that the error arose from a miscommunication and, unfortunately but understandably, he did not spot it when reviewing his statement. Nor is the minor inaccuracy in the Particulars of Claim material. Although Mr Howard was cross-examined for close to three hours, Mr Robertson largely concentrated on peripheral matters, leaving Mr Howard's evidence on the substantive issues mostly unchallenged. I was unpersuaded that any of the matters relied on by Mr Robertson undermined Mr Howard's credibility.

Mr Robertson's belief that he has cause to feel aggrieved at the claimants is evidently sincere. His grievance appears to stem, first, from the circumstances in which he resigned and, secondly, from the circumstances in which his medical information became known. By choosing to resign when he did Mr Robertson received a lesser financial reward for his shares than if he had chosen to continue as Managing Director until after NorthEdge partially exited the business, and a new investor, Synova, came in. However, it is clear, and was acknowledged by Mr Robertson in a Teams call that he covertly recorded, that Mr Howard sought to persuade him to stay, explaining that he stood to gain a seven-figure sum if he did so. Mr Robertson's complaint is that he was not told that Guy Other, with whom he had a difficult relationship, would be leaving. Mr Howard found it difficult to believe that disclosing Mr Other's intended departure (the timing of which was understandably sensitive) would have made a difference given that his attempt to persuade Mr Robertson to stay, and explanation of what he stood to gain financially, had no impact; and Mr Robertson (admittedly untruthfully) told him at the time that he had Marfan Syndrome, had two years to live and wished to retire to spend time with his family.

As to his second complaint, after he resigned, medication belonging to him was found by a member of staff in a desk drawer on Orbis premises. A member of staff undertook an internet search to ascertain the conditions for which the medication is prescribed. The matter was drawn to the attention of Mr Howard and Ms Bond who instructed that the medication, which appeared to be out of date, should be disposed of and that staff should say no more about it and respect Mr Robertson's privacy. Mr Robertson has subsequently publicised that he is HIV positive on LinkedIn, stating that it had become widespread knowledge because of the actions of his former employer.

However, although his grievances are sincere (irrespective of whether he has cause to feel aggrieved at his former employer), he was not a candid or reliable witness. Mr Robertson frequently evaded answering the questions he was asked. For example, when he was shown his LinkedIn posts, and repeatedly asked to accept that the content was unreasonable and oppressive, he often responded that he was speaking only to his own " echo chamber ". Similarly, when shown his direct emails to Mr Howard and others, and asked to accept that they were unreasonable and oppressive, he frequently responded that the advice to quarantine his emails meant no one read them. Mr Robertson is an intelligent and articulate man of business. In relation to the contract claim, he sought to throw dust by focussing on matters he knew were of no consequence (such as the presence or absence of a space in Sitex Orbis and delivery of a deed). In relation to the harassment claim, as I explain further below, it is clear from his actions and the content of his messages that he chose quite deliberately to engage in a campaign of harassment. His assertions that he would have desisted if he had been asked, and denial that his actions were bound to cause distress to those targeted, were inconsistent with the evidence and lacked any credibility.

The claim for breach of contract

The Service Agreement and the Settlement Deed

The Service Agreement was entered into on 31 July 2020. The parties to it are the first claimant and the defendant. It was signed by Guy Other (a director and CEO) on behalf of the first claimant and by the defendant himself, with each of their signatures being witnessed by others. Under the Service Agreement, the defendant was employed to serve the first claimant " as Managing Director of the Optosafe division or such other role as the Company considers appropriate " (clause 4.1). Among other benefits, the consideration the defendant received under the Service Agreement was " an initial salary of £120,000 per annum " (clause 7.1). The Service Agreement is the contract of employment under which the defendant provided his services to the first claimant, as Managing Director, for more than eight months.

On terminating his employment on 4 June 2021, the defendant entered into a severance agreement with the first claimant: the Settlement Deed. The Settlement Deed was signed by the defendant and by the second claimant (a director and CEO) on behalf of the first claimant, each of whose signatures were independently witnessed. An independent legal adviser, Kenny Scott of MacRoberts LLP, confirmed that he had given the defendant legal advice on the terms and effect of the Settlement Deed, in accordance with clause 5.3 and Schedule 2. Among other benefits, the first claimant agreed to make a one-off termination payment to the defendant of £30,000 (clause 3.1). Mr Robertson was paid more than he was contractually entitled to upon his resignation in recognition that he was leaving on good terms and cooperating with a handover.

The defendant has no pleaded case that the Service Agreement or Settlement Deed, or any term of either contract, is invalid or unenforceable. He sought on the first day of trial to apply for permission to make an application to re-amend the Amended Defence to plead that the Service Agreement and the Settlement Deed are not enforceable as deeds as they were not validly delivered. I refused that application as it was made fatally late and, in any event, lacked merit. Nonetheless, the defendant pursued it in his closing submissions.

First, the lack of a pleaded case is fatal. The defendant cannot rely on his mere general denial of the claims as enabling him to put forward, for the first time at trial, a positive case that the Service Agreement or the Settlement Deed is invalid or unenforceable.

Secondly, in any event irrespective of whether the Service Agreement and Settlement Deed were duly delivered as deeds, each is a valid and enforceable contract. There can be no sensible argument but that the basic contractual ingredients of offer, acceptance, consideration and intention to create legal relations were present. The defendant himself states in his witness statement that it was pursuant to the Service Agreement that he signed that he transitioned to become Managing Director of Optosafe on 31 July 2020. He refers to the execution of the Settlement Agreement and associated Share Buyback Agreement, both signed on 4 June 2021, as being the documents that " formalised the end of [his] employment and board role within the Orbis group ". The claim is for breach of contract. It does not matter whether the contracts also happen to be validly executed and delivered deeds.

Thirdly, the only basis on which the defendant contends that the Service Agreement and Settlement Deed were not delivered is that the copies in the trial bundle are undated. However, the copies attached to the Particulars of Claim were duly dated " 31 July 2020 " and " 4 June 2021 ", respectively. The Service Agreement states, " This agreement has been entered into as a deed on the date stated at the beginning of it ." The Settlement Deed states, " This document has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it. " For the purposes of subsection (1)(b) of s.46 of the Companies Act 2006, " a document is presumed to be delivered upon its being executed, unless a contrary intention is proved ". The contrary has not been proved in respect of either contract.

The Non-Representation Clause

Under the heading " Restrictive covenants ", clause 23.1.6 of the Service Agreement provides:

The first claimant is " the Company ". " Group Company " is defined in clause 1.1 of the Service Agreement as:

Under the heading " Restrictive covenants ", clause 11 of the Settlement Deed provides:

The Non-Disparagement Clause

Clause 12.4 of the Settlement Deed provides:

Clause 12.6 provides:

The defendant contends that the Non-Disparagement Clause is designed to preclude a worker from making a protected disclosure and so it is rendered void by s.43J of the Employment Rights Act 1996 ('ERA 1996'). Section 43J(1) provides:

Section 43A of the ERA 1996 provides:

The Non-Disparagement Clause does not purport to preclude the defendant from making a protected disclosure within the meaning of s.43A of the ERA 1996. Clause 12.4 is expressly subject to clause 12.6 which refers in terms to the right under s.43A. Thus paragraph 6(b) of the interim injunction provided:

Thus, without breaching the interim injunction (or the Non-Disparagement Clause), the defendant has made numerous reports about the claimants to public bodies including the Financial Conduct Authority, the Police, the Serious Fraud Office and the Security Industry Authority.

Accordingly, I reject the defendant's submission that the Non-Disparagement Clause is void or unenforceable.

Breaches of the Non-Representation Clause

The first alleged breach of the Non-Representation Clause is that on 4 August 2023, the defendant published a post on LinkedIn in which he created caricatures of what he labelled " The Gang ". The post is in evidence. In a text box next to a picture of a man being assaulted by men wearing suits and bearing knives, the defendant wrote:

Mr Barnes contends, on behalf of the first claimant, that this is an obvious breach of the Non-Representation Clause. Mr Robertson contends that this is a trivial allegation which has not been properly pleaded. Further, he alleges that it is a nickname descriptive of a past association with the company rather than a representation of a current connection.

I reject the suggestion that the allegation has not been properly pleaded. Paragraph 29 of the Amended Particulars of Claim states:

Paragraph 22.6 of the Amended Particulars of Claim referred to LinkedIn posts published by the defendant on 4 August 2023, to one of which the defendant attached a document titled " The Gang " containing seven caricature profiles. The pleading states, " The final 'caricature' profile is of D, in which he gives himself the nickname 'John MR Optosafe Robertson'. " It is clear that the specific instance of use of the name " Mr Optosafe " on 4 August 2023 was pleaded.

LinkedIn is an online professional networking site which is public by default. By calling himself " Mr Optosafe ", in a LinkedIn post, the defendant was both representing himself as connected with Optosafe and he was using a registered business name associated with Optosafe. This was an obvious breach of the Non-Representation Clause. The first claimant has not shown there were other occasions on which the defendant used that name, but it is evident that he regards it as a nickname that he is entitled to use and would be likely to continue using if not restrained.

The second alleged breach of the Non-Representation Clause is that on 3 October 2023 the defendant incorporated a company called " Sitex Orbis Fraud Investigations Limited ", of which he is the sole director and shareholder. That he did so is shown by a document from Companies House and was not disputed. In LinkedIn posts thereafter the defendant described himself as " Managing Director at Sitex Orbis Fraud Investigations " (e.g. LinkedIn post of 11 October 2023).

A certificate from Companies House shows that Orbis was formerly called SitexOrbis Limited from 31 March 2009 until 9 May 2014. In addition, I accept Mr Howard's evidence (to which I have referred above) that seven companies within the Orbis group (and thus within the definition of " Group Company " in the Service Agreement) have used the name " SitexOrbis " (probably, as for SitexOrbis Ltd, without a space). None of the Orbis group uses that name anymore because through an acquisition by a competitor, VPS, about a decade ago, VPS acquired the name Sitex while Orbis retained the name Orbis. Nevertheless, I accept Mr Howard's evidence that " Sitex Orbis is most definitely a name that is associated with Orbis, as a group of companies ", and of course part of that name remains Orbis's registered business name. Indeed, I have no doubt that it is precisely because of the obvious association and connection to the Orbis group that the defendant chose the name he did for the company he incorporated. In my judgment, it was a breach of the Non-Representation Clause.

Breaches of the Non-Disparagement Clause

The details set out below in respect of the harassment claim demonstrate that the defendant has frequently made adverse and derogatory comments about Orbis, its officers and employees in a manner designed to bring them into disrepute. In particular, he has done so in numerous posts published on LinkedIn, a professional networking site on which his posts were publicly accessible.

At this stage, I will give just one example, addressing the remaining instances in chronological order in the context of the harassment claim. On 11 September 2023, the defendant published a post on LinkedIn in which he wrote:

The defendant attached to this message caricatures of each of the named individuals: a picture of a clown is labelled " Ben Coward "; a picture of a fox wearing a suit, while picking up and surrounded by money, is labelled " Sly Other "; a bald man with a fat, bare stomach standing before piles of money is labelled " Andrew No Balls "; and a wooden toy man, holding and surrounded by money, is labelled " Ben Pinnochisnow ".

To take just one example, in this message, the defendant expressly accused Mr Howard, who he identified as the CEO of Orbis, of " highly illegal fraud ", and caricatured him in a derogatory way as a clown. Mr Howard is one of the officers and employees protected by the Non-Disparagement Clause. The defendant's public message was designed to bring Mr Howard and Orbis into disrepute. It plainly was not a protected disclosure within the meaning of s.43A of the ERA 1996. It was not directed to any responsible public body or regulatory authority. Nor did it disclose any evidence of wrongdoing. It was merely a taunting public threat.

The first claimant's contention that the defendant has breached the Non-Disparagement Clause has been established beyond any sensible argument by the primary evidence in the form of the numerous derogatory posts he has published on LinkedIn.

Conclusion: contract claim

Accordingly, the first claimant has established its claim for breach of contract.

The harassment claim

The case in outline

The second claimant's pleaded case is that the defendant has pursued a course of conduct amounting to harassment of him and those of whom his situation is representative, between 4 February 2023 and 10 January 2024, contrary to s.1(1) of the Protection from Harassment Act 1997 ('the 1997 Act'). The defendant's pleaded case is that (i) his conduct did not amount to harassment within the meaning of ss.1(1) and 7(2) because it was not used to alarm; (ii) he relies on the s.1(3)(a) defence that his course of conduct was pursued for the purpose of preventing or detecting crime (namely the activities which were the subject of the Security Industry Authority ('SIA') investigation and the Police Scotland investigation); and (iii) he relies on the s.1(3)(c) defence that in the particular circumstances the pursuit of the course of conduct was reasonable because it was designed to encourage whistleblowers to come forward to the SIA and Police Scotland, and it was investigative journalism in respect of serious criminal matters which were a matter of public interest. See Optosafe Ltd v Robertson [2025] EWHC 2733 (KB) , [24]-[26].

The law

Section 1 of the Protection from Harassment Act 1997 ('the 1997 Act') provides, so far as material:

An actual or apprehended breach of s.1(1) of the PHA may be the subject of a civil claim by " the person who is or may be the victim of the course of conduct in question " (s.3(1) PHA).

A claim under s.1(1) gives rise to three issues on which the claimant bears the burden of proof, namely, (i) did the defendant engage in a course of conduct? (ii) did any such course of conduct amount to harassment? And (iii) did the defendant know, or should he have known, that the conduct amounted to harassment? See Hourani v Thomson [2017 EWHC 432 (QB) , Warby J, [129]. If the second claimant succeeds on each of these issues, then it will be necessary to consider the two defences on which the defendant relies, provided by s.1(3)(a) and (c), on which he bears the burden of proof.

With respect to question (i), the 1997 Act specifies that a " course of conduct " must involve " conduct on at least two occasions in relation to that person " (s.7(3)(a)), and that " conduct " includes speech (s.7(4)). That is a threshold requirement. This first issue involves asking not whether there was harassment but whether the conduct complained of amounts to a " course of conduct ". That is " largely a question of fact and degree ": Hourani , Warby J, [132]. Whether the pleaded instances can be classified as a " course of conduct " depends on such factors as " how similar they are in character, the extent to which they are linked, how closely in time they may have occurred, and so on ": Hourani , [132].

The course of conduct must be targeted at someone. Conduct which, however alarming or distressing, is not aimed or directed at anyone is excluded. The claimant must show he is a " victim " of the relevant course of conduct, but it is sufficient if the course of conduct was targeted at another or others and the claimant is " foreseeably likely to be directly alarmed or distressed by it ": Hibbert v Hall [2024] EWHC 2677 (KB) , [149].

As regards issue (ii), " harassment " is an ordinary English word which is left undefined in the 1997 Act. Section 7(2) provides that references to harassing a person " include alarming the person or causing the person distress ", but this is " merely guidance as to one element " of the tort, not a definition, and it is not " an exhaustive statement of the consequences that harassment may involve ": Hourani , [138]. In addition, bearing in mind that the court is concerned with conduct that is a criminal offence (s.2(1)) as well as a civil wrong (s.3(1)), " section 1 is confined to serious cases ": Hayes v Willoughby [2013] UKSC 17 [2013] 1 WLR 935 , Lord Sumption JSC (giving the judgment of the majority), [1].

Harassment is "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 , [1]. The conduct relied upon must cross " the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2": Majrowski v Guy's and St Thomas's NHS Trust [2006] UKHL 34 , [2007] 1 AC 224 , Lord Nicholls, [30]; Hayes v Willoughby , [12].

The course of conduct, viewed as a whole, must be assessed objectively. It is not necessary for each individual act that comprises the course of conduct to be oppressive and unacceptable. Individual acts which, viewed in isolation, appear fairly innocuous, may take on a different complexion when viewed as part of a bigger picture: Hibbert v Hall , [152].

Any claim of harassment by speech is likely to engage the defendant's right to freedom of expression, which is protected by the common law and article 10 of the European Convention on Human Rights: see s.1 of and Schedule 1 to the Human Rights Act 1998. The Court's assessment of whether the conduct crosses the boundary from the unattractive, even unreasonable, to oppressive and unacceptable must pay due regard to the importance of freedom of expression and the need for any restrictions upon the right to be necessary, proportionate and established convincingly: Hayden v Dickenson [2020] EWHC 3291 (QB) , [44(viii)].

The context and way the information is published are all-important. The harassing element of oppression is likely to come more from the manner in which the words are published than their content. The truth or falsity of the words is unlikely to be determinative. The Court should take account of the extent to which the coverage complained of is repetitious and taunting, as opposed to being new, and prompted by some newsworthy event. See Hayden v Dickenson , [44] and Bukhari v Bukhari [2025] EWHC 2391 (KB) , [122].

As Aidan Eardley KC (sitting as Deputy High Court Judge) observed in Bukhari at [123]:

Question (iii) (identified in paragraph 50 above) reflects s.1(1)(b) of the 1997 Act in comprising the question whether the defendant actually knew his course of conduct amounted to or involved harassment (which concerns the defendant's subjective state of mind), or ought to have known that (which is to be judged objectively). The focus of attention is on whether the defendant knew or ought to have known that the course of conduct in which he engaged would have a harassing effect on the claimants, without prejudice to the issue of whether the conduct in question was " reasonable " within s.1(3)(c): Hourani, [154].

Warby J addressed the " preventing or detecting crime " defence in Hourani at [177]:

The s.1(3)(c) defence raises some of the same issues as the threshold test for harassment since a course of conduct is unlikely to amount to harassment unless it is at least prima facie unreasonable. The test is objective. In a publication case it must be applied, like the test for harassment itself, in a manner that avoids disproportionate interference with the defendant's freedom of speech: Bukhari , [124].

In Hourani, the claim against the principal defendant, who was responsible for " all aspects of the campaign ", was brought only in harassment, the limitation period for libel having expired ([4], [12(1)]), whereas both libel and harassment claims were brought against the other defendants. Warby J observed that the exercise that the court is engaged in when determining whether a course of conduct is " reasonable " for the purposes of the s.1(3)(c) defence " has some similarities with the evaluation of a public interest defence under s.4 of the Defamation Act 2013 ": Hourani [213]. Although the exercises are not the same, he noted that,

Did the defendant engage in a course of conduct?

On 3 February 2023, the defendant posted the following on LinkedIn:

Beneath his post the defendant placed a screenshot of part of a Serious Fraud Office (SFO) form, with a green tick marked " Success ", indicating that he had made a report to the SFO about the companies and individuals he had identified.

Also on 3 February 2023, the defendant sent an email to Ben Howard, Shaun Wilcock, Liesle Bond, Michael Kelly and a NorthEdge email address. The email was addressed to " Ben " (i.e. Mr Howard). The defendant wrote:

Despite stating on 3 February that he would not be commenting again, on 4 February 2023 the defendant posted on LinkedIn:

On 6 February 2023, solicitors for the claimants, Orbis Protect and Guy Other, Brabners, sent the defendant a letter before claim. Among other causes of action, they alleged harassment, stating the " wording used by you is aggressive and threatening " and that it was " clear from the wording itself that this was your intention ".

On 14 February 2023, Mr Howard and Ms Bond spoke to the defendant on the video platform Teams, in a prearranged meeting. The defendant covertly recorded the call and then, later in the year, he posted the video of the call, and excerpts of it, on LinkedIn. The transcript derived from the defendant's recording shows that Mr Howard said he was getting in touch because " I wanted you to stop "; " I want you to stop for us. I want you to stop for you. " The conversation was a reasonably amicable one in which the defendant said he would be leaving matters to the police or SFO and not posting any more.

For several months, the defendant refrained from publishing further posts about or sending emails to the second claimant. On 2 August 2023, the defendant published posts on LinkedIn with excerpts from the covertly recorded Teams conversation, stating:

On 4 August 2023, the defendant published the following on LinkedIn:

Attached to this post the defendant published a document headed " The Gang ". I have referred to the final caricature, of the defendant himself, in paragraph 35 above. The other six caricatures each consisted of a picture and text box. The caricature for Ben Snow comprised a picture of Snow-White grabbing money, and the text box stated:

The caricature of Mr Howard comprised a picture of a clown and a text box which stated:

The caricature of Mr Other comprised a picture of a horned beast in a suit, surrounded by skulls and money, and the text box stated:

The caricature of Mr Wilcock comprised a picture of a chess pawn, on a chess board, with a coiled snake on it, and the text box stated:

The caricature of Mr Mann comprised a picture of a fat man showing a bare stomach, with food and money scattered on a table before him, and the text box stated:

The caricature of Mr Ramsey comprised a picture of a man (surrounded by a crowd), standing before a table with money scattered across it, and the text box stated:

In a further post on LinkedIn the same day, 4 August 2023, the defendant wrote " Apparently today I will be served with an injunction and sued for £50,000 simply for exposing a bunch of criminals who have ruined my life… " He stated that he " stupidly sold my company to a bunch of con men ", describing them as " monsters " who had turned his staff against him. He concluded the post: " I am not afraid of these people and they don't give a toss about me, but they will soon. For the chaps at Synova – Stop with the hollow threats – Hit me ".

Two weeks later, the defendant posted on LinkedIn:

The defendant said this was his " last post before I disappear from social media ".

On 22 August 2023, the defendant published on LinkedIn emails that Mr Howard had sent in March 2021, before the defendant had resigned.

On 23 August 2023, the defendant published on LinkedIn:

On 24 August 2023, the defendant published a post on LinkedIn headed "SEXUAL PREDATORS". The defendant wrote:

On 30 August 2023, the defendant posted on LinkedIn:

There then followed caricatures of " Sly Other " (as a money-grabbing fox), " Ben Coward " (as a clown), " Andrew No Balls " (as a money-grabbing fat man with a bare paunch) and " Ben Pinnochisnow " (as a money-grabbing toy man).

On 7 September 2023, the defendant published a long post on LinkedIn in which he wrote " I am going all the way on this " and concluded:

The same day the defendant sent direct text messages to Mr Wilcock:

On Saturday 9 September 2023, the defendant published the following post on LinkedIn, labelling it " JR is coming for you ":

In an attachment to this LinkedIn post, the defendant wrote that " altering management accounts to present them falsely to a third party can be considered an offense [sic] under various laws ", and then listed " potential offenses " under the Fraud Act 2006, Companies Act 2006, Theft Act 1968 and Financial Services and Markets Act 2000, observing that if found guilty individuals may potentially face imprisonment. On the same page of the post, the defendant incorporated next to a photograph of a clown (with a cooking pot and books) a box containing the following words:

The following evening, Sunday 10 September 2023, the defendant sent a long email to dozens of people. The recipients included Messrs Howard, Snow and Wilcock, more than 20 people at Synova (one of the investors in the first claimant's group), and others. On the same day, he posted the email on LinkedIn with the following message:

The defendant opened the email with the words, " Some of you on this email do not know me, some of you know me very well… " He continued:

The defendant then wrote " I allege that " followed by a long list of allegations of corruption, extortion, providing false and misleading evidence, presenting fraudulent accounts, devising a scheme to defraud him, constructively dismissing and stealing £250,000 from him and hacking his personal emails, as well as matters concerning his girlfriend and mother. Many of the allegations were expressly directed at the CEO of Orbis, that is, Mr Howard. The defendant closed the email:

Also on the same day, 10 September 2023, the defendant posted on LinkedIn a message which read, " Theres only so much I can do, if you wont allow me to help you. time to speak up ", " Optosafe and Orbis Protect Staff Please read ", together with a two-page " Statement to all my former staff and colleagues ". He stated:

In the statement published on LinkedIn, the defendant alleged the commission of " a very serious crime ", criticised the failure to suspend Mr Howard, encouraged others to " call the whistleblower line " or " raise an investigation on the SIA website ", and said " I am Relentless as you have seen but I am no monster ".

The following evening, Monday 11 September 2023, the defendant sent an email to 13 recipients, all members of staff at Orbis, including Messrs Howard, Other, Wilcock, Ramsey, Mann and Ms Bond. The defendant wrote:

The same day, 11 September 2023, the defendant published on LinkedIn the post I have referred to in paragraphs 43-44 above, threatening to expose details " this time tomorrow " of " a highly illegal fraud " of which he accused Messrs Howard, Ball, Snow and Other, each of whom he again caricatured as " Ben Coward ", " Andrew No Balls ", " Ben Pinnochisnow " and " Sly Other ". He also sent a direct WhatsApp message to Mr Wilcock: " Please pass this message onto Ben …it's showtime ".

On 12 September 2023, the defendant sent Mr Howard a direct email:

The same day, he published an " Apology Statement " on LinkedIn, addressed to his " friends, followers and supporters ", in which he said, " I want to assure you all that I am of sound mind and have taken appropriate steps to address the situation. … Moving forward, my focus will be on assisting the criminal investigation and preparing for my upcoming employment tribunal ". (The defendant submitted a claim to the Glasgow Employment Tribunal on 14 September 2023.)

On 18 September 2023, the defendant published on LinkedIn a " Statement for Social Media to the Metropolitan Police ", marked for the " Attention: Metropolitan Police ", with the " Subject: Allegations against Ben Howard, CEO of Orbis Protect Ltd, under the Fraud Act 2006 ". In the post, the defendant made allegations of " fraudulent behaviour ", " deceptive practices ", " potential financial misconduct " and " misrepresentation of financial information ", against Mr Howard. He stated that Mr Howard has " 3 live fraud investigations against him " and that " To prove Mr Howard is not a first-time offender I can signpost other fraudulent activities Mr Howard has taken part of and received no punishment, namely the collapse of Carillion Plc …"

On 27 September 2023, the defendant posted on LinkedIn:

On 30 September 2023, the defendant published a letter he wrote to the Procurator Fiscal alleging " a crime against the very fabric of democracy ". The letter targeted Messrs Howard, Other and Fordham and Mr Fordham's daughter. In the post, the defendant wrote:

Both were solicitors' firms instructed at different times in 2023 to advise the first claimant. On the same day, the defendant posted on LinkedIn a copy of the complaint against Guy Lancefield of Brabners that he had made to the Solicitors Regulation Authority (SRA).

On 3 October 2023, the defendant published a post on LinkedIn in which he claimed:

The defendant attached to this post a copy of the Settlement Deed in which he had fully redacted his own address and the name, address and occupation of the person who witnessed his signature, but left partially visible the name of Mr Howard's wife (who had witnessed his signature), and left fully visible her postcode and occupation.

On 5 October 2023, the defendant posted on LinkedIn a long document in which he wrote, " If my former employer wishes to enforce that agreement, they are within their rights to, and I will take great pleasure in breaking that agreement in London surrounded by all my friends old and new ". He wrote, " The crimes I disclose this week will move things up several notches and it will get very serious very quickly. "

On 7 October 23, the defendant published on LinkedIn a post entitled " Showtime ". He wrote that the " £55Million claim they have been laughing at day by day will become more and more relevant " and made various allegations, including of breach of modern slavery laws " to defraud HS2 ".

On 7 October 2023, the defendant sent a long direct email to Messrs Howard, Other, Snow and Ball, copying in solicitors at Rosenblatt and Brabners. The defendant wrote:

The defendant posted his email of 7 October on LinkedIn the following day Sunday 8 October 2023, labelling it " The Fantastic 4 " (who were identified by the defendant, who published their email addresses, as Messrs Howard, Other, Snow and Ball). The defendant wrote in the post:

On 11 October 2023, the defendant published a post on LinkedIn in which he identified himself as " Managing Director at Sitex Orbis Fraud Investigations " and claimed protection under the Public Interest Disclosure Act 1998. The defendant attached a statement headed " The Henchman ":

The defendant referred to Mr Howard planning to leave the business "next may" and said, " I plan that exit to be in a police vehicle ".

On 12 October 2023, the defendant published a statement on LinkedIn with the subject heading " Activities of Orbis Protect Limited and Concerns Related to Modern Slavery Scheme and Fraudulent Practices ". The statement is in the form of a letter which, from its content, appears to have been addressed to the SFO. The defendant accused Mr Other and Mr Howard of, among other matters, acting as " a catalyst for a modern slavery scheme and multiple counts of fraud ".

On 15 October 2023, the defendant published a post on LinkedIn in which he referred to his " £55 Million GBP Employment tribunal ", and described Mr Howard in the following terms:

In the same post, correspondingly adverse and derogatory comments were directed at Guy Other and Shaun Wilcock.

On 16 October 2023, the defendant published a post on LinkedIn in which he claimed to have been confronted by " Machete Mike " and wrote, " I wonder how Ben Howard would feel if people came up to him with machetes, he would call the police and it would be swiftly dealt with ", whereas the defendant said, " due to the amazing profiling work Ben and his gang have done on me to the police, they think I'm a loon ".

On 17 October 2023, the claimants' solicitors, Proskauer Rose, wrote to the defendant that by bringing a claim in the employment tribunal he had breached the Settlement Deed. The letter indicated that the Partner dealing with the matter was Dorothy Murray. In the same letter, Proskauer Rose wrote, " In addition, your lengthy and continued campaign of harassment against the Company and its employees are a breach of other terms of the Settlement Deed. We will write to you on this matter under separate cover. " In response, on 18 October 2023, the defendant published a post on LinkedIn stating:

In another post on LinkedIn published on 18 October 2023, the defendant wrote:

The defendant posted on LinkedIn a two-page letter to Ms Murray of Proskauer Rose, addressed to " Dorothy ", and headed " My New Dance Partner ".

On 19 October 2023, the defendant sent an email to Mr Howard, copied to Mr Wilcock, Ms Bond and two others. In the subject line the defendant wrote: " JR is back!!!!! " The defendant published it on LinkedIn the following day with a message to Proskauer Rose to " send me the worst you have. the most prolific assassin you have. Because your firm is at risk. defend it ". In the email to Mr Howard, the defendant wrote:

In a LinkedIn post on 21 October 2023, the defendant published a lengthy update in which he claimed he would be " pushing for a figure around £150Million GBP " and claiming, " It's actually a £205Million GBP suit you are trying to defend… "

On 30 October 2023, the SFO informed the defendant they would not be launching an investigation. On 3 November 2023, he posted on LinkedIn a photograph of himself outside the SFO with the message:

On 13 November 2023, the defendant sent a direct email to Mr Howard and Mr Wilcock, copied to Ms Bond and one other. With reference to a hearing before the employment tribunal the next day, the defendant wrote:

The defendant called Mr Howard a " little wet blanket ", said he would be " pulling down Ben Snows and Andy Balls pants in court ", and that " Grant Thornton have been investigating you for months due to me (lol) ". The defendant wrote, " I told you from day 1 this goes all the way and did you listen. Nope! "

On 15 November 2023, the defendant sent an email to Mr Howard and Mr Snow, copied to Ms Bond and another, in which he asked " Having fun yet chaps? ", told Mr Snow to " just continue on being the pussy you are ", and asserted " I have more than enough to send you all to jail ".

The same day, the defendant posted on LinkedIn " Lets reflect on wee dotty ", alleging " you are acting for people who did order a murder so maybe your incompetence is what they deserve ".

On 16 November 2023, Proskauer Rose sent a letter before claim in respect of this litigation, alleging harassment and breaches of contract. The defendant responded by email the same day to Ms Murray, copying in Mr Howard and Mr Snow:

On the same day, the defendant published on LinkedIn a post presenting " tonight's feature performance… ", in which he described Mr Howard as " The Wet Blanket – Ben Coward (ORBIS) " and Mr Snow, Mr Ball, Mr Other, Mr Fordham and Mr Wilcock in similarly derogatory terms.

Also on the same day, the defendant responded to the letter before claim:

The defendant sent a further email to Mr Howard and 28 other recipients the same day, consisting of 13 lines of " ahaha… " then,

On 17 November 2023, the defendant sent a direct email to seven of the first claimant's employees, including Ms Bond, Mr Wilcock and Mr Fordham, but not Mr Howard, and copying the email to Ms Murray of Proskauer Rose. The defendant described Mr Howard as " pathetic ", alleging " he lies to you all about your futures ". The defendant also accused Ms Murray of corruption and incompetence. The same day he posted on LinkedIn four complaints to the SRA that he submitted, alleging that solicitors at Proskauer Rose helped to cover up murder, modern slavery, fraud and extortion. The defendant's LinkedIn post made clear that he thought his complaints against the claimants' solicitors would result in them being conflicted and having to recuse themselves.

On 20 November 2023, the defendant sent Ms Murray an email which he published on LinkedIn in which he referred to the:

The defendant included a hyperlink to a vacancy for a customer assistant at Morrisons, and suggested to Ms Murray that it " may be of interest to you very soon ", and " trust me it is better that you bow out now because it will move up a notch soon and not be enjoyable to participate in ".

On 9 December 2023, the defendant sent an email to Mr Howard:

On 10 December 2023, the defendant posted on LinkedIn a statement that " this will be my last communication for a while ". Contemporaneously, he sent an email to Ms Murray claiming that his alleged campaign of harassment " is now over ". The defendant wrote to Ms Murray, " I've made you answer to me, and you all failed miserably " and he threatened " … from now you get ruthless, vicious and business JR… "

The defendant removed his posts regarding the Orbis group, and its employees from LinkedIn, but in a letter to Ms Murray dated 13 December 2023, the defendant wrote, " I reserve the right to pick up where I left off as the Lord Mayor of Crazy Town and if need be will take great pride in breaking any injunction ".

On 28 December 2023, the defendant published on LinkedIn:

Beneath these words, labelled " The OCG " and " 'The Ridiculous 6' ", the defendant published photographs of six named (and nicknamed) individuals, including Mr Howard. Several subsequent posts published the same day included photographs labelling solicitors and others as " Enablers " of " The OCG ", and derogatory profiles of Messrs Howard, Snow, Wilcock and Fordham. For example, the defendant's profile of Mr Howard included a photograph of him, listed various directorships and qualifications, then stated:

Perverting the course of Justice

Misrepresentation

identity theft

Operating a fraudulent business

Obtaining corporate finance by submitting fraudulent accounts

Modern slavery

HIV discrimination

OCG founder

Failure to prevent Fraud

Corruption sponsor

SIA non front line license holder and several crimes under PSIA 2001"

In further posts on LinkedIn on or about 31 December 2023 or 1 January 2024, the defendant again published excerpts from the covertly recorded Teams call with Mr Howard on 14 February 2023, repeatedly referring to him as " Ben Coward " and accusing him of perjury.

On 1 January 2024, the defendant sent an email to Messrs Howard, Fordham, Wilcock, Snow, Ball and Other, copied to eight others, including Ms Murray, addressing them as " Ladies ", and stating:

On 2 January 2024, the defendant posted on LinkedIn a letter addressed to Police Scotland, the Serious Fraud Office, the National Crime Agency, the Solicitors Regulation Authority, the Financial Conduct Authority and the Security Industry Authority, with the subject " Serious organised crime activities by an OCG I call 'The Ridiculous 6' ". The defendant named Messrs Howard, Other, Ball, Snow, Wilcock and Fordham, alleging their involvement in " a web of extortion, corruption, murder and continuous wrongdoing ".

The defendant published more than a dozen further LinkedIn posts over the course of 3-10 January 2024, in a similar vein, including excerpts from the covertly recorded Teams call, and accusing the claimants of arson.

There can be no doubt that this constitutes a " course of conduct " for the purposes of the 1997 Act. The defendant's activities consisted of sending emails and publishing numerous posts on LinkedIn. The emails and posts over the course of the period from 3 February 2023 to 10 January 2024 were targeted, most obviously at those the defendant labelled " the Fantastic 4 " and " the Ridiculous 6 ", that is Messrs Howard, Other, Ball, Snow, Wilcock and Fordham, but also at others such as Mr Ramsey, Mr Mann and Ms Bond. The messages were closely linked by their character, tone and subject matter. Although the defendant denies harassment, he himself described what he did as a " campaign " and " a promotional tour to show these organisations what I am capable of " (paragraph 120 above).

The only question may be whether the course of conduct began in February 2023, given the break of several months before the defendant resumed emailing and posting in August 2023. In my judgment, the February messages are part of the course of conduct. That is because the character of the messages is consistent, despite the gap in time, as was the way in which the defendant used direct emails and LinkedIn posts, and because the defendant's conduct in covertly recording the Teams call on 14 February 2023 was used on numerous occasions in his LinkedIn posts later that year and in early 2024. In any event, it would be of no consequence if the course of conduct began in August rather than February 2023.

Did the defendant's course of conduct amount to harassment?

Leaving aside, at this stage, the defences that he relies on, the defendant's responses to the contention that his course of conduct amounted to harassment were, first, that his posts were published into his " echo chamber " in which he had very few followers; secondly, Mr Howard and those he represents did not see his messages because they were quarantined; thirdly, he contended that many of his allegations were merely directed to " cartoon characters "; and, fourthly, he claimed that what he wrote was true. The evidence and submissions regarding the impact on Mr Howard – and in particular, the defendant's contention that he suffered no alarm or distress – go to damages, and I address them in that context.

The " echo chamber " point is of no relevance to the defendant's emails which were sent directly to those he targeted. The defendant's evidence as to the extent of publication of his LinkedIn posts was not consistent with his contemporaneous posts, and it was a nonsense for him to claim that he effectively used LinkedIn as a way of making notes for himself. The defendant's posts were clearly address to an outside audience. He encouraged others to " like, comment and share " his posts. On 3 October 2023, he stated that he had built a list of contacts on LinkedIn; four days later he asserted that " Today I have 740 connections, over 100 of them are fairly important figures in the media and press "; and on 13 December 2023 he said he had " a reasonable following on LinkedIn ". Given the nature of LinkedIn as a professional network, it is likely that many of the defendant's connections would have been professional contacts working in the same industry as the claimants. The defendant's posts were published in an online public forum, not into an " echo chamber ", whatever he may have meant by that phrase.

In any event, the extent of publication of his LinkedIn posts is of little relevance in the context of this claim for harassment. What matters is that by publishing them on a public professional networking site online, his posts were designed and liable to come to the attention of those the defendant targeted. It is clear from Mr Howard's unchallenged evidence that the posts did, in fact, come to his attention. The defendant submitted that Mr Howard was not on LinkedIn. That was not his evidence: Mr Howard's unchallenged evidence was that he does not " actively use LinkedIn " but many of his colleagues and professional contacts do, and Orbis, Synova and NorthEdge all have corporate profiles on LinkedIn. He did not need to be an active user of LinkedIn to be aware of the defendant's LinkedIn campaign.

The " quarantine " point derives from the fact that on 11 September 2023 Mr Howard sought advice from Fleishman Hillard, a communications firm, on an appropriate message to send staff in light of the email that the defendant had sent to them that evening (see paragraph 90 above). Mr Howard said, " We will look to block him from contacting staff directly by email. " Fleishman Hillard advised Mr Howard that it would be preferable if the defendant's emails could be " quarantined so we can still see what John is saying without the team receiving those emails ". The claimants quite properly took steps to protect staff by quarantining the defendant's emails. But Mr Howard, as the CEO of Orbis, could not be protected from the defendant's emails, as he needed to be aware of what the defendant was writing about (and to) the Orbis group, its officers and staff. He plainly had read the defendant's emails, and he was not challenged on his evidence that he had seen them. Further, the quarantine point is only of any relevance in respect of the emails as the claimants had no ability to " quarantine " the defendant's LinkedIn posts.

There is no merit in the defendant's repeated contention in cross-examination that the caricatures he posted on LinkedIn merely involved him making allegations against " cartoon characters ", and that no one would have known that they related to any human being. Just as it was obvious that " John MR Optosafe Robertson " was a reference to the defendant, John Robertson – and he did not contend otherwise – so, too, the identity of the other individuals the defendant caricatured was also obvious, not least to those who were targeted, their colleagues and professional contacts, even before the defendant himself expressly drew the link. The alterations to their names were transparent and did nothing to disguise the identity of those against whom the defendant made allegations. When the defendant first published the caricatures, he did so in a post in which he had referred to Brabners, Synova and a company that Mr Other was associated with, very shortly after he had posted excerpts of the Teams call with Mr Howard.

Although the defendant claimed his allegations were true, there were many that he could not even attempt to justify having made. For example, the defendant publicly accused Messrs Howard, Snow, Other, Wilcock, Mann and Ramsey of having committed offences contrary to s.22 of the Sexual Offences Act 2003. That section is an interpretation provision concerning abuse of trust in respect of sexual offences against children. The defendant does not contend there is, or that he has ever had, any basis whatsoever for accusing any of these individuals of any sexual offence, still less any offence involving children.

The defendant's explanation was that as a result of an answer generated by artificial intelligence, he believed that the (alleged) " releasing of my HIV was covered under the sexual offences act ". Nothing in his post in which he accused them of the commission of such offences would have indicated to the reader that his allegation concerned the alleged failure properly to protect information as to his HIV positive status. The defendant claimed repeatedly in evidence that there is not, in fact, any such legislative provision as s.22 of the Sexual Offences Act 2003. He had made the same assertion in correspondence when telling Ms Murray that " so far 3 top grade UK law firms have missed" that this legislation "simply does not exist ", telling her that it " holds as much water as me saying I allege that Dorothy from Proskauer Rose has breached the Crap lawyers Act 2023 ". The defendant's hubristic belief was unfounded. Section 22 of the Sexual Offences Act 2003 is on the statute book, and is in force, as would have been apparent to the defendant if he had taken the trouble to look up the statute and the provision he cited before accusing others of such serious crimes.

The defendant posted on LinkedIn that Proskauer Rose were " acting for people who did order a murder " and accused Messrs Howard, Other, Ball, Snow, Wilcock and Fordham of involvement in murder. Again, this is a baseless allegation. It appears to stem from the fact that a man called George McMillan, who had a link to Orbis via a subcontractor, was convicted of murder. Orbis had a contract with Police Scotland and provided them with a list of all subcontractors they would be using. The list included Style Builders, which was Mr McMillan's business. At the time when the list was presented to Police Scotland, for them to vet, the director was Mr McMillan's mother. She then resigned and Mr McMillan became a director. Orbis duly notified Police Scotland of the change of director. If Police Scotland had undertaken further vetting checks, they would likely have picked up that Mr McMillan had a criminal record. Subsequently, Mr McMillan was arrested and later convicted of murder. There is no evidence of any wrongdoing by the claimants, or any of the individuals accused by the defendant, in relation to this matter, and the defendant has manifestly never had any basis whatsoever for accusing any of them ordering, or being complicit in, a murder.

As regards alleged fraud, it is clear that the defendant entered into the Settlement Deed having taken independent legal advice, and having been advised by Mr Howard to postpone his resignation because by leaving when he did the " bad leaver " provision resulted in him receiving less for his shares than would have been the case if he had remained until after NorthEdge's partial exit and Synova's investment. Mr Howard ensured that the defendant was in fact paid £200,000 more than he would have been contractually entitled to receive for his shares. In the Teams call on 14 February 2023 the defendant agreed that Mr Howard tried to get him to stay, and he told Mr Howard and Ms Bond that his lawyers advised him " not to sign it " because it was a " horrible deal ". He nevertheless chose to sign it.

The defendant has reported numerous allegations against Mr Howard and others to the Police, the SFO, the FCA, the SIA, the Procurator Fiscal and the Information Commissioner's Office (ICO) over the course of several years since early 2023. The claimants have only been contacted by the ICO, who confirmed after review, as Mr Howard explained, that " we had complied with everything we needed to, from the many DSARs that Mr Robertson has given to us ", and by the SIA who found no breaches save for some signage at one of Orbis' properties which needed to be, and was, taken down. Mr Howard said, " I can only assume Mr Robertson hasn't been able to provide any of those organisations with any shred of evidence ". He has categorically denied any wrongdoing, civil or criminal.

Nevertheless, in circumstances where some of the investigations appear to be open, I approach the question whether the defendant's course of conduct amounted to harassment on the assumption that some of the matters he has raised may have a factual foundation. Even if that is so, a review of the emails that the defendant sent, and the posts that he published, as detailed above, leads inexorably to the conclusion that his course of conduct amounted to harassment. His course of conduct had all the additional elements of oppression, persistence and unpleasantness which render a plea that his allegations are true insufficient to avoid the conclusion that it amounted to harassment.

The defendant's LinkedIn campaign, combined with direct emails, bears all the hallmarks of a course of conduct amounting to harassment. The volume of messages and posts was high. In just over five months from August 2023 the second claimant, and the others targeted by the defendant, were bombarded with about 80 messages, many of them lengthy. The posts were repetitive, with the defendant caricaturing individuals in the same way over and over again, and making the same allegations on numerous occasions.

The defendant's tone was frequently taunting and mocking (see e.g. " having fun yet ", " JR is back!!!!! ", " showtime ", accusing Mr Howard and others " pissing your pants ". and the caricatures). His messages were often aggressive, threatening and designed to cause distress and anxiety (see e.g. " I'm coming after you and it will not go away "; " JR is coming for you "; " I will show your families the same respect, none "; " Today is the day you find out who I really am "; " I'm just letting you know what lies ahead till midnight Sunday "; and " Who you all need to scared of is my followers ").

As the defendant himself recognised when saying, with reference to Mr Howard, that " never in the history of the world has anyone taken such abuse online ", the defendant's posts were frequently abusive. His messages were littered with bare insults (e.g. " coward ", " liar ", " criminal ", " crooked ", " wet blanket " and " pussy "). He made vulgar assertions that he knew to be untrue for no other reason than to be provocative and cause distress (see e.g. paragraph 117 above).

Did the defendant know, or ought he to have known, that his conduct amounted to harassment?

Having seen the defendant over the course of the trial (and pre-trial review), making submissions, cross-examining and giving evidence, and having considered the extensive contemporaneous evidence, my assessment is that the defendant knew that his conduct amounted to harassment.

The defendant was warned by Brabners on 6 February 2023 that his conduct constituted harassment, in a letter in which they pointed out the aggressive and threatening nature of the words he had used. In the Teams call on 14 February 2023, the defendant said that his own lawyer " demanded " of him " stop the LinkedIn. Stop this now because it's gonna be horrible for me explaining in front of a judge. So stop. Which I have done. " The defendant said, " after this call, as I say, I'm downing tools with all that stuff ", which he did for several months. Mr Howard told the defendant on that call that he had to protect employees and that " anything that can be deemed harassment or anything like that, again I have to act up. " The defendant responded, " Yeah, I know. " Mr Howard asked the defendant on that call to desist, and the defendant's responses show he understood his behaviour had been harassing.

The defendant did not lose that insight into his conduct when he began harassing Mr Howard and others again in August 2023, and he was told on 17 October 2023, by Proskauer Rose, that his conduct constituted a campaign of harassment.

The language used by the defendant shows his understanding that his conduct was likely to have an adverse impact on those he targeted (see e.g. " How much does it suck to be you right now? "; " I should have been arrested and very heavily cautioned " (for his own email of 7 October 2023); " I have been collectively embarrassing these people for months via social media "; he expressed his awareness, when writing to Orbis staff, that his email would be likely to prompt a " claim I'm trying to harass the staff and cause distress etc etc etc "; and noted that he had subjected Mr Howard to " such abuse online "). The defendant knew that the nature of his conduct was such that he was liable to be injuncted. Indeed, he tried to goad those he targeted into taking action against him (see e.g. his pleas to " Hit me ", his references to awaiting a " gagging order " and to having had to " come up with a plan "; and his claim that his plan had " always " been for Mr Howard to " serve me with an injunction ").

The detrimental impact was deliberate. The defendant's primary aim was to obtain vengeance by punishing those he perceived as having wronged him (see e.g. " i will not stop until every single one of them pay "; " I will never give up till this is done "; " you will pay for that mistake "; " your mistake was underestimating me "; " I bet … you never thought I was capable of this, you are about to find out the consequences of your actions "; " I am Relentless as you have seen "). Forcing the claimants to take him to court, by engaging in a relentless campaign of harassment, was itself a means that the defendant used to exact retribution, as is evident, for example, from his expressed disappointment that Proskauer Rose's estimated costs undervalued how much trouble he would cause their client (see paragraph 106 above).

The defendant relished what he regarded as his " god like power " over the claimants. He delighted in accusing " numerous people … of heinous crimes " and in making up what he described as " a wee very derogatory statement " about Mr Howard. He toyed with those he targeted by stating, on many occasions, that he was " standing down [his] assault " (or words to similar effect), removing his LinkedIn posts, and would allow the law to take its course, only to then resume his campaign, often just days later. This behaviour, together with the many occasions (often timed for the weekend) on which his posts foreshadowed unspecified matters that he would be disclosing or reporting in the next day or two, was manifestly a deliberate ploy to maximise the anxiety caused by his conduct.

In cross-examination, the defendant apologised for his email of 16 November 2023 to Ms Murray (paragraph 117 above). Save for a couple of admissions that an email or post was unpleasant or would have made the recipient feel uncomfortable, the defendant did not accept that the numerous posts and emails to which he was taken were unreasonable, oppressive, threatening, aggressive, taunting or unpleasant. However, as I have said, he often evaded the question by asserting, for example, that the targets were " cartoon characters ", or that no one read his emails, or that Mr Howard's claim to have been distressed was " theatre ". For the reasons I have given, my assessment is that the defendant deliberately engaged in a campaign of harassment against Mr Howard (and others), and he knew full well that his campaign was persistent, oppressive and unreasonable, often including posts and emails that were taunting, threatening aggressive, unpleasant and abusive, and that it amounted to harassment.

In any event, it would suffice to meet this criterion if the defendant ought to have known that his conduct amounted to harassment. If, contrary to my conclusion, I had found that the defendant did not know his conduct amounted to harassment, I would, in any event, have had no hesitation in concluding that a reasonable person in possession of the same information as him (as outlined above) would think the course of conduct amounted to harassment of Mr Howard (and others). Therefore, the defendant ought to have known his course of conduct amounted to harassment.

The s.1(3)(a) defence: preventing or detecting crime

As explained above, the burden is on the defendant to establish that he pursued the course of conduct that I have described for the purpose of preventing or detecting crime. He must show that he thought rationally about the material suggesting the possibility of criminality, formed the view that the conduct said to constitute harassment was appropriate for the purpose of preventing or detecting it, and that was his dominant purpose.

In the Amended Defence, the defendant asserted that " his communications and actions " were for the legitimate purpose of exposing " serious criminal activities being undertaken by C1, C2 and other associated individuals and entities " (as well as for the purposes outlined in respect of the s.1(3)(c) defence).

The defendant's evidence was that his LinkedIn post on 3 February 2023 in which he described " a serious and complex fraud ", without naming individuals, " marked the beginning of my effort to expose what had taken place ". The only occasion in his oral evidence when the defendant asserted that he had sent and published a communication " to prevent crime " was when he was taken to his 10 September 2023 post, attaching an email to numerous individuals at Synova (paragraphs 86-88 above).

In cross-examination, the defendant acknowledged that he did not publish his LinkedIn posts on 4 August 2023 (paragraphs 69-75 above) or 9 September 2023 (paragraphs 84-85 above), in which he made his most explicit allegations of crimes contrary to various identified Acts, for the purpose of preventing or detecting crime, claiming these were merely cartoon characters. When it was put to him that he did not publish his 24 August 2023 post (paragraph 80 above) for the purpose of preventing or detecting crime he did not disagree. His answer to the same question in respect of the post published on 15 October 2023 (paragraph 104 above) was " I'm posting it to my echo chamber ".

The defendant did not otherwise address in his witness statement or oral evidence his thought process. He gave no evidence capable of founding a conclusion that he thought rationally about any material that might suggest the possibility of criminality and formed the view that his email and LinkedIn campaign was appropriate for the purpose of preventing or detecting crime. In my judgment, he clearly did not do so, but has sought subsequently to latch onto a potential defence.

In any event, the defendant has failed to satisfy me that his predominant motive in acting as he did was to prevent or detect crime. On the contrary, it is readily apparent that his predominant purpose was retaliation, with the aim of punishing those he believed had done him wrong. His secondary motive was to compel his former employer to re-open the Settlement Deed. He was advised that in the absence of fraud that was not possible, and so he alleged fraud. Although the defendant claimed in cross-examination, " It's never been about money ", and I find his primary motivation was revenge, it is readily apparent from the increasingly extraordinary amounts he claimed, and his efforts to make the litigation more costly for the claimants, that one of his aims was financial.

The section 1(3)(c) defence: reasonableness

In the Amended Defence, the defendant asserted that " his communications and actions " were reasonable in the circumstances because they constituted investigative journalism and because he acted as he did for the legitimate purpose of encouraging whistleblowers to come forward. In his witness statement, the defendant asserted that his " disclosures were grounded in evidence, made in the public interest, and supported by documentation "; and he described his actions as whistleblowing.

In cross-examination, the defendant asserted that his post of 24 August 2023 (paragraph 80 above) was whistleblowing and investigative journalism on the basis that if he had gone " to the papers with this, it would have been reported on ". When it was put to him that his post of 9 September 2023 (paragraphs 84-85 above) was not reasonable, he responded " this is directed to a cartoon character "; " this is a caricature in my own echo chamber going absolutely nowhere ". Nonetheless, he also asserted that it was whistleblowing and investigative journalism because he had " broadcast the fact that there's a fraud going on " in a " £130 million company ", which he said was " quite newsworthy ". The defendant stated that his post of 10 September 2023 (paragraphs 86-88 above) was investigative journalism, whistleblowing and that it was " proportionate to getting whistleblowers to come forward ".

Similarly, in respect of his 30 September 2023 post (paragraph 96 above), he said that it was posted into his " echo chamber " which he used as a " sort of note app ", while claiming that it prompted other whistleblowers to come forward and it was a way of communicating with others with similar life experiences as the algorithm would connect him with others who had been victims of fraud. In respect of his 15 October 2023 post (paragraph 104 above), when it was put to him that this was not whistleblowing the defendant responded that he was merely " posting into an echo chamber ", nonetheless he claimed that it was investigative journalism.

The defendant described what he was doing in his email of 3 February 2023 and his posts of 16 October and 28 December 2023 as " basically venting " (paragraphs 64, 105 and 124-125 above). The defendant did not seek to defend his post of 4 August 2023 (paragraphs 69-75 above) as whistleblowing or investigative journalism, saying rather that " these are cartoon caricatures that are posted in my own little echo chamber " and that he was " venting on caricatures that mean nothing to anyone, that no one's seen, in an echo chamber ". When it was put to him that his email of 11 September 2023 (paragraph 90 above) was not whistleblowing or investigative journalism, the defendant said that it was " a cry for help ", and he disagreed that it was unreasonable or oppressive. When asked about his post of 11 October 2023, the defendant said, " I can't speak for my intentions at the time. It's a long time ago. "

In my judgment, the defendant's reliance on the s.1(3)(c) defence has no merit. For the reasons that I have given in addressing the question whether the course of conduct amounted to harassment, I consider that the overwhelming picture is of a wholly unreasonable campaign targeted against Mr Howard and others. Even if the defendant perceived some of his posts as whistleblowing or journalism, the way in which he acted, by relentlessly posting on a public forum in vitriolic terms, as well as sending many emails to his targets, was not reasonable in the circumstances.

Conclusion: harassment claim

Accordingly, the second claimant has established his claim for harassment, in his own capacity and as a representative claimant.

Final Injunction

The first claimant has succeeded in its claim for breach of contract both in respect of the Non-Representation and Non-Disparagement Clauses. The Court will readily compel the observance of negative obligations in a contract, including in an employment contract, by injunction: see Attorney General v Blake [2001] 1 AC 268 , 282F and Attorney General v Barker [1990] 3 All ER 257, 260b-c.

The defendant has complied with the positive obligation in paragraph 5(b) of the interim injunction to change the name of Sitex Orbis Fraud Investigations Ltd, so no such obligation is required to be repeated in a final injunction. But his behaviour, and vain efforts to argue that his insertion of a space between Sitex and Orbis eradicated the association with the Orbis group, and that referring to himself as " Mr Optosafe " merely indicates a past association, demonstrate that if the injunction were removed the defendant would engage in further breaches of the Non-Representation Clause. I conclude that the first claimant should be granted a final injunction to enforce compliance with the Non-Representation Clause, as well as the Non-Disparagement Clause. Paragraphs 4(a) and 4(d) of the interim injunction prohibit the defendant from acting in ways which would be in breach of the Non-Representation and Non-Disparagement Clauses. Those provisions remain necessary and should be incorporated into a final injunction.

The second claimant has succeeded in his harassment claim. At the end of his closing submissions, the defendant offered an undertaking to Mr Howard alone. That offer was too little, too late. Paragraphs 4(b) and (c) of the interim injunction prohibit the defendant from acting in a way which would constitute further harassment of the second claimant (and those of whom his situation is representative). At a minimum, it is clearly necessary to include those provisions in a final injunction, not least having regard to the fact that the defendant clearly considers his conduct to have been justified, and bearing in mind the way he has acted since the interim injunction was imposed.

However, on behalf of the claimants, Mr Barnes submits that the final injunction should be widened by the removal of the caveat in paragraph 6(b) of the interim injunction which states:

Mr Barnes submits, first, that the caveat is no longer necessary. The defendant has had plenty of time to make all the complaints to regulators and public bodies that he could conceivably wish to make. As set out in Schedule 2 to Mr Howard's third statement, the defendant has reported the claimants (including some of those of whom Mr Howard is representative) on at least 20 occasions, to the SFO, Police Scotland, the FCA, the Procurator Fiscal, East Ayrshire Council, the SIA, the NCA and Nottinghamshire Police (including multiple reports to many of those bodies). Secondly, Mr Barnes contends that if the caveat is allowed to remain, the defendant will use it to continue his campaign of harassment.

In support of the latter proposition, the claimants submit that the defendant's behaviour since the interim injunction shows that, while for the most part he complied with the interim injunction, at the same time he continued his harassing conduct by re-manoeuvring to focus his attention on individuals and companies connected to the claimants but not themselves protected by the interim injunction. Mr Howard explained that the defendant has targeted (among others):

Mr Howard has given detailed and unchallenged evidence of the defendant's conduct in relation to each of these companies and individuals. In cross-examination Mr Howard said, when referring to the defendant's reporting of the claimants' accountants, Grant Thornton, to the ICAEW, " I think his motivation is to try and continue to make me and the company toxic, that people don't want to be associated with us, because it's just too difficult ".

In my judgment, the defendant has continued his campaign by focusing on connected individuals and companies that are not protected by the interim injunction. I consider it unnecessary to detail his conduct towards each of these individuals, companies and firms. It is sufficient to outline some of his conduct towards the claimants' current solicitors, and in particular towards Ms Murray.

The defendant has filed at least 13 complaints with the Solicitors Regulation Authority (SRA) about fee earners of Proskauer Rose, eight of which relate to Ms Murray (many of which he has posted on LinkedIn). He has also sought to refer Ms Murray to the Solicitors Disciplinary Tribunal and has threatened claims against Ms Murray and Mr Hadfield personally. This is part of a pattern. He has also referred solicitors from Brabners and Rosenblatt to the SRA.

I have already referred to some of the defendant's communications with Ms Murray. The way he has behaved towards her has been particularly vile and misogynistic. For example, the defendant referred to Ms Murray as " wee dotty ", " a little girl ", his " work wife ", " wifey "; and told her she should " get your hair done ", book in " for a cut and blowdry ", referenced " our 1 year anniversary " and said (with respect to her LinkedIn profile) " loving the red look btw ". The defendant constantly derided Ms Murray's professional ability (e.g. calling her a " rank amateur ", " unprofessional ", " incompetent ", " dumb ", " idiot "; grading her work and writing " Back to school for you !"), condescendingly offered to " educate " or " mentor " her, and repeatedly suggested her next job should be as a cleaner or shop assistant. The defendant has also regularly accused Ms Murray of professional misconduct, lack of ethics and morals and threatened her (e.g. " Your career will be tarnished… " " Dorothy, your career is headed for the toilet ", " you are probably one of the worst lawyers ive ever had the misfortune of enduing [sic] their careers, but I will take great pleasure in ending yours as I hear there are vacancies at the local Morrison's near you" ).

On 16 January 2024, the defendant wrote to Ms Murray:

He then sent emails to the school of which she is a governor, on 16 and 19 January 2024, alleging (among other matters) that she " has connections to sponsors of modern slavery ", is involved in " supporting racism and individuals with criminal intent " and " may support individuals involved in paedophilia ".

In cross-examination, the defendant acknowledged that his emails to the school of which Ms Murray is a governor were retaliatory, designed to drive a wedge between her and the school, and intended to cause her to reconsider whether she could continue carrying out her professional duty by representing the claimants. The defendant said, " I agree that there's no excuse for this, so I apologise ". While the defendant apologised on a couple of occasions for specific communications to or about Ms Murray, there was no acknowledgement nor apology for the fact that the entirety of his conduct towards her over a prolonged period was reprehensible.

In my judgment, the defendant sought to find means to continue his campaign of harassment against Mr Howard and others which were not precluded by the terms of the interim injunction. To this end, he has used the caveat which enables him to make complaints and reports to the police, regulators and other public bodies, and he has sought to make it so unpleasant for solicitors, accountants, investors and others to retain any connection with the claimants that they would drop them.

The defendant claimed that he has no intention of making any further complaints or reports to regulators, the police, the SFO or other such bodies. He insisted that when the current investigations, and the fresh claim which he filed recently, conclude, that will be the end of the matter. However, he has made repeated claims to the same effect over the years, none of which have proved true. In my judgment, it is necessary for the Court to act to prevent further harassing conduct by not including the caveat referred to in paragraph 169 above in the final injunction.

However, as discussed with Mr Barnes during the course of the hearing, it will be necessary to include wording which enables the defendant to provide a response in the event that any of the bodies to which he has submitted reports or complaints, and which have ongoing investigations, seek information from him.

Damages

The only claim for damages which is pursued is that made by the second claimant for harassment. The first claimant does not claim damages in respect of the breaches of contract and nor is any claim for damages for harassment made by those whose position is represented by the second claimant.

Damages for harassment under the 1997 Act are to compensate a claimant for distress and injury to feelings: ZAM v CFW [2013] EWHC 662 (QB) , [2013] EMLR 27 , [59] (Tugendhat J). It is well established that in determining the amount to award in claims under the 1997 Act, the courts may draw on the so-called Vento bands for compensation for injured feelings: Chief Constable of West Yorkshire v Vento (No.2) [2002] EWCA Civ 1871 , [2003] ICR 318 . Those guidelines were formulated, and apply directly, in employment discrimination cases. In assessing damages for harassment, I bear in mind that compensation for discrimination necessarily involves an award for the humiliation of being treated differently on impermissible grounds, which is not a necessary feature of a harassment claim.

The claimants' skeleton refers to the figures as updated for inflation by the Eighth Addendum to the Presidential Guidance originally issued on 5 September 2017. However, having regard to the date of issue of this claim, the relevant Vento bands are those given in the Sixth Addendum published on 24 March 2023:

i) £1,100 to £11,200 (less serious cases);

ii) £11,200 to £33,700 (cases that do not merit an award in the upper band); and

iii) £33,700 to £56,200 (the most serious cases), with the most exceptional cases capable of exceeding £56,200.

The defendant contends that Mr Howard has suffered no distress. In part this contention is based on his submission that Mr Howard did not see the LinkedIn posts because he was not on LinkedIn and did not see the emails because they were quarantined. For the reasons I have given, I have found that Mr Howard saw the posts and emails around the time they were sent and published.

The defendant also bases his submission on two aspects of the evidence regarding Mr Howard's reaction. The first is that on 11 September 2023 Mr Howard sought advice from a communications consultancy, Fleishman Hillard, on an appropriate message to send to staff, and was advised to send a short message to the recipients of the email saying " sorry you're receiving these messaging, I know they can be disconcerting ", and advising them not to engage with the defendant or his posts. The defendant contends that Mr Howard's response shows that he was not distressed, he was merely engaging in a " public relations exercise ".

The second matter the defendant relies on is Mr Howard's behaviour following the report that Mr Howard made to the West Midlands police about the defendant's conduct on 12 October 2023. A police investigation report records that the officer in the case subsequently made several attempts to contact Mr Howard, and left messages, but these were not responded to and so the investigation was closed. [3] The defendant contends that giving a statement to the police was a performative act.

In cross-examination, Mr Howard explained that he reported the matter to the police, and made a statement to them, because there had been several things that he and his family had " found particularly threatening, and physically threatening ". One was the posting of the Settlement Deed with his wife's name partially visible, and her occupation and their postcode fully visible. Although they had in fact moved house, Mr Howard believed that the defendant would not have known that. He found it particularly threatening that these details were published only a few days before the defendant posted on LinkedIn:

(See paragraphs 97 and 100: " I will show your families the same respect, none. " " Who you all need to be scared of is my followers. ")

Mr Howard said:

Mr Howard said that he spoke at length to someone at his local police station and explained his purpose in reporting the matter. He found it rather frustrating that about a week later an officer followed up and asked, " What would you like us to do? " He said he repeated his motivation for notifying the police, so that they were aware if the matter escalated. He was contacted again about a week or 10 days later and informed the matter had been passed to Police Scotland because that is where the defendant was living. Mr Howard did not recall West Midlands Police contacting him again and leaving voice messages. He acknowledged that they may well have done, but that would have been after he had given a statement, twice explained his reasons for contacting them, and the matter had been passed to Police Scotland.

The defendant challenged Mr Howard's evidence that he felt physically threatened by him. The defendant placed heavy reliance on the transcript of the hearing before Chamberlain J which shows that, after referring to the message regarding machetes (paragraph 105 above), Mr Barnes said, " Let me be fair to Mr Robertson. There is not an allegation of any sort of physical element to this. " Mr Howard responded in cross-examination:

In my judgment, Mr Howard is a strong, resilient character who was able to cope better than many might have done with the defendant's harassing conduct. Nonetheless, it is clear to me that his evidence of his distress and fearfulness for his family above all, as well as for himself, was sincere. His instruction of Fleishman Hillard is not inconsistent with this finding. Mr Howard was the CEO of Orbis, with responsibility towards members of staff who had received a disturbing email from the defendant. It was natural for him to seek advice on how to reassure and protect his staff. Nor was there anything disingenuous about his report to the police. Someone else in his position might have pressed for the defendant to be charged or cautioned. The fact that Mr Howard sought only to ensure the police were informed in the event the defendant's conduct escalated is not evidence that his action was performative. It shows only that he was measured in his response and sought to avoid action that might trigger worse behaviour from the defendant.

Mr Barnes' acknowledgement before Chamberlain J that there was no " physical element " meant no more than that there was no suggestion of any physical assault, and no physical interactions with the defendant were relied on by the claimants. In the statement that he relied on before Chamberlain J, Mr Howard had explained that there is " an underlying threat of violence in some of his posts and messages ". His evidence to that effect has been consistent. In his third statement Mr Howard said (and I accept his evidence):

I have borne in mind the need to retain a sense of proportion when fixing the appropriate sum for damages. This is a serious case, but not so serious as to put it into the higher Vento band. In my judgment, an appropriate award to compensate Mr Howard for the distress and injury to feelings that he has suffered as a result of the defendant's harassment campaign would be £25,000.

However, I note that in the claim form the damages are valued at £10,000. CPR 16.3(7) provides that, " The statement of value in the claim form does not limit the power of the court to give judgment for the amount which it finds the claimant is entitled to. " In Harrath v Stand for Peace Ltd [2017] EWHC 653 (QB) , the claimant had issued his defamation claim for no more than £10,000, but he made clear that he was willing to pay any additional fee, if necessary, and Sir David Eady found that the appropriate award was £140,000 ([22]-[23]). As this was not an issue that was discussed during the hearing, I consider that the appropriate course is to give the claimants an opportunity to amend the statement of value in the claim form (and pay any additional court fee). If they do so, the award to the second claimant will be in the sum of £25,000. If they prefer not to amend, as may be the case if they are concerned about enforcement, the damages will be capped at the lower level of £10,000.

Civil Restraint Order

The law

The rationale underlying the making of a civil restraint order is that a litigant who makes claims or applications which have absolutely no merit harms the administration of justice by wasting the limited time and resources of the courts. Such claims and applications consume public funds and divert the court from dealing with cases which have real merit. There is a strong public interest in protecting the court system from abuse by imposing an additional restraint on their use of the court's resources: see Society of Lloyd's v Noel [2015] 1 WLR 4393 at [29].

A civil restraint order does not prohibit access to the courts. It requires a person who has repeatedly made unmeritorious claims or applications to have any new claim or application which falls within the scope of the order reviewed by a judge at the outset to determine whether it should be permitted to proceed: see Noel at [29]. Provided that the right of access to the court is not extinguished, the making of a civil restraint order is not contrary to article 6 of the European Convention on Human Rights. The court is entitled to regulate its affairs to protect its process and the interests of other parties against whom unmeritorious litigation is brought: see Ebert v Venvil [2000] Ch 484.

There are three types of civil restraint order. A limited civil restraint order restrains the party against whom the order is made " from making any further applications in the proceedings in which the order is made without first obtaining the permission of a judge identified in the order " (Practice Direction 3C, paragraph 2.2(1)). A limited civil restraint order may be made where a party has made two or more applications which are totally without merit (PD3C, paragraph 2.1).

Where an extended civil restraint order is made by a judge of the High Court, it restrains the party against whom the order is made from issuing claims or making applications in the High Court or the county court "concerning any matter involving or relating to or touching upon or leading to the proceedings in which the order is made without first obtaining the permission of a judge identified in the order" (PD3C, paragraph 3.2). An extended civil restraint order may be made where "a party has persistently issued claims or made applications which are totally without merit" (PD3C, paragraph 3.1). In Bhamjee v Forsdick (Practice Note) [2004] 1 WLR 88 Lord Philips identified at [42]:

If the precondition for an extended civil restraint order is met, the court has a residual discretion whether to make the order: paragraph 3.1 of PD3C provides that the court "may" make an order. In Noel , Lewis J gave the following guidance at [47]:

A general civil restraint order may be made "where the party against whom the order is made persists in issuing claims or making applications which are totally without merit in circumstances where an extended civil restraint order would not be sufficient or appropriate" (PD3C, paragraph 4.1). Where a general civil restraint order is made by a judge of the High Court, it restrains the party against whom the order is made from issuing any claim or making any application in the High Court or the county court, unless the court decides to make it less prohibitive, without first obtaining the permission of a judge identified in the order.

An extended civil restraint order or a general civil restraint order "will be made for a specified period not exceeding three years" (PD3C, paragraphs 3.9 and 4.9). The duration may be extended by a period no greater than three years on any given occasion (PD3C, paragraph 3.10 and 4.10).

Where an order of the court records that a claim or application was totally without merit, it is not necessary or appropriate for a judge who is subsequently considering whether to make a civil restraint order to re-examine that question ( Nowak at [67]). However, the court is not restricted to considering proceedings and applications where there was at the time an express finding of a total lack of merit. In Kumar [2006] EWCA Civ 990 , Brook LJ held at [67] to [68]:

In Kumar , Brooke LJ observed at [60] that the power to make a general civil restraint order:

The first question when considering whether to make an extended or general civil restraint order is whether the litigant has persistently issued claims or made applications which are totally without merit. Second, the court must ask itself what risk there is that if unrestrained or not further restrained where some form of civil restraint order has already been imposed, the litigant will issue further claims or make further applications which are an abuse of the court's process. Third, the court should determine what is the least restrictive form of order shown to be required. When determining whether to impose a general civil restraint order, this encompasses the question posed by paragraph 4.1 of Practice Direction 3C whether an extended civil restraint order would not be sufficient or appropriate.

Application to the facts

By an order dated 4 March 2025 (sealed on 6 March), Jay J certified that the defendant's application dated 1 February 2025 seeking Mr Howard's committal for contempt and, separately, his application dated 22 January 2025 to vary or discharge the interim injunction, were both totally without merit. Jay J observed that " Mr Robertson is actuated by a vindictive desire to pursue his objectives by whatever means he can and it is part and parcel really of the same campaign of harassment which at least on an interim basis was established in January 2024 ". That campaign of harassment has now been established following a trial and I agree with Jay J's observation that the defendant's conduct in the litigation was a vindictive continuation of the same campaign. Jay J made a limited civil restraint order. The defendant was refused permission to appeal against Jay J's order by Warby LJ on 3 November 2025.

By an order dated 1 July 2025 (sealed on 3 July), Master Armstrong certified that two separate applications for non-party disclosure, made by the defendant on 24 January 2025 against Grant Thornton and NorthEdge, were totally without merit. In my judgment, those applications were made with a view to making others (in this instance, an accountant and an investor) view the claimants and the Orbis group as " toxic " (as Mr Howard put it) because the defendant's actions made it so difficult to work with them. They were a continuation of the defendant's campaign of harassment.

On 5 November 2025, Warby LJ refused the defendant's application for permission to appeal against my order of 24 October 2025 (made by an Appellant's Notice dated 29 October 2025) and an application notice dated 5 November 2025 by which he sought to rely on fresh evidence, amended grounds of appeal and an amended skeleton argument. Warby LJ certified both sets of applications as totally without merit.

Mr Robertson's claim for constructive dismissal and discrimination was struck out by the Glasgow Employment Tribunal (EAT) on 7 February 2024. His appeal to the Employment Appeals Tribunal was dismissed and certified as an abuse of process and totally without merit on 30 September 2024. He unsuccessfully attempted to appeal to the Court of Session against the EAT's order.

It follows that, so far as I am aware, seven applications that the defendant has made have been formally certified as totally without merit.

In addition, the effect of the limited civil restraint order has been that some of the applications the defendant has made, which might otherwise have been certified as totally without merit, he has been refused permission to pursue. By an order sealed on 15 October 2025, Jay J refused the defendant permission to issue a witness summons against Mr Other or Mr Wilcock, observing the application " is made too late and has the flavour of being vexatious and oppressive ". On the first day of trial, I refused the defendant permission to apply to amend his Amended Defence, and in doing so made clear that I would, in any event, have refused the application and certified it as totally without merit: see Optosafe v Robertson [2025] EWHC 3393 (KB) . Further, in my order of 24 October 2025, I observed that the defendant's submission that an application made by the claimants should be certified as totally without merit was itself totally without merit.

This history shows that the defendant has persistently made applications which are totally without merit.

This litigation is now concluding and so the limited civil restraint order will imminently cease to have any protective effect. The defendant issued a claim against the first claimant, Orbis, Conic and Project Cube on 2 October 2025. In that claim he pursues various causes of action, including misuse of private information, negligent or fraudulent misrepresentation and rescission of the Settlement Deed. In light of the defendant's conduct over the past three years, I consider that, if unrestrained, there is a high risk that he will issue further applications, and a real risk he will issue further claims, which are an abuse of the court's process. Given the defendant's behaviour, the Court can have no confidence in his protestation that, once the current investigations and claim conclude, that will be an end of the matter.

What is the least restrictive form of order shown to be required? In my judgment, an extended civil restraint order would be inadequate. The defendant has used litigation as a means of continuing to harass Mr Howard and others. When certain means of harassing them are blocked, as they were by the interim injunction, the defendant has found other ways to continue his campaign by acting oppressively and unreasonably against those connected with Mr Howard. The defendant's conduct shows that there is a real risk of him bringing claims and applications which are an abuse of the court's process against others, such as the claimants' lawyers, accountants and investors, or public bodies and regulators, which in many instances would not be subject to the requirement of permission imposed by an extended civil restraint order.

Accordingly, I will impose a general civil restraint order on Mr Robertson for a period of three years.

Conclusion

The claimants have succeeded in establishing their claims for breach of contract and harassment. I will grant a final injunction and award damages to the second claimant for harassment. I will also make a general civil restraint order for a period of three years against Mr Robertson.

Note 1 Or “SitexOrbis”. Mr Howard did not know whether there was a space between Sitex and Orbis when it had been used in the names of Orbis group companies. [Back]

Note 2 Throughout this judgment, typographical errors within quotations reflect the original text. [Back]

Note 3 The West Midlands Police report indicates the investigation closed on 11 December 2023. In his first statement, dated 12 January 2024, Mr Howard stated his understanding that “ the case continues to be investigated ”. Although that appears to have been inaccurate, I accept that it was Mr Howard’s understanding at the time. [Back]