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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Totalise Plc v Motley Fool Ltd & Anor  EWCA Civ 1897 (19 December 2001)
Cite as:  1 WLR 1233,  WLR 1233,  CP Rep 22,  EWCA Civ 1897,  2 All ER 872,  FSR 50,  Masons CLR 3,  EMLR 20
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MR JUSTICE OWEN
London, WC2A 2LL
Wednesday 19th December 2001
B e f o r e :
LORD JUSTICE SEDLEY
LADY JUSTICE ARDEN
| Totalise Plc
|- and –
|(1) The Motley Fool Limited
(2) Interactive Investor Limited
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr P. Moloney QC (instructed by Dibb Lupton Alsop for the Respondent Totalise Plc)
Crown Copyright ©
Lord Justice Aldous:
"I have no hesitation in finding that the balance weighs heavily in favour of granting the relief sought. To find otherwise would be to give the clearest indication to those who wish to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the internet. It follows that I propose to make an order against both defendants in the terms sought by the complainant."
"In my judgment the situation that arises in such cases is very different from what could be described as the classic Norwich Pharmacal situation. I consider that there is considerable force in Mr Moloney's argument that those who operate websites containing discussion boards do so at their own risk. If it transpires that those boards are used for defamatory purposes by individuals hiding behind the cloak of anonymity then in justice a claimant seeking to establish the identity of the individuals making such defamatory contents ought to be entitled to their costs.
I have come to the conclusion that it was perfectly plain from the outset that the postings on both websites were highly defamatory and that, accordingly, the claimants were the victims of a sustained campaign amounting to an actionable tort. There was no other way in which the claimants could have proceeded, save by requiring identification of Zeddust from both defendants.
I accept that the defendants had to carry out the balancing exercise, but in my judgment there was only one answer to that balancing exercise, namely that they should have complied with the requests made by the claimant. In those circumstances, I order the defendants to pay the claimant's costs of this application/action."
The judge then summarily assessed the costs to be paid by Interactive at £4,817.
"But there may be other cases where there is much more doubt. The validity of the patent may be doubtful and there could well be other doubts. If the respondents have any doubts in any future case about the propriety of making disclosures they are well entitled to require the matter to be submitted to the court at expense of the person seeking the disclosure. The court will then only order discovery if satisfied that there is no substantial chance of injustice being done."
"Secondly, although in any case which was on all fours with this case or any subsequent case which may be decided, the commissioners or any other person who was asked for a name would no doubt give it without putting the applicant to the expense of obtaining an order of the court; in any case in which there was the least doubt as to whether disclosure should be made the person to whom the request was made would be fully justified in saying that he would only make it under an order of the court. Then the court would have the right to decide whether in all the circumstances it was right to make an order. In so deciding it would no doubt consider such matters as the strength of the applicant's case against the unknown alleged wrongdoer, the relation subsisting between the alleged wrongdoer and the respondent, whether the information could be obtained from another source, and whether the giving of the information would put the respondent to trouble which would not be compensated by the payment of all expenses by the applicant. The full costs of the respondent of the application and any expense incurred in providing the information would have to be borne by the applicant."
"6.- (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.
(2) The Secretary of State may by order specify particular circumstances in which this condition is, or is not, to be taken to satisfied."
(a) the party required to make the disclosure had a genuine doubt that the person seeking the disclosure was entitled to it;
(b) the party was under an appropriate legal obligation not to reveal the information, or where the legal position was not clear, or the party had a reasonable doubt as to the obligations; or
(c) the party could be subject to proceedings if disclosure was voluntary; or
(d) the party would or might suffer damage by voluntarily giving the disclosure; or
(e) the disclosure would or might infringe a legitimate interest of another.
Order: Appeal allowed; respondents to pay the appellant's costs here and below to be summarily assessed - below at £2,339.50 and in this court at £17,300; the costs already paid to be repaid within 28 days; summary costs to be paid within 28 days; permission to appeal to the House of Lords refused.