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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Hegglin v Person(s) Unknown & Google Inc  EWHC 3793 (QB) (14 November 2014)
Cite as:  1 Costs LO 65,  EWHC 3793 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| DANIEL HEGGLIN
|- and -
|(1) PERSON(S) UNKNOWN
(2) GOOGLE INC.
Antony White QC & Jonathan Scherbel-Ball (instructed by Pinsent Masons LLP) for the 2nd Defendant
Hearing date: 06/11/2014
Crown Copyright ©
Mr Justice Edis :
i) An application by the Claimant dated 30th October 2014 for a costs capping order or a costs management order and for some pre-trial directions. This is supported by a witness statement by the Claimant's solicitor, Mr. Ashley Hurst. The Second Defendant's solicitor has responded with a witness statement (the 4th statement of David Barker) dated 3rd November 2014.
ii) An application by the Claimant dated 31st October 2014 for an order that the Second Defendant should answer some Part 18 requests and give some further disclosure. This is supported by a witness statement by the Claimant's solicitor, Mr. Ashley Hurst (his 4th, dated 31st October 2014). The Second Defendant's solicitor has responded with a witness statement (the 6th statement of David Barker) dated 5th November 2014. This application has been withdrawn because the grounds of opposition have made it clear that it is unnecessary.
iii) An application by the Second Defendant dated 3rd November 2014 for an order that the Claimant should answer some Part 18 requests and give some further disclosure. This is supported by David Barker's 5th witness statement dated the 3rd November 2014.
5) The court may at any stage of proceedings make a costs capping order against all or any of the parties, if –
(a) it is in the interests of justice to do so;
(b) there is a substantial risk that without such an order costs will be disproportionately incurred; and
(c) it is not satisfied that the risk in subparagraph (b) can be adequately controlled by –
(i) case management directions or orders made under this Part; and
(ii) detailed assessment of costs.
i) How many searches using google.com (as opposed to google.co.uk) have been carried out in this jurisdiction over a particular period of time? The parties are in agreement that it is a small percentage of the number of searches done in the jurisdiction because most are done using google.co.uk, but they also agree that "a small percentage of a very large number is a very large number". This having become clear to the Claimant recently, he has not pursued this application because he now has an admission that over the relevant period as described in paragraph 12.4 of the Defence the number of searches in the UK using google.com would have run into millions. Issues arise as to the costs of this application, but the admission makes the position clear for the purposes of the trial.
ii) I have been through the Part 18 Request served by the Second Defendant which raises 38 questions arising from the Claimant's witness statement. These comprise, for the most part, detailed factual questions about the Claimant's links with this jurisdiction. The 2 specific disclosure requests concern first documents which passed between the Claimant and a reputation management company called Digitalis Reputation Limited and secondly material which might be relevant to establishing the identity of the First Defendant, namely deleted emails. I have therefore enquired into the importance or otherwise of these issues to the real questions which need to be decided.
i) This is quite an onerous request for detailed information which is predominantly about the Claimant's business, professional and family life. It is designed to test certain statements he has made about his connection with this jurisdiction and it is argued that the Second Defendant should not have to wait until trial for the answers to be given in cross-examination because it will wish to investigate what is said. There are some other requests which cover other areas.
ii) An order will be made under Part 18 only when it is necessary and proportionate to enable the Second Defendant to prepare its case or to understand the case it has to meet.
iii) The significance of this information is that it may be relevant to the discretionary relief which is sought if the Claimant has no real connection with the UK. It is not suggested that the material is relevant to any issue of jurisdiction. Since no claim is made against the Second Defendant for damages, the extent of the distress caused by the publication of the Material on the internet will not require the same level of detailed scrutiny as may otherwise be the case.
iv) As things stand, there is no evidential basis for suggesting that any of the things said by the Claimant in his witness statement and which are the subject of these requests are actually untrue. The Defence at paragraph 1 puts him to proof of his connection with the UK. At paragraph 36 it is denied that any distress occurred in this jurisdiction.
v) It appears to me that on the current state of the evidence the Claimant is bound to establish that he has business and other contacts within the UK and a reputation to protect here. That is what he says, and there is no contrary evidence. I doubt very much if the outcome of this case will be affected by any findings of fact about the precise extent of that reputation. I think it likely that the Trial Judge will permit some limited cross-examination on this issue, but that it is not likely that it will extend as widely as these Requests. No doubt when preparing to give evidence, the Claimant will put himself in a position to provide such further detail as the Trial Judge considers relevant so that this aspect of the trial can be efficiently managed. I doubt for example if the Trial Judge would permit Request 5 to be asked. This would require the Claimant to do a financial analysis of all his business dealings over 4 years to identify the proportion of it which was generated from business contacts living in England and Wales. The trial is due to start in 11 working days and this Request was served on 31st October. The terms of the enquiry it requires are not precisely defined and the results unlikely to be of any real assistance to the Court.
vi) This is not a case where the provision of the information sought would result in a great saving of time or the narrowing of issues.
vii) In these circumstances I am not persuaded that it is necessary and proportionate to order the provision of this information and refuse this application.
i) The Second Defendant seeks an order for disclosure of documents in two quite limited classes. An order for Standard Disclosure was made by Bean J against the Claimant and a Disclosure Statement served by him on 24th October 2014.
ii) The first class of documents sought is any communication between the Claimant and Digitalis which is not privileged. Privilege was claimed for such communications after the instruction of solicitors in the Disclosure Statement, but it is said that before that happened the communications would not be privileged and should therefore be disclosed.
iii) The Claimant's answer is that the documents sought are irrelevant to any pleaded issue and do not, in any event, exist.
iv) I have no reason to believe that these documents, as a class, are relevant to any issue in the case. If any document within this class is not privileged and is relevant (perhaps because it identifies the First Defendant and thus falls to be disclosed under the Order of Bean J at paragraph 4) then it should have been disclosed already. I have no basis for holding that the Claimant has failed in his search and failed to disclose relevant material.
v) The second class of documents is deleted emails. There is a confusion of explanations for the loss of emails between the Disclosure Statement and the latest witness statement of Mr. Hurst in that two different explanations appear. However, it is clear that emails have been deleted and have not been searched for relevance. I do consider it important that the Claimant should provide a clear and comprehensive account of what has happened to his email correspondence signed by him. I therefore direct that an amended Disclosure Statement should be prepared and served by 4.00pm on 17th November 2014. This should provide a clear and comprehensive explanation for the loss of any material, and also a statement from the Claimant, to the best of his ability, as to whether any of it was relevant and, if so, why.
COSTS CAPPING AND MANAGEMENT
i) The Second Defendant pleaded in paragraph 12.4 of its very long Defence as follows:-"It is denied that www.google.com is widely used by individuals in the United Kingdom."
It is now clear that the pleading would have more accurately set out the Second Defendant's case if the word "admitted" had been used instead of "denied". Paragraph 9(i) above records the very recent admission that millions of searches using that part of the Search Engine were made. The percentage of the total is small, but the number of searches very high. Although Mr. White QC has argued that this must always have been apparent from the rest of the Defence, in my judgment this is not so, and the attempt to suggest that searches using www.google.com were irrelevant because they did not happen in this jurisdiction to any substantial extent was wrong. This has been an issue in the case and, by concession, the Second Defendant has lost on it.
ii) The answer given by the Second Defendant on 30th October 2014 to Requests under Part 18 made by the Claimant is also instructive. In it, they made it clear that there are no technical difficulties in providing the Claimant with the relief sought. This is at variance with its pleaded case, see in particular paragraph 73 of the Defence. It is also at variance with the way the case was advanced before Bean J and with the (recently abandoned) intention of the Second Defendant to serve expert evidence going to this issue. They also admit in that document, for the first time, that they can block search requests by reference to the IP address of the device being used to make the search. They have always accepted that the IP address provides some evidence of the geographical location of the device and that their systems do make use of this information to direct the search towards matters likely to be relevant to a searcher in that location. What is now accepted, however, is that searches for particular material from UK based IP addresses can be blocked. This is not consistent with its Defence and not consistent with the witness statement served on behalf of the Second Defendant by Magdalena Schmidt. The fact is that the remedy sought by the Claimant is not impractical. Again this appears to me to be an important issue on the pleadings and one on which the Second Defendant has now, by concession, lost.
iii) The Defence is a long document which puts in issue matters on which the Second Defendant has very little prospect of success and therefore does not make clear its true case.
i) Because of the history of the Action, there has been no cost control to date by the court. For this to be the case so near the date of trial is exceptional in the modern era.
ii) The Claimant had no inkling of the size of the Second Defendant's bill and budget until very late in the day and has acted very quickly thereafter.
iii) The imbalance between the parties is obviously substantial. I have no detailed evidence as to the Claimant's means and Mr. White QC observes that the Claimant is a wealthy businessman. The Claimant, I think, agrees. There is nevertheless an imbalance between any individual and a company with the resources of the Second Defendant.
i) That the stage of the proceedings has been reached where no costs capping order should be granted because it could only affect future costs and the bulk of the costs have already been incurred.
ii) That the threshold criterion in Rule 3.19(5)(c)(ii) cannot be overcome by the Claimant. Detailed assessment will provide effective control over the risk of the expenditure of disproportionate sums. If that is right, there is no jurisdiction to make the order sought.
"The court….is satisfied that the litigation can be conducted justly and at proportionate cost in accordance with the overriding objective without such an order being made."