(1) Judith Vidal-hall (2) Robert Hann (3) Marc Bradshaw v Google Inc.

JurisdictionEngland & Wales
JudgeThe Honourable Mr Justice Tugendhat,Mr Justice Tugendhat
Judgment Date16 January 2014
Neutral Citation[2014] EWHC 13 (QB)
Docket NumberCase No: HQ13X03128
CourtQueen's Bench Division
Date16 January 2014
Between:
(1) Judith Vidal-hall (2) Robert Hann (3) Marc Bradshaw
Claimants
and
Google Inc
Defendant

[2014] EWHC 13 (QB)

Before:

The Honourable Mr Justice Tugendhat

Case No: HQ13X03128

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Hugh Tomlinson QC and Lorna Skinner (instructed by Olswangs LLP) for the Claimants

Antony White QC and Catrin Evans (instructed by Bristows LLP) for the Defendant

Hearing dates: 16 and 17 December 2013

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

The Honourable Mr Justice Tugendhat Mr Justice Tugendhat
1

The Claimants allege that the Defendant ("Google Inc") has misused their private information, and acted in breach of confidence, and/or in breach of the statutory duties under the Data Protection Act 1998 s.4(4) ("the DPA"), by tracking and collating, without the Claimants' consent or knowledge, information relating to the Claimants' internet usage on the Apple Safari internet browser ("the Tracking and Collation") between Summer 2011 and about 17 February 2012 ('the Relevant Period"). They claim damages or compensation, and other relief, against Google Inc.

2

The First Claimant is a self employed editor and publisher. The Second Claimant is a company director of an IT security company. The Third Claimant is a company director of an IT services company. They all used Apple devices to access the internet. They were all resident in England and Wales ("the jurisdiction") during the Relevant Period. They all used various Google services, such as its Search Engine, Google Maps and Gmail.

3

The Defendant provides its Search Engine facility and other services to internet users in this jurisdiction (and throughout the world). These are so well known that they need no description in this judgment. It provides these services for no monetary charge to the user of the device. It can do this because it collects information from the users of its services which it then processes in such a way that it can sell to suppliers what appears as space on the users' screens. This can be used by them for advertisements which are targeted at the apparent interests of the users of devices who access the internet. Google Inc analyses the information it has collected from the users, in order to deduce from it what the interests of the users of each device are likely to be.

4

A claim form has to be served in accordance with the Civil Procedure Rules. Google Inc is a corporation registered in Delaware and its principal place of business is in California. Although Google UK Ltd has offices in the jurisdiction, Google Inc cannot be served within the Jurisdiction in accordance with CPR. The Claimants need the permission of the Court to serve it out of the jurisdiction. The conditions under which a defendant can be served out of the jurisdiction are laid down by law, in particular CPR r.6 and Practice Direction 6B. Permission may be granted in respect of a particular claim if the conditions in any one of the grounds are satisfied.

5

On 12 June 2013 the Claimants were granted permission by the Master to serve the claim form on Google Inc in Mountain View, California.

6

On 12 August 2013 Google Inc applied to this court for an order declaring that the English court has no jurisdiction to try these claims, and setting aside service of the claim form, and the order of the Master.

7

I have to decide whether to grant Google Inc's application. If I decide a point in favour of Google Inc in respect of any of the Claimants' claims, then the Claimants will have to bring those claims (if they can) in California or elsewhere in the USA.

8

It is not Google Inc's case that they can never be sued in this jurisdiction. It accepts that in some cases it can be. And there are a number of cases decided in this court where it has been sued here. It is Google Inc's case that the claims in this particular action do not fulfil the conditions required to be fulfilled for permission to be granted for service out of the jurisdiction.

CONDITIONS FOR SERVICE OUT OF THE JURISDICTION

9

The general principles which the court must apply on this application are not in dispute. They can be taken from Mr Tomlinson's skeleton argument. In order to obtain permission to serve out a claimant must state which ground in paragraph 3.1 of Practice Direction 6B is relied on (CPR r6.37(1)(a)). The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim (CPR r6.37(3)).

10

The Claimants stated that they relied on two grounds: paras 3.1(2) and (9). These permit service out in cases where:

"(2) A claim is made for an injunction ordering the defendant to do or refrain from doing an act within the jurisdiction.

(9) A claim is made in tort where (a) damage was sustained within the jurisdiction; or (b) the damage sustained resulted from an act committed within the jurisdiction."

11

At the start of the hearing the Claimants issued an Application Notice dated 16 December asking for permission to rely on further grounds. The grounds permit service out in cases where:

"(11) The whole subject matter of a claim relates to property located within the jurisdiction.

(16) A claim is made for restitution where the defendant's alleged liability arises out of acts committed within the jurisdiction."

12

In relation to the injunction (para 3.1(2)), the discretion to grant permission will not be exercised unless: (i) an injunction is a genuine part of the substantive relief sought and has not been claimed merely to bring the case within the rule; and (ii) there is a reasonable prospect of an injunction being granted: see Civil Procedure Vol 1 2013 ed at 6.37.27.

13

In relation to claims in tort the requirement in para 3.1(9)(b) obliges the court to look at the tort alleged in a common sense way, and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction, regardless of whether or not such acts have been committed elsewhere: see Civil Procedure Vol 1 2013 ed at 6.37.43.

14

Claimants are in general required to show, in relation to each claim, that they have a good arguable case that it falls within the ground relied on. That is sometimes expressed as a requirement that they should show that they have much the better of the argument. But where (as here) there are disputes between the parties on a number of points of law there is a degree of uncertainty as to whether that test applies. See Dicey & Morris on Conflict of Laws 15 th ed para 11–147. In some cases claimants must go further: the court must decide the question of law when it is raised on the application to set aside (which is what this application is).

15

But in other cases that may not be the best course, in particular where the question of law is in a developing area and the facts are in dispute. In AK Investment CJSC v Kyrgyz Mobil Ltd [2011] UKPC 7, [2011] 4 All ER 1027 Lord Collins said at paras [84]–[86]:

"84 The general rule is that it is not normally appropriate in a summary procedure (such as an application to strike out or for summary judgment) to decide a controversial question of law in a developing area, particularly because it is desirable that the facts should be found so that any further development of the law should be on the basis of actual and not hypothetical facts: e.g. Lonrho Plc. v. Fayed [1992] 1 A.C. 448, 469 (approving Dyson v Att-Gen [1911] 1 KB 410, 414: summary procedure "ought not to be applied to an action involving serious investigation of ancient law and questions of general importance …"); X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 741 ("Where the law is not settled but is in a state of development … it is normally inappropriate to decide novel questions on hypothetical facts"); Barrett v Enfield London BC [2001] 2 AC 550, 557 (strike out cases); Home and Overseas Insurance Co. Ltd. v Mentor Insurance Co. (U.K.) Ltd. [1990] 1 WLR 153 (summary judgment). In the context of interlocutory injunctions, in the famous case of American Cyanamid Co v Ethicon Ltd [1975] AC 396, 407 it was held that the court must be satisfied that the claim is not frivolous or vexatious, in other words, that there is a serious question to be tried. It was no part of the court's function "to decide difficult questions of law which call for detailed argument and mature consideration."

85 In Seaconsar Far East Ltd. v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438, 452, Lord Goff said that if, at the end of the day, there remained a substantial question of fact or law or both, arising on the facts disclosed by the affidavits, which the plaintiff bona fide desired to try, the court should, as a rule, allow the service of the writ. The standard of proof in respect of the cause of action could broadly be stated to be whether, on the affidavit evidence before the court, there was a serious question to be tried.

86 There is no reason why the same principle should not apply to the question whether, in a service out of the jurisdiction case …, a claim is "bound to fail" as well as to the question whether there is a "serious issue to be tried"…"

16

There are two requirements in addition to showing a good arguable case that each claim comes within the ground relied on. The second requirement is that a claimant must satisfy the court that there is a serious issue to be tried on the merits of the claim, i.e. a substantial question of fact or law or both. In other words, there has to be a real, as opposed to a fanciful, prospect of success on the claim.

17

The third requirement is that the claimant must satisfy the court that in all the circumstances England is clearly...

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