Christopher Wheat v Alphabet Inc./Google LLC
| Jurisdiction | England & Wales |
| Judge | Chief Master Marsh |
| Judgment Date | 26 March 2018 |
| Neutral Citation | [2018] EWHC 550 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2016-002540 |
| Date | 26 March 2018 |
[2018] EWHC 550 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Rolls Building, Fetter Lane,
London EC4A 1NL
Chief Master Marsh
Case No: HC-2016-002540
Claimant in person
Jaani Riordan (instructed by Pinsent Masons LLP) for Google LLC
Hearing dates: 6 February 2018
Judgment Approved
This judgment arises from the hearing of the claimant's two applications for permission to serve the first defendant (“Google”) out of the jurisdiction. It should be read alongside my judgment (“the MT Judgment”) handed down on 12 December 2017 in which I set aside an order giving permission to serve the Second Defendant (“Monaco Telecom”) and declaring that the court does not have jurisdiction to hear the claim against Monaco Telecom.
It is necessary briefly to summarise the procedural history of the claim. The claim was issued on 2 September 2016. On the same day the claimant applied for permission to serve the claim out of the jurisdiction on Google. (He appears to have been under the misapprehension that he did not need to obtain permission to serve Monaco Telecom). On 9 September 2016, the application came before Deputy Master Arkush on paper. He ordered that the application should be served on Google. He did not make an order granting permission to serve the proceedings out of the jurisdiction on Google as the claimant appears to have believed. However, the claimant then purported to serve the proceedings on both parties by post in late December 2016. Service on that date was ineffective because, in both cases, permission was required and had not been granted. On 4 January 2017, Monaco Telecom's solicitors wrote to the claimant notifying him of the defects in his purported service on their client. They also asked in a letter dated 12 January 2017 to be notified in advance of any steps to be taken in the claim.
On 16 January 2017 the claimant applied for permission to serve the proceedings on Monaco Telecom. The application was lodged at court but no notice was given to Monaco Telecom's solicitors. I reviewed the application ‘on paper’ and made an order refusing it but giving the claimant an opportunity to renew the application at an oral hearing. In addition, the order required the claimant to “show cause why the claim and particulars of claim should not be struck out for failing to comply with CPR 16.4(1)(a) and Practice Direction 16 paragraph 1.4 and failing to show in a clear and comprehensible manner reasonable grounds for bringing the claim”. The claimant filed amended particulars of claim on 26 January 2017 and on 30 January 2017 appeared before me at a without notice hearing. An order was made granting the claimant permission to serve the proceedings on Monaco Telecom and extending the time for service of the claim to 1 September 2017. Monaco Telecom was given an opportunity to apply to set aside the order within 21 days of service.
The claimant did not send the claim form and particulars of claim to Monaco Telecom until 19 July 2017. The version of the particulars of claim he served was one dated 6 February 2017. Thereafter, Monaco made its application.
At the hearing on 30 January 2017, the claimant told the court that his claim against Google was already proceeding, permission to serve out of the jurisdiction having been granted by the Deputy Master. This was a repetition of information contained in his application notice. The information he provided was not correct because the Deputy Master had simply required that the application be served on Google. There is nothing in the Deputy Master's order to suggest that permission was being granted to serve the claim out of the jurisdiction. The error was material because the grant of permission to serve Monaco Telecom out of the jurisdiction was made on the basis that it was a necessary party to the claim. It is very unlikely permission would have been granted had the court known permission to serve out of the jurisdiction on Google had not been obtained.
At the hearing on 30 January 2017, the claimant was also given permission to amend his particulars of claim and he was directed to serve the amended claim on the first defendant. On 31 August 2017, just before the extended period for service was due to expire, the claimant issued his second application seeking permission to serve Google out of the jurisdiction. It is that application, together with the application issued on 2 September 2016, that eventually came before me on 6 February 2018.
The claimant has made various attempts to serve the claim on Google and he has also sent Google the particulars of claim in its original and amended versions. On 31 July 2017, Google received, via the RCJ Foreign Process Section, the claim form and amended particulars of claim and the claimant has requested the court to deem Google served with the claim despite permission to serve out of the jurisdiction not having been obtained. It is beyond doubt that Google has not been lawfully served with the claim and it has neither treated service as having been validly effected nor submitted to the jurisdiction of this court by any action it has taken, including appearing to oppose the claimant's applications. If the claim against Google is to proceed, the claimant must obtain permission to serve the claim out of the jurisdiction and an order extending the time for service, or an order deeming service as having been effected.
Thus far I have used the shorthand “Google” to describe the first defendant. However, as the first defendant is named in the claim form, it comprises two entirely separate legal entities, Alphabet Inc and Google Inc. Two preliminary points can be dealt with at this stage. First, the claimant has no claim against Alphabet Inc and it should not have been joined to the claim. It will be struck out from the claim form and any purported claim against it will be struck out. The claimant does not consent to this order, but he has made no case contrary to it. Secondly, Google Inc has recently changed its name to become Google LLC. My understanding is that despite the change of legal status, it is the same entity and at the hearing I gave permission to amend the claim form accordingly. The net result is that the claim is pursued solely against Google LLC (“Google”) and the applications will be treated as seeking permission to serve that entity out of the jurisdiction.
The claimant is the founder and proprietor of a business operated through a website named “theirearth. com”. The business is based in Redhill, Surrey and it is hosted on the internet on a server network in Germany hosted by Knipp using a single dedicated IP address. When the business was first set up, the site was hosted by Monaco Telecom. The business was created to be both an original content news media site, with original journal articles and photographs, and a directory to other popular websites. The claimant says he is the owner of the copyright work that is hosted on the site comprising 782 articles written by him and 398 photographs taken by him. For the purposes of the application, he can be taken to be the author of the website content and its first owner. He is a British citizen and accordingly the entire copyright work qualifies for protection under s.154(1)(a) of the Copyright, Designs and Patents Act 1988 (“CPDA”). This is subject to one gloss, namely that when the website was first broadcast the claimant was resident in Monaco and the works were first broadcast in Monaco. The claim does not assert that the copyright works were created when the claimant was resident in the United Kingdom or first broadcast in this jurisdiction.
The claimant had great ambitions for the business he set up. He says the concept and approach he adopted proved to be popular. It gained the interest of Daimler and the claimant intended it to be a rival to Google. He puts the loss he seeks in this claim at £30 million based on the potential the website had. He says his ambitions have been thwarted by the defendants.
The claims are not easy to discern from the amended particulars of claim. The basis of the claim against Monaco Telecom is set out in the MT Judgment and it is unnecessary it repeat it here. As an entry point to the claim, the causes of action are summarised in paragraph 1.6 of the amended particulars of claim: [It is reproduced in lower case]
“A.) Copyright infringement: Google indexing a duplicate of theirearth. com on Monaco-Telecom servers and diverting google search requests to the Monaco-Telecom copy. Copyright infringement and conversion: Monaco-Telecom broadcasting an unauthorised duplicate of theirearth. com
B.) Copyright infringement: Google indexing theirearth. com copyright content on connect.in. com and sending google search requests to the connect.in. com copies of theirearth. com content
C.) Copyright infringement: Google indexing theirearth. com copyright content on blogspot. com and sending google search requests to the blogspot. com copies of theirearth. com content
D.) Copyright infringement: Google favouring the hotlinking of website content vs. sending search requests to the original copyright content sites
E.) Breach of contract: — Google AdSense advertising relationship with theirearth. com and the diversion of Ad revenue
F.) Breach of a duty of care – Causing mental distress – injurious actions and omissions directed towards the claimant and committed by both defendants”.
In summary, the claimant has four main types of claim he wishes to pursue against Google:
i. The first head of claim is based on the premise that Monaco-Telecom made an infringing copy, or a duplicate, of the claimant's website and Google has indexed that site in preference to the...
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