Louis Bacon v Automattic Inc. and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat |
| Judgment Date | 06 May 2011 |
| Neutral Citation | [2011] EWHC 1072 (QB) |
| Docket Number | Case No: HQ11X01388 |
| Court | Queen's Bench Division |
| Date | 06 May 2011 |
[2011] EWHC 1072 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ11X01388
Matthew Nicklin (instructed by Schillings) for the Claimant
The Defendants did not appear and were not represented
Hearing dates: 19 April 2011
The difficult question raised by this application is: can a defendant domiciled in the United States of America be served by means of email with a claim form issued in England?
On 13 April 2011 the Claimant issued a Claim Form naming the three defendants. The first two are in California and the third in Colorado. The relief he seeks is a Norwich Pharmacal Order ( Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133) requiring the Defendants to disclose to his solicitors the names, addresses, IP addresses and other information that will identify, or assist the Claimant's solicitors in identifying, the person or persons responsible for publishing statements about the Claimant which he alleges to be defamatory. These are publications on websites operated by the Defendants namely www.en.wikipedia.org, www.wordpress. com and www.denverpost. com respectively. He states that he has no other reasonable means of identifying the individual or individuals responsible for publishing those statements.
The principle in Norwich Pharmacal is described in the speech of Lord Reid at page 175 as follows:
"If through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."
By way of background, on 21 December 2010 I granted a Norwich Pharmacal Order at the request of the Claimant in respect of a website www.bahamascitizen. com. The result has been that the Claimant has been able to identify a person who accepts that he was responsible for creating that website for a client, but has so far refused to identify that client. The Claimant is likely to bring proceedings in the Bahamas to obtain an order that the identity of the client be disclosed.
The Claimant is the founder and the Chief Executive Officer of Moore Capital Management LLP, a company with offices in New York, Washington DC and London. He owns residential properties in London, the Bahamas and Denver, Colorado. He is a prominent person in the world of finance, and is the subject of news stories from time to time in each of the jurisdictions mentioned above.
The first Defendant is a web development company based in San Francisco which operates the website www.wordpress. com, amongst others. WordPress. com hosts weblogs.
The Second Defendant runs the Wikipedia website.
The Third Defendant is the publisher of the Denver Post newspaper, which is published both in hard copy and online at its website www.denverpost. com. That site has a forum section which encourages users to post comments.
The substantive complaint of the Claimant is that numerous article and comments which he claims are defamatory of him have been posted on the Defendants' websites under various names such as "gotbacon" and "TCasey82", none of which reveal the true identity of the person responsible for the publication. It is unnecessary to consider further the substantive claim which the Claimant wishes to make against these persons, because in my judgment it passes the threshold of being a good arguable case in defamation.
On 18 March solicitors for the Claimant wrote by e-mail to the First Defendant. They set out the basis of the claim for Norwich Pharmacal relief and asked for disclosure of information which could lead to the identification of those responsible for the defamatory postings complained of. On the same day the First Defendant replied by an e-mail, which included the following:
"Please provide us with a court order including a court's decision regarding this particular content; if any content is found to be defamatory or illegal by a court of law, it will be removed immediately from our service. Any court order, should you obtain one, should be sent to the following e-mail address: court-orders at wordpress. com".
The solicitors had written a similar letter to Wikipedia on 1 March 2011 and had received a reply on 14 March by email. That included the following:
"I have removed the statements complained of and have raised a task for one of our biography specialists to further investigate the quality of sources of information in the article. While you will not automatically be notified of the outcome of this, it generally results in articles being cleaned up and improved above and beyond the triage and removal of obviously wrong statements which the Quality Support Team provides…."
On 30 March the Wikimedia Support Team sent a further e-mail which included the following:
"You request log details and IP information for a registered Wikipedia editor. We will be happy to provide you with this information upon receipt of an official court order/subpoena requesting the data. An official copy of the court order/subpoena should be sent via postal mail via our registered agent using the address noted at [and a website address is given]".
However on 14 April 2011 Counsel for Wikimedia Foundation sent an e-mail indicating that the position was different in one respect: a order issued by a US court is required. The e-mail included the following:
"Unfortunately, the Wikimedia Foundation does not disclose personally identifying information regarding its users absent US subpoena. Please note that we do not comply with foreign subpoenas absent and immediate threat to life or limb, due to the varying standards and requirements of courts from country to country. There is a procedure by which you can have a foreign subpoena recognised by US courts. Should you choose to pursue this course of action, please send the US subpoena to me and we will comply with the subpoena to the best of our ability".
The Claimant therefore took legal advice from California counsel who has made a witness statement. Mr Spiegel, a partner in Lavely and Singer Professional Corporation, states that a Norwich Pharmacal order may be enforced in California as provided in the recently enacted Interstate and International Depositions and Discovery Act, Cal. Code of Civil Procedure Section 2029.100 (and following) which were effective from the 1 January 2010. Having seen the terms of the draft order which the Claimant asks me to make, he advised that, based on his experience, he did not envisage difficulty with enforcing such an order in California.
The position in relation to the Third Defendant is different. On the website denverpost. com there is a list of different e-mail addresses to which different types of communication should be sent. One of these is "legal notices" and an e-mail address is given: legals@denverpost. com. Solicitors for the Claimant wrote to the Denver Post on 18 March 2011 in terms similar to the letters addressed to the First and Second Defendants, and they sent a further letter to the same effect on 29 March. They have not received a response to either letter. However, the website includes a section headed Privacy Policy and a subsection "Disclosure To Third Parties". Under that heading there is a paragraph stating that:
"The Post will disclose information. The Post maintains that when required to do so by law or pursuant to a legal proceeding, including without limitation, in response to a court order or a subpoena. The Post may also disclose such information in response to a law enforcement agency's request…"
The witness statement of Samantha Domin dated 12 April 2011, and made in support of the application, sets out the basis for the substantive complaint in defamation which the Claimant wishes to make against the as yet unidentified publishers. She goes on to state the basis for the Norwich Pharmacal relief, which I find to be well founded for the purposes of the present application. It makes out a good arguable case. Ms Domin goes on to state that the information is required urgently because, unless the wrongdoers are identified and restrained by injunction, they are likely to continue publishing defamatory material about the Claimant. And the Claimant wishes to take steps as soon as possible to protect his reputation against the untrue defamatory allegations.
There is a further reason for urgency. It is the policy of the Second Defendant to retain information of the kind sought by the Norwich Pharmacal order. The policy is to retain it only for a limited and unspecified amount of time.
Accordingly, the Claimant applies for permission to serve the claim form out of the jurisdiction, on the grounds specified in Practice Direction 6B para 3.1(2): a claim is made for an injunction ordering the Defendants to do an act within the jurisdiction, namely disclose to the solicitors the information sought.
The period for filing an acknowledgement of service or defence in a case where a claimant serves the claim form on a defendant outside the jurisdiction is greatly extended by the CPR. For claims to be served in the USA, the period specified in the Table in Practice Direction 6B is 22 days.
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