KB-2023-003483 - [2025] EWHC 1799 (KB)

Mr Stacey submitted that by their email dated 6 November 2024 D3 had complied with Master Stevens’ order by providing the Claimant with information about the three posters on the website. The Claimants had thereby achieved one of their key objectives in the litigation. In light of this, as well as their success in securing the deletion of the posts (addressed under (ii) below) they should be treated as having succeeded in their claim even if they did not obtain damages from D3. The provision of this information, he argued, amounted to a “change of circumstance” which was a good reason to displace the CPR 38.6 presumption.

As attractively as it was advanced, I cannot accept this submission for the following reasons.

First, although Mr Stacey submitted that the Claimants had succeeded in their objective of obtaining information from D3 by 6 November 2024, the material provided by the Claimants presented a different picture. The document entitled “poster information disclosed by the third defendant” within XW/14, provided on 1 June 2025, asserted that “a significant portion of the data requested”, in the form of posts and IP addresses, was still missing. The Claimants had prepared a table listing 31 posts and colouring those in relation to which they considered D3 had still not provided sufficient information red. This amounted to over half the posts. The Claimants’ chronology also contended that on 6 November 2024 D3 only provided a “fragment” of the total information requested. These documents therefore suggest that the Claimants do not consider that D3 has yet fully complied with the Master’s order and thus that they have not fully met their objective of obtaining information. As noted above, they were advancing a different position through their counsel.

Second, D1 had admitted as far back as 20 March 2023 that he was the publisher of the posts: see [22] above. The Claimants’ Particulars of Claim acknowledged that there were multiple accounts involved in the posts but contended at paragraph 23(3) that D1 was responsible for them all. On 10 June 2024, they obtained default judgment against D1 on that case. Accordingly, as I explained in [2025] EWHC 158 (KB) at [88] and [112], (i) it would no longer be open to D1 to argue that he was not responsible for all the posts (if indeed that was ever his case); rather, the court would make what orders as to remedy were appropriate against D1 on the basis that he was responsible for them all; and (ii) any order aimed at assisting the Claimants in identifying any additional posters of the defamatory material over and above D1 would have limited utility. In those circumstances it was unnecessary for the Claimants to continue to focus on identifying whether any other people were involved in the posting, certainly after the grant of default judgment on 10 June 2024. I also have my doubts as to whether that really was their focus: C2’s 15 March 2024 email to Mr Lin at [32] above appeared to indicate an acceptance that the only person involved was D1, such that it might be that what the Claimants were really hoping to achieve was further confirmation that D1 was behind more posts.

In light of the issues at [59] and [60] above, the Claimants’ position is not particularly “cogent”, as required to displace the CPR 38.6 presumption: see Nelson’s Yard at [31], at [12] above.

Third, the sixth Brookes principle makes clear that even if there has been a change in circumstances, it is not likely to suffice to displace the presumption unless it has been brought about by some form of “unreasonable conduct” on the part of the defendant which in all the circumstances provides a good reason for departing from the rule. Here, D3 was entitled to ask that the Claimants apply for a court order before it disclosed the personal data of its users. This was not unreasonable conduct: rather, it reflected D3 acting as a responsible website operator, following its privacy policies.

Fourth, even if D3 provided all the information the Claimants sought by 6 November 2024, or even by the later date mentioned by the Claimants in some of their documents of 7 February 2025, all this shows is that their Part 18 application had effectively succeeded. That might be relevant to the costs of that application (although, as I have said, this was in substance a Norwich Pharmacal and the costs of such applications are generally met by the applicant: Cartier International AG v British Telecommunications Plc 2018 UKSC 28). However, I do not see how it can be relevant to the costs of the entire claim.

Fifth, even if success in obtaining the information could, properly, be regarded as success on the claim overall, the authorities are clear that the fact that a claimant would or might well have succeeded at trial on their substantive claim is not in itself a sufficient reason to depart from the general rule: see the second Brookes principle and Nelson’s Yard at [31], at [10] and [12] above.

For these reasons, I do not consider that the fact that D3 has provided information to the Claimants to assist in identifying the three posters is a good reason to depart from the general rule set out in CPR 38.6.