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

Mr Stacey submitted that the Claimants’ success in securing the deletion of the posts also indicated their overall success in the litigation and amounted to a change of circumstance which was a good reason to displace the CPR 38.6 presumption. He pointed to the fact that although extensive deletions were confirmed on 27 November 2024, it was not until 15 April 2025 that the last deletion took place.

I cannot accept this submission for the following reasons.

First, the evidence on this issue was, again, lacking in cogency. In oral submissions, Mr Stacey contended that although Mr Lin’s evidence suggested that extensive deletions were effected shortly after D3 received the Particulars of Claim on 6 September 2023, D3 failed to tell the Claimants they had done this until Mr Lin’s 13 September 2024 email to C2: see [30] and [37] above. On this basis, he suggested that the Claimants were unaware that the deletions had been made in September 2023 and remained “in the dark” for around a year. However, this seemed hard to square with the fact that the Claimants have generally been assiduous in identifying whether any posts about them remain “live”; and with the fact that C2’s 15 March 2024 email to D3 at [32] above did not make any specific requests for posts to be removed.

Second, the Claimants’ position appeared to be that D3 had not been willing to delete posts until the start of the litigation. The procedural chronology set out above does not support this suggestion. Rather, D3 had promptly deleted posts in response to the Claimants’ requests dated 21 March 2023, 24 March 2023, 26 March 2023, 3 April 2023 and 11 April 2023 and had asked for more information in response to the 5 May 2023 pre-action letter: see [23]-[27] above. The tenor of D3’s conduct prior to the litigation, underscored by Mr Lin’s 13 September 2024 email to C2 at [37] above, was that even if the Claimants had not commenced litigation, D3 would have continued to work with them to remove the posts. D3’s failure to respond to the 27 April 2023 notice of complaint was of no real consequence given that it continued, thereafter, to assist the Claimants with respect to identifying the relevant posts and deleting them. D3 has continued to delete posts throughout the litigation, promptly on receiving notice of them. Accordingly, even if the deletions effected during the course of the litigation amounted to a change of circumstances, this was not brought about by any “unreasonable conduct” by D3 for the purposes of the sixth Brookes principle.

Third, as with the provision of information under (i) above, all that the deletions made during the course of the litigation show is that the Claimants might, ultimately, have obtained a s.13 order once judgment had been entered on the defamation claim. Again, this success might be relevant to the costs of the s.13 application, but is of limited or no relevance to the costs of the entire claim; and again even likely success on the claim is not in itself a sufficient reason depart from the general rule in CPR 38.6: see [63] and [64] above.

In any event, there were real difficulties with the Claimants’ s.13 application. The power to make an order under s.13 applies where a court has given judgment for a claimant in an action for defamation. Under s.13(1)(a), the court may order an operator of a website on which “the” defamatory statement is posted to remove the statement. It follows that a s.13 order can only be made in respect of the statements that have featured in the action for defamation. In this case, Mr Lin’s evidence makes clear that all of the 14 URLs complained of in the Particulars of Claim that linked directly to the website had been deleted in March 2023 in response to the Claimants’ initial complaints. On the Claimants’ own case, they had been informed of all the deletions by 13 September 2024: see [37] and [68] above. Accordingly, there was no need to make a s.13 application in respect of the posts that featured in the Particulars of Claim. The s.13 application that the Claimants then made, on 9 October 2024, referred to 271 posts over and above those that featured in the Particulars of Claim: see [39] above. As these did not feature in the claim, there would have been no power to make a s.13 order in respect of them. The posts complained of were nevertheless deleted by D3 on or before 14 November 2024 and the Claimants were informed of this through Mr Lin on or around 17 January 2025, such that there was no basis at all for maintaining the s.13 application after that date.

For these reasons, I do not consider that the success the Claimants have achieved since the claim was issued in achieving deletions of further posts is a good reason to depart from the general rule set out in CPR 38.6.