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

As noted at [10] above, the third Brookes principle dictates that if it is plain the claim would have failed, that is an additional factor in favour of applying the CPR 38.6 presumption. It is important to note that the relevant question is whether the claim would have failed, not whether any discrete applications within the claim would have failed. In my judgment the answer to that question is that the Claimants’ claim against D3 would have failed, for the following reasons.

First, D3 would almost certainly have succeeded in its application for an order that the court did not have jurisdiction to hear the Claimants’ claim against it by virtue of s.10 of the 2013 Act, as D4 did. Under s.10 the court does not have jurisdiction to hear and determine a claim against a person such as D3 who is not the author, editor or publisher of the statement complained of “unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”. Here, it was not only reasonably practicable for the Claimants to sue D1, but they had done so and obtained judgment against him. These provisions were explained in my judgment in respect of D4 and were part of the reason why their jurisdiction challenge succeeded: see [2025] EWHC 158 (KB) at [82]-[90]. They apply with equal force to D3.

Second, D3 would be able to avail itself of the defence in s.5(2) of the 2013 Act. D3 was an operator of a website for the purposes of s.5. Under s.5(2), it is a defence for an operator to show that it did not post the statement on the website. That defence was prima facie available to D3 as it was never suggested that D3 was responsible for the original posting. The Claimants contended that they would be able to rely on s.5(3)(b) and (c) to defeat the defence as they had served D3 with a relevant notice of complaint in relation to the posts and D3 had failed to respond to the notice as required. However, ss.5(3)(b) and (c) were never going to be determinative in this case. This is because they are only relevant if the claimant can also show, under s.5(3)(a), that it was not possible for the claimant to identify the person who posted the statement. That did not apply here, as the Claimants had been able to identify the poster, namely D1, and had brought proceedings against him. The effect of ss.5(4) and s.5(3)(a) would therefore have been to prevent the Claimants defeating D3’s s.5(2) defence.

Mr Stacey contended that D3’s concession that it ought to provide information about those responsible for the posts and delete posts sat very uneasily with its position as to the merits of its defence. With respect, this submission fails to appreciate the nuances of ss.10 and 5, which effectively meant that the ability of the Claimants to sue D1 had serious implications for bringing further claims against D3 (as opposed to a s.13 application), irrespective of D3’s decisions with respect to deletions and information.

Accordingly, the third Brookes principle is made out and militates in favour of applying the CPR 38.6 presumption.