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

The Claimants contended that D3 had engaged in unreasonable conduct in a range of ways.

First, Mr Stacey submitted that D3 had failed, generally, to respond to their requests in relation to information and deletion prior to and during the proceedings. More specifically, he alleged that D3 had failed to comply with their obligations with respect to the provision of information until late November 2024 when they were ordered to provide information by Master Stevens; and had failed to comply with the requirements of s.5 of the 2013 Act. I have rejected this characterisation of D3’s conduct as unreasonable for the reasons given at [62] and [69] above.

Second, he argued that D3 “appeared to have acted by taking all possible routes to derail the claim”. On 21 November 2023, D3 had filed an application to vary the order of 24 October 2023 permitting the Claimants to serve out of the jurisdiction on D3. It had not pursued this application. Similarly, it had not pursued its 14 May 2024 application under CPR 11 in respect of jurisdiction or its 10 December 2024 application for a strike out/summary judgment.

I cannot accept this analysis. D3’s 21 November 2023 application had been superseded by service successfully taking place on 9 April 2024 and D3 filing its Acknowledgement of Service on 26 April 2024. The jurisdiction and strike out applications were considered at the 12 December 2024 hearing but lack of court time prevented them being determined. In accordance with my various case management directions, they would have been listed for hearing but for the Claimants’ discontinuance. There was no failure to progress these applications by D3.

Third, the Claimants argued that D3 had unreasonably failed to engage with their reasonable offers to settle matters.

Again, I disagree. On 12 December 2024, D3 wrote to the Claimants proposing to settle the issues between the parties by having a Zoom meeting to go through each of the posts complained of to reassure the Claimants that they had been deleted. C2 responded the next day stating that they were open to settlement provided that D3 pay the Claimants £400,000 in compensation and that each party bear its own costs. There were further attempts to resolve matters in late January 2025, but in early February 2025, the Claimants put this process on hold, pending the outcome of the disposal hearing in respect of D1 listed for 27 February 2025. The settlement correspondence on 7 March 2025 and thereafter shows nothing more than reasonable conduct by D3, including (i) responding to the various offers made by the Claimants; (ii) on 15 April 2025, making a without prejudice save as to costs counter-offer, which provided that the Claimants would only have to pay 80% of D3’s costs if they filed and served a Notice of Discontinuance by 22 April 2025 to avoid incurring any further costs; and (iii) when agreement could not be reached, maintaining its reliance with respect to its costs on the presumption in CPR 38.6.

This is not the first time the Claimants have made assertions about the conduct of D3 or their representatives which have been found to be unsubstantiated. In their 28 April 2025 application for special measures under CPR 1.6, C1 and C2 alleged that D3’s legal representatives had bullied them. In my 7 May 2025 order on their application, I made clear that the inter partes correspondence did not support these allegations.

I therefore accept Mr Callus’ overarching submission that D3 has not acted unreasonably at all, in light of the scale of litigation brought. On the contrary, D3 has been highly accommodating to the Claimants, both before and during these proceedings.

Accordingly, the Claimants cannot pray in aid any unreasonable conduct by D3 for the purposes of the sixth Brookes principle or more generally in support of their position.