England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
INTELLECTUAL PROPERTY

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th March 2011

MR JUSTICE KITCHIN:

1. This is the further hearing of applications by the defendants for summary judgment or, in the alternative, for a conditional order requiring Mr Allen to provide security for their costs. Specifically, I must now decide whether to make a conditional order and, if so, on what terms.
2. The defendants submit:

(i) it is appropriate to order Mr Allen to provide security for all of their costs of the action in light of the finding in my judgment of 14 October 2010 that it is improbable the claim will succeed;

(ii) Mr Allen is acting as a nominal claimant and there is reason to believe that he will be unable to pay the defendants' costs if ordered to do so

(iii) Mr Allen or, more particularly, those funding and giving instructions in connection with the claim have demonstrated a want of good faith; that is to say a will to litigate the claim as economically and expeditiously as reasonably possible in accordance with the overriding objective;

(iv) it is appropriate to order Mr Allen to identify all persons funding his claim.

3. Mr Allen resists the order sought. He contends:

(i) the court should not make an order for security unless the defendants establish that one of the conditions set forth in CPR r.25.13(2) is satisfied and that he has been shown regularly to flout court orders or has demonstrated a want of good faith;

(ii) the order sought would stifle the claim;

(iii) the defendants' conduct has been such that I should decline to make any order in the exercise of my discretion.

4. Before addressing the relevant principles and the parties' various submissions, I must first set out a little more of the background.

Background

5. I begin with Mr Jonathan Jacobs, the son of the late Mr Adrian Jacobs, who wrote Willy the Wizard ("WTW") in 1987.
6. On 18 July 1989, Mr Adrian Jacobs was declared bankrupt whereupon title to the copyright in WTW vested in the Official Receiver.
7. On 18 February 1997, Mr Adrian Jacobs died intestate. Mr Jonathan Jacobs is the sole beneficiary of Mr Adrian Jacobs' estate ("the Estate") and on 8 August 2003 obtained the grant of letters of administration.
8. By deed made on 4 October 2004, the Official Receiver assigned to Mr Jonathan Jacobs, apparently in a personal capacity, the copyright in WTW.
9. Some two years later, by deed made on 10 November 2006, the Official Receiver assigned to Mr Jonathan Jacobs, again apparently in a personal capacity, the copyright in another work written by Mr Adrian Jacobs, Holiday Antics ("HA").
10. By deed made on 11 June 2008, no doubt in anticipation of the commencement of these proceedings, Mr Jonathan Jacobs appointed Mr Allen as trustee of the Estate in his place under section 36(1) of the Trustee Act 1925 and declared that Mr Allen held all the assets of the Estate as trustee and might act on behalf of the Estate in relation to those assets, including the copyright in WTW and HA, as if he were the original trustee of the Estate. Mr Jonathan Jacobs also provided Mr Allen with an indemnity in the following terms:

"Mr Jacobs hereby declares that Mr Allen shall not be personally liable for any liabilities of the Estate and Mr Jacobs hereby indemnifies Mr Allen from any personal liability or claims against him personally arising from his trusteeship of the Estate."

11. Although the deed of 11 June 2008 refers to the copyright in WTW and HA, there must be some doubt as to whether title to the copyright at that time vested in the Estate as a result of the earlier deeds of assignment dated 4 October 2004 and 10 November 2006. Accordingly it seems that later in 2008 Mr Jonathan Jacobs executed an assignment of the copyright in WTW and HA to Mr Allen in his capacity as trustee of the Estate.
12. Mr Jonathan Jacobs lives in California and there is evidence to suggest he is a man of substantial means. In 2006, a report in a publication called News Blaze stated his interest in an online "virtual world" was estimated to have a net worth of US$ 1.5 million making him "the first Virtual World Millionaire". In 2007, he was described by Reuters as being a "legendary adventurer, celebrity and fabulously wealthy entrepreneur". More recently, on 30 November 2010, Forbes reported that he had "just sold a virtual space station … for … $ 635,000 in total, making over half a million dollars".
13. Mr Jonathan Jacobs has not filed any evidence in response to this application. However, he did file a witness statement dated 21 April 2010 in response to an application to join him as a third party in the proceedings for the purpose of costs only. In that witness statement, and despite the terms of the deed of appointment of Mr Allen, Mr Jonathan Jacobs says that no agreement of any nature has been entered into between himself and Mr Allen which involves payment by him of Mr Allen's legal costs, that he has no right to any sums that may be recovered and that he has no control of any kind over these proceedings or how they have been or will be conducted.
14. This brings me to Mr David Markson. In a witness statement dated 14 February 2011 he says that he made contact with Mr Jonathan Jacobs in 2003, having noted many similarities between WTW and the first five Harry Potter books. He also says that he was then appointed as literary agent for the Estate and instructed to do whatever he could to seek redress for the Estate from those who had infringed the copyright in WTW, and that everything he has done since then has been done for the benefit of the Estate and with the sanction of Mr Jonathan Jacobs. This is plainly inconsistent with the evidence of Mr Jonathan Jacobs to which I have referred.
15. Mr David Markson continues that one of the courses of action which he recommended to Mr Jonathan Jacobs, and which Mr Jonathan Jacobs endorsed, was to commence proceedings in the UK for copyright infringement and to instruct solicitors here to advise on the merits and prepare forensic evidence in support of the claim. The solicitors chosen were Gibson Young, who were duly instructed on behalf of Mr Jonathan Jacobs and, as will be seen, wrote a letter to Ms Rowling on 24 March 2004 alleging infringement of the copyright in WTW.
16. Mr David Markson then explains the involvement of Mr Allen. He says that Mr Jonathan Jacobs was advised as far back as 2003 that:

"... because of his long residence in the USA and the circumstances surrounding the Estate, it was appropriate that the Estate appoint a Trustee for the conduct of litigation in the UK"

17. Mr David Markson does not, however, say who gave that advice; nor does he explain why the residence of Mr Jonathan Jacobs out of the jurisdiction rendered the appointment of another trustee appropriate. In due course, Mr David Markson continues, he introduced "the Estate" to his friend, Mr Allen.
18. Mr David Markson also says that, from 2004 to 2008, he began to spend an increasing amount of time in Australia where his brother, Mr Max Markson, a publicity relations executive, is based. Mr David Markson continues that Mr Max Markson knew Mr Adrian Jacobs well and offered to act "pro bono" as the Estate's publicity agent. As will be seen, he certainly has been active in that regard. Nevertheless, Mr David Markson says that Mr Max Markson has not been paid anything for his work and does not expect to receive any money in the future.
19. At some point over this period Mr Max Markson met Mr Kevin Foley, a solicitor based in New South Wales, who agreed to act for the Estate on a success fee only basis, together with expenses. Mr David Markson says that Mr Foley advised the Estate to commence proceedings in the High Court in England and, for that purpose, instructed DMH Stallard in place of Gibson Young. Although it was apparently intended that Mr Foley would play a major role in the proceedings, he fell seriously ill in 2009 with the result that for a time DMH Stallard received their instructions from either Mr David Markson or Mr Allen.
20. Mr David Markson also gives evidence as to the funding of this claim. He says that to date, Mr Allen has paid legal and expert costs in the region of £415,000. In addition, he says the Estate has incurred and paid a further £85,000 over the last seven years and currently owes in the region of £377,000. He continues that it has been his sole responsibility to raise the funds to meet these costs and has borrowed about £100,000 against two houses owned by his family in Henley-on-Thames, has spent about £30,000 of his personal savings and, with those exhausted, has borrowed around £370,000 from friends and well-wishers. He also says:

"It is true that as the Literary Agent I do expect to eventually receive some commission to enable repayment of the considerable sums I have personally borrowed to fund this litigation"

21. Mr Allen has also filed a witness statement in opposition to this application. He is a property developer and says that he was appointed and agreed to act as trustee of the Estate to enable it to conduct litigation in this country, having been informed that his appointment was "necessary" for that purpose. He says that Mr David Markson and Mr Foley have given the day-to-day instructions to DMH Stallard, although he has on occasion been obliged to give instructions in light of Mr Foley's illness. He maintains he has no role whatsoever in the raising of funds and has no financial interest in the outcome of the claim.

Legal principles

22. In light of the submissions advanced by Mr Allen, it is convenient to begin by setting out the relevant provisions of the CPR.
23. Rule 3.1 deals with the court's general powers of management and provides so far as relevant:

"3.1 ... (2) Except where these Rules provide otherwise, the court may-

…

(m) take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

(3) When the court makes an order, it may –

(a) make it subject to conditions, including a condition to pay a sum of money into court; and

(b) specify the consequence of failure to comply with the order or a condition.

...

(5) The court may order a party to pay a sum of money into court if that party has, without good reason, failed to comply with a rule, practice direction or a relevant pre-action protocol.

(6) When exercising its power under paragraph (5) the court must have regard to –

(a) the amount in dispute; and

(b) the costs which the parties have incurred or which they may incur.

(6A) Where a party pays money into court following an order under paragraph (3) or (5), the money shall be security for any sum payable by that party to any other party in the proceedings."

24. Turning to Part 24, this reads so far as relevant:

"24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue; or

(ii) that defendant has no real prospect of successfully defending the claim or issue; and

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

...

24.6 When the court determines a summary judgment application it may –

(a) give directions as to the filing and service of a defence;

(b) give further directions about the management of the case."

25. In addition, I must refer to the Practice Direction supplementing Part 24 which reads in relevant part:

"The court's approach

4. Where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order, as described below.

Orders the Court may make

5.1 The orders the court may make on an application under Part 24 include:

(1) judgment on the claim,

(2) the striking out or dismissal of the claim,

(3) the dismissal of the application,

(4) a conditional order.

5.2 A conditional order is an order which requires a party:

(1) to pay a sum of money into court, or

(2) to take a specified step in relation to his claim or defence, as the case may be, and provides that that party's claim will be dismissed or his statement of case will be struck out if he does not comply."

26. Rule 25.12 provides for applications by a defendant to any claim for security for his costs of the proceedings. Rule 25.13(1) provides that the court may make an order for security for costs under rule 25.12 if:

"(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; and

(b) (i) one or more of the conditions in paragraph (2) applies, or

(ii) an enactment permits the court to require security for costs."

27. For present purposes, the relevant condition in paragraph (2) is (f):

"The claimant is acting as a nominal claimant, other than as a representative claimant under Part 19, and there is reason to believe that he will be unable to pay the defendant's costs if ordered to do so."

28. In Olatawura v Abiloye [2002] EWCA Civ 998; [2003] 1 WLR 275, the Court of Appeal considered the jurisdiction to make a conditional order under rule 24 and rule 3. Simon Brown LJ (with whom Dyson LJ agreed) explained at paragraphs [18] and [19] that there is now a jurisdiction under the CPR to make orders which are tantamount to orders for security for costs outside the provisions of Part 25. He then turned to consider the approach that the court should adopt to the exercise of its wider new discretion and said at paragraphs [22] to [26]:

"22. The first point to be made is I think this. Before ordering security for costs in any case (ie whether or not within rule 25) the court should be alert and sensitive to the risk that by making such an order it may be denying the party concerned the right to access to the court. Whether or not the person concerned has (or can raise) the money will always be a prime consideration, not least since article 6 of ECHR became incorporated into domestic law. Paradoxically, of course, the more difficult it appears to be for the person concerned to raise the money, the more obvious becomes the need for an order for security to protect the other party against the risk of incurring irrecoverable costs. The court will have to resolve that conundrum as best it may.

23. Assume, then, that in a given case the court concludes that an order for security would not unfairly deprive the party concerned of his ability to litigate the dispute. Should such an order then be made? In addressing this question it is right to bear in mind that under the new rules it is not just the claimant against whom an order for security for costs can be made; it can also be made against the defendant. Under the old rules, of course, it was only the defendant who could be ordered to pay money into court, principally in proceedings for summary judgment, as a condition of his being allowed to defend the claim. That payment in was not, of course, in respect of costs, but rather to provide some security for the claim. But if, as a condition of pursuing an unpromising defence, it is appropriate to secure the claim, why not also the claimant's costs of advancing the claim? And if that, why is it not at least as appropriate to require someone advancing an unpromising claim to secure the defendant's costs. He, after all, has chosen to involve the defendant in litigation and the defendant has no option but to concede the claim or incur costs in resisting it. Such no doubt was the thinking underlying the new rule 24.

24. Now, it is clear, the court has an altogether wider discretion to ensure that justice can be done in any particular case. Obviously relevant considerations, besides the ability of the person concerned to pay, will be (a) his conduct of the proceedings (including in particular his compliance or otherwise with any applicable rule, practice direction or protocol), and (b) the apparent strength of his case (be it claim or defence). And these considerations, of course, are expressly reflected in the new rules governing the court's power to order payment into court: rule 3.1(5) dealing expressly with compliance, rule 24 with the probabilities or otherwise of success.

25. That, however, is by no means to say that the court should ordinarily penalise breaches of the rules and the like by making orders for payment into court under rule 3.1(5). Quite the contrary. The one case drawn to our attention in which this question has been considered - Buckley J's judgment in Mealey Horgan plc -v- Horgan (transcript 24 May 1999, briefly reported in The Times, 6 July 1999), to which reference is made in paragraph 3.1.5 of the Annual Practice - held that it would be inappropriate to order a defendant to give security as a penalty for failure to serve witness statements in time when that had prejudiced neither the trial nor the claimant. Buckley J suggested, however, that such an order might be appropriate if "there is a history of repeated breach of timetables or of court orders or if there is something in the conduct of the party which gives rise to suspicion that they may not be bona fide and the court thinks the other side should have some financial security or protection". That seems to me to point the way admirably: a party only becomes amenable to an adverse order for security under rule 3.1(5) (or perhaps 3.1(2)(m)) once he can be seen either to be regularly flouting proper court procedures (which must inevitably inflate the costs of the proceedings) or otherwise to be demonstrating a want of good faith - good faith for this purpose consisting of a will to litigate a genuine claim or defence as economically and expeditiously as reasonably possible in according with the over-riding objective.

26. Similarly it is not to be thought that an order for security for costs will be appropriate in every case where a party appears to have a somewhat weak claim or defence. The last thing this judgment should be seen as encouraging is the making by either side of exorbitant applications for summary judgment under rule 24.2 in a misguided attempt to obtain conditional orders providing security for costs. On the contrary, the court will be reluctant to be drawn into an assessment of the merits beyond what is necessary to establish whether the person concerned has "no real prospect of succeeding" and the occasions when security for costs is ordered solely because the case appears weak may be expected to be few and far between."

29. In Ali v Hudson (trading as Hudson Freeman Berg) [2003] EWCA Civ 1793; [2004] C.P. Rep 15, the Court of Appeal specifically considered the jurisdiction to order security for costs under rule 3. After referring to the decision in Olatawura v Abiloye, Clarke LJ (with whom Potter LJ and Ward LJ) agreed, explained at paragraph [40]:

"40. Those principles show that the power to order security for costs in a case of this kind should be exercised with great caution. The correct general approach may be summarised as follows:

(i) it would only be in an exceptional case (if ever) that a court would order security for costs if the order would stifle a claim or an appeal;

(ii) in any event,

(a) an order should not ordinarily be made unless the party concerned can be shown to be regularly flouting proper court procedures or otherwise to be demonstrating a want of good faith; good faith being understood to consist (as Simon Brown LJ put it) of a will to litigate a genuine claim or defence (or appeal) as economically and expeditiously as reasonably possible in accordance with the overriding objective; and

(b) an order will not be appropriate in every case where a party has a weak case. The weakness of a party's case will ordinarily be relevant only where he has no real prospect of succeeding."

30. Most recently, in Bryan Huscroft v P&O Ferries Ltd [2010] EWCA Civ 1483, the Court of Appeal again considered the jurisdiction to make an order for security for costs under rule 3.1 and, importantly, the relationship of that jurisdiction to the jurisdiction conferred by Part 25. After referring again to the decision in Olatawura v Abiloye, Moore-Bick LJ (with whom Elias LJ and Sedley LJ) agreed, emphasised at paragraph [14] that litigants should not regard rule 3.1 as providing a way of circumventing the requirements of Part 25:

"14. It is clear from paragraph 26 of the judgment in Olatawura v Abiloye that the court was viewing the matter though the prism of an unsuccessful application for summary judgment, but the warning against making exorbitant applications in misguided attempts to obtaining a conditional order for security for costs is of more general application. It would be wrong, in my view, to encourage litigants to regard rule 3.1(3) as providing a convenient means of circumventing the requirements of Part 25 and thereby of providing a less demanding route to obtaining security for costs. In my view, when the court is asked to consider making an order under rule 3.1(3) or 3.1(5) which is, or amounts to, an order for security for costs, or when it considers doing so of its own motion, it should bear in mind the principles underlying rules 25.12 and 25.13. These include the principle that a personal claimant who is resident within the jurisdiction or in one of the other member states of the European Union cannot be required to provide security for costs just because he is impecunious, even though his conduct of the proceedings may be open to criticism. Although it might be argued that the defendant in such a case should be entitled to obtain protection against the risk of being unable to enforce a judgment for costs, a policy decision has been taken to the contrary. This suggests that an order of that kind should not be made in the exercise of the power under rule 3.1(3) unless one or more additional factors are present which make it appropriate to impose a burden of that kind on one party and a corresponding benefit on the other."

31. After referring to Ali v Hudson, Moore-Bick LJ continued at paragraphs [17] and [18]:

"17. In both Olatawura v Abiloye and Ali v Hudson the court appears to have been concentrating primarily on the court's power to order a payment into court under rule 3.1(5), although it may be fair to say that in neither case was it at pains to draw a clear distinction between the two rules. However, they are distinct and directed to different situations. In particular, rule 3.1(3) is deliberately drafted in quite general terms and I think that this court should be reluctant to lay down any hard and fast rules about the circumstances or manner in which the power can be exercised. Experience shows that cases are infinitely variable and the rule does not place any limit on the nature of the conditions that may be imposed or the circumstances in which the power may be invoked, other than providing that a condition may be imposed as an adjunct to an order. However, two matters seem to me to provide support for the view that the power to attach conditions to an order is intended, as Mr. Myerson submitted, to enable the court to exercise a degree of control over the future conduct of the litigation. The first is the existence of rule 3.1(5), which is clearly intended to give the court power to punish a party who without good reason fails to comply with the established procedural code, including the pre-action protocols. Although such an order may well have a beneficial influence on the future conduct of the litigation, it is directed more to what has gone on in the past than what will go on in the future. To that extent it is quite different in nature from a condition of the kind contemplated by rule 3.1(3) which, combined with a sanction for failure to comply, usually of a stringent nature, is designed to control the future conduct of the party on whom it is imposed. The second is the language of the rule itself. The very fact that it allows the court to make an order subject to conditions is sufficient to show that the rule is concerned with the basis on which the proceedings will be conducted in the future, and that remains the case even when the condition is imposed in order to make good the consequences of some kind of previous misconduct.

18. Having said that, I think it is also necessary to recognise that rule 3.1(3) does not give the court a general power to impose conditions on one or other party whenever it happens to be making an order and if District Judge Babbington thought that it did, he was in my view wrong. When the rule speaks about the court's making an order it is referring to a direction that a party act in a certain way or that a certain state of affairs should exist, not to the instrument used to give effect to one or more such directions. The court has ample powers under rules 3.1(2)(m) and 3.3 to make whatever orders are needed for the proper management of the proceedings. The purpose of rule 3.1(3) is to enable the court to grant relief on terms and when the power is exercised the condition ought properly to be expressed as part of the order granting the specific relief to which it relates. The order in the present case did not do that. Paragraph 1 was framed as a free-standing order that Mr. Huscroft pay money into court as security for costs; it was not expressed as a condition of obtaining any relief that he was seeking. Paragraph 2 imposed the sanction of striking out his claim in default of compliance. Those were orders of a kind that one might expect to see following an application for security for costs under Part 25 or even an unsuccessful application by one or other party for judgment under Part 24, but not as conditions attaching to a wide-ranging group of relatively routine procedural directions given at a case management conference. I accept that, as Rimer LJ pointed out when refusing permission to appeal on this point, it would be wrong to elevate form over substance, but it seems to me that expressing the relevant order as subject to the condition in question is the right way to exercise the power. It also has the advantage of requiring the court to focus attention on whether the condition (and any supporting sanction) is a proper price for the party to pay for the relief being granted…"

32. I derive from these authorities the following propositions which have a bearing on the application before me:

(i) the court has jurisdiction under rule 24.6 to make an order which is tantamount to an order for security for costs;

(ii) that jurisdiction extends to requiring someone advancing an unpromising claim to secure the defendant's costs;

(iii) before ordering security for costs in any case, the court should be alert and sensitive to the risk that by making such an order it may be denying the party concerned a right of access to the court; whether or not the person concerned has raised or can raise the money will always be a prime consideration;

(iv) the court has a wide discretion to ensure that justice is done in any particular case;

(v) relevant considerations, beside the ability of the person to pay, include his conduct of the proceedings and the apparent strength of his case;

(vi) a party only becomes amenable to an adverse order for security under rule 3 once he can be seen either regularly to be flouting proper court procedures or orders or otherwise has demonstrated a want of good faith, that is to say a will to litigate a genuine claim or defence as economically as reasonably possible in accordance with the overriding objective;

(vii) likewise, an order for security for costs would not be appropriate in every case where a party appears to have a somewhat weak claim or defence;

(viii) exorbitant applications for summary judgment in misguided attempts to obtain conditional orders providing security for costs are not to be encouraged;

(ix) the occasions when security for costs is ordered solely because the case appears weak may be expected to be few and far between;

(x) it would be wrong to encourage litigants to regard rule 3.1 as providing a convenient means of circumventing the requirements of Part 25 and thereby providing a less demanding route to obtaining security for costs. When the court is asked to consider making an order under rule 3.1(3) or 3.1(5) which is or amounts to an order for security for costs or when it considers doing so of its own motion it should bear in mind the principles underlying rules 25.12 and 25.13. In my judgment, the court should also bear this principle in mind when considering whether to make a conditional order under rule 24.6.

33. I therefore reject Mr Allen's submission that the jurisdiction to make an order under rule 24.6 is limited to those cases where one or more of the conditions in rule 25.13(2) is satisfied and where the party concerned can be seen regularly to have flouted court procedures or orders or otherwise demonstrated a want of good faith.
34. I must now consider the other matters upon which the parties have relied in the light of these principles.

Strength of the case

35. In paragraph [86] of my judgment of 14 October 2010, I said:

"Applying these principles in the context of the present case, the similarities upon which Mr Allen relies seem to me to constitute ideas which are relatively simple and abstract and I strongly incline to the view that they are at such a high level of generality that they fall on the ideas rather than the expression side of the line. However, I do not feel able at this stage to say that Mr Allen's case is so bad that I can properly describe it as fanciful."

36. I concluded that it is improbable that the claim will ultimately succeed. In the result, the application for summary judgment failed by the narrowest of margins. This is not a case which is merely somewhat weak and it is, in my judgment, one of those occasions where the prospects of success are so poor that they do justify the exercise of the jurisdiction conferred by rule 24.6.

Mr Allen is a nominal claimant

37. A nominal claimant is a person who is a claimant in name but in truth sues for the benefit of another: Semler v Murphy [1968] 1 Ch 183 at 191.
38. The reason for the appointment of Mr Allen as trustee of the Estate is far from clear. As I have indicated, Mr David Markson's evidence is that Mr Jonathan Jacobs was advised that it was "appropriate that the Estate appoint a trustee for the conduct of litigation in the UK" as long ago as 2003. Mr Jonathan Jacobs' account is that he was advised it was appropriate to appoint a trustee for this purpose in about May 2008. Mr Allen, on the other hand, says that he was appointed having been told it was a "legal necessity". In each case, the source of the alleged advice and the basis for it have not been disclosed. More importantly, perhaps, the advice was wrong. There was no need for Mr Allen to be appointed and Mr Jonathan Jacobs could have brought the proceedings himself.
39. Moreover, despite his appointment, Mr Allen does not appear to have taken any more than sporadic steps as trustee. He has made clear he has no connection with the dispute; that, in practice, Mr David Markson and Mr Foley have provided day-to-day instructions to DMH Stallard; that he has had no role whatsoever in the raising of funds for the Estate; and he has absolutely no financial interest in the outcome of the proceedings. His involvement in the case stems, he says, purely from the fact that he is representing the Estate in the UK as its trustee.
40. In my judgment, Mr Allen is indeed a nominal claimant who is suing for the benefit of other persons, including Mr Jonathan Jacobs as the sole beneficiary of the Estate. Having accepted his appointment, Mr Allen is, however, potentially liable to the defendants for the costs of the action if it fails although, as I have said, he has the benefit of an indemnity from Mr Jonathan Jacobs.
41. In his third witness statement dated 24 October 2010, Mr Gideon Benaim, a partner in the firm of Schillings, the solicitors now acting for Ms Rowling, explains his concern that Mr Allen will not be able to satisfy any significant costs order made against him. Those costs will, it is clear, be very substantial indeed and are currently estimated to exceed £2 million. Mr Allen has, however, made no disclosure of his assets or income. All that is known is that he is a property developer and in 2008 owned three separate residential properties.
42. In all these circumstances there is, in my judgment, reason to believe that Mr Allen will not be able to pay all of the defendants' costs if ordered to do so. This is a case which satisfies the condition in CPR r.25.13(2)(f).

Want of good faith

43. The defendants further contend that Mr Allen or, more particularly, those backing and giving instructions in these proceedings, have demonstrated a want of good faith.
44. As I explained in my judgment of 14 October 2010, the claim was first raised a very long time ago. On 24 March 2004, Gibson Young, the solicitors then acting for Mr Jonathan Jacobs, wrote to Ms Rowling asserting that Mr Jonathan Jacobs owned the copyright in WTW and that it was evident from an analysis of the five published Harry Potter books that Ms Rowling had knowingly copied and plagiarised WTW. They continued that it was evident that Ms Rowling had carried out this breach of copyright in a calculated and systematic pattern over a period of many years. They enclosed a copy of WTW with what they described as the first volume of their evidence and a copy of the initial forensic linguistic expert's report. That volume of evidence was entitled "Evidence of Plagiarism Volume 1" ("EOP1") and extended to 194 pages.
45. At this stage, Mr Jonathan Jacobs did not have any basis for asserting ownership of copyright in WTW; it remained in the ownership of the Official Receiver in Mr Jacobs' bankruptcy.
46. The allegation was refuted and despite a good deal of correspondence over the next few months, it was not taken further.
47. On 26 June 2008, DMH Stallard wrote to Reynolds Porter Chamberlain, who were at that time instructed by Ms Rowling, stating that they were now instructed in place of Gibson Young.
48. On 2 July 2008, DMH Stallard wrote to Reynolds Porter Chamberlain stating that they were instructed by Mr Allen and the "solicitors for the Estate" and renewing the allegation of copyright infringement by Ms Rowling in writing the Harry Potter books and, specifically, Harry Potter and the Goblet of Fire ("Goblet"). Copyright was now asserted not just in WTW but also HA. No explanation was given for the failure to take any action from 2004 to 2008 save for an assertion that a great deal of work had been done on the matter in the interim. The letter continued that Mr Allen believed that he had sufficient evidence to prove that significant themes, plots and incidents in each of the first five Harry Potter books were taken from WTW and HA but at that stage Mr Allen was referring to those similarities only in the context of evidence of access. He intended, the letter continued, to limit his claim to one clear case of copyright infringement, namely Goblet. Enclosed with the letter were draft particulars of claim which asserted that Ms Rowling had deliberately concealed her infringing activities. Annex A contained details of what were said to be the plots, themes and incidents in WTW and HA which had been copied in Goblet, but they are structured in a totally different way to the case now presented.
49. The allegation was again refuted in correspondence and, despite a letter from DMH Stallard dated 5 November 2008 which asserted that counsel had been instructed to finalise the particulars of claim so that the claim form could be issued and served without delay, the matter again fell quiet, this time for a period of about seven months.
50. On 11 June 2009, DMH Stallard wrote to Reynolds Porter Chamberlain, who were by this time instructed by Ms Rowling and Bloomsbury, informing them that proceedings would be commenced the following week against Bloomsbury for infringement of copyright in WTW by the publication of Goblet. No further complaint was made in respect of HA.
51. The claim against Bloomsbury was issued on 15 June 2009 but Ms Rowling was not joined into the proceedings until February 2010, nearly six years after the original complaint. The claim form was served together with particulars of claim and with annexes detailing alleged similarities between the plots, sub-plots, themes and incidents in WTW and Goblet. It was essentially this reformulated case that I considered in my judgment of 14 October 2010.
52. Despite this reformulation, Mr Nicholas Kounoupias, a partner in DMH Stallard, has explained in a witness statement dated 7 May 2010 that Mr Allen still relies upon EOP1 and, in addition, two further volumes, EOP2 and EOP3. EOP2 comprises a comparison of HA with the first five books in the Harry Potter series and extends to 65 pages. It therefore introduces into the case a whole series of allegations relating to different works. EOP3 comprises a comparison of WTW with Goblet and extends to 164 pages. While this is now restricted to the alleged copyright work and the particular Harry Potter book which is alleged to infringe, it addresses the alleged similarities in a quite different way to the pleaded case. It identifies some 10 ideas in WTW which are said to be new to the genre but which do not correspond to the case as currently pleaded. In the result, the defendants are now facing a claim of considerable complexity which is formulated in multiple ways.
53. Moreover, in my judgment of 14 October 2010, I found that aspects of the claim in respect of the five main elements of plot architecture were unsustainable. After judgment, Mr Allen indicated that he wished to amend the particulars of claim and, as a result, paragraph 4 of the consequential order dated 21 October 2010 required Mr Allen to serve any such application by 28 October 2010. However, despite seeking an extension of time, Mr Allen has ultimately decided not to do so.
54. Accordingly, it appears Mr Allen is still pursuing aspects of his claim which I have rejected. In particular, he asserts that the main characters are required to deduce the exact nature of the main task despite my finding that Willy (the main character in WTW) is not required to engage in any process of deduction. Further, he asserts that both main characters uncover the nature of the main task covertly despite my finding that there is no suggestion in WTW that Willy is acting covertly.
55. In my judgment, the combination of the delay in pursuing the claim, the complex and wide-ranging way it has been formulated, and the pursuit of aspects of the claim I have found to be unsustainable do demonstrate the lack of a will on the part of those behind this claim to prosecute it as expeditiously as possible in accordance with the overriding objective.
56. Moreover, those behind the claim have also engaged in what I think the defendants fairly describe as thinly veiled threats to publicise the allegation that Ms Rowling has engaged in plagiarism.
57. On 15 April 2004, that is to say shortly after the letter from Gibson Young dated 24 March 2004, Mr Max Markson wrote to Ms Rowling in the following terms:

"I have been instructed by the estate of Adrian Jacobs to deal with the marketing of the publicity, film, TV and cartoon rights etc of both Vol 1 of The Adventures of Willy the Wizard, Livid-Land, and its sequel Vol 2, Holiday Antics.

I am also retained to handle the public relations and publicity aspects arising from any action or disclosure of the matters arising in the proposed proceedings.

In my opinion, there is an opportunity to deal with this matter discreetly and privately and I have suggested to Gibson Young a without prejudice meeting to see if there is an amicable way forward."

58. The letter was signed by Mr Max Markson as managing director of "Markson Sparks".
59. Mr Max Markson's letter was followed on 22 April 2004 by two telephone calls from Mr David Markson to Mr Little, Ms Rowling's agent. In the first call, Mr David Markson invited Mr Little to a meeting about the claim and suggested it had serious implications for Bloomsbury and Warner Brothers. Mr Little told him that he had no intention of meeting with him. Shortly after the call, Mr David Markson called a second time saying that he had relayed the substance of his conversation with Mr Little to the Estate's solicitors and that they had set the legal processes in motion.
60. On 28 April 2004, Gibson Young wrote to Reynolds Porter Chamberlain offering an explanation for these communications. They said that Mr Jonathan Jacobs thought it appropriate to suggest a without prejudice meeting to discuss his claim and that he asked Mr Max Markson to offer such a meeting in his capacity as Mr Jacobs' agent. Mr David Markson then telephoned Mr Little with an identical offer. Despite this letter, I consider the implication of the communications was tolerably clear: if Ms Rowling was not prepared to settle the claim in an acceptable manner then she should be prepared for unwelcome publicity.
61. After the revival of the claim in 2008, a website appeared publicising WTW. This was followed in 2009 by the issue of a press release stating that the Estate had issued proceedings in the High Court against Bloomsbury as, "the publishers of the multibillion dollar Harry Potter series claiming copyright infringement" and that, "Sydney celebrity publicist Max Markson, who was promoting the action, said that damages could be up to $ 1 billion".
62. At about the same time, Mr Max Markson gave an interview on Australian television stating that the case had cost over $ 1 million, that it was being funded by well-wishers and friends of Mr Adrian Jacobs and his estate, and that he was conducting a PR campaign "pro bono".
63. It is, I think, clear that Mr Max Markson and Mr David Markson, having failed to secure a settlement of the claim in 2004, have now set about publicising the action and WTW with a view to exerting pressure on the defendants and promoting the sales of WTW.

Will the order sought stifle the claim?

64. The approach to be adopted in considering this issue was explained by the Court of Appeal in Al-Koronky v Time-Life Entertainment Group Ltd [2006] EWCA Civ 1123 at paragraphs [27]-[31]:

"27. This said, it is both clear on authority and requisite in principle that a claimant resident abroad who wants to ensure that any security he is required to put up is within his means must be full and candid in setting out what his means are. True, as Park J noted in Brimko Holdings v Eastman Kodak Co. [2004] EWHC 1343 (Ch), §12:

'… the court should not press too far the proposition that the burden [of showing that an order in more than a certain sum will stifle the claim] rests on the claimant. It should be recalled that when the claimant has to establish that third parties do not exist from whom security can reasonably [be] expected and obtained, that is to place on the claimant the burden of proving a negative.'

But this does not relieve the court of the need to scrutinise as much as it is told with a critical eye and to note unexplained gaps in the information which the claimant volunteers or in the documentary support for it. Unless the court were prepared to draw adverse inferences from such lacunae, a claimant would have only to deny that he can find the sum asked in order to avoid an order.

28. It follows that the court, once satisfied that the case is one in which the claimant ought to put up security for the defendant's costs before continuing with his action, is going to find itself in one of two situations. Either it will be satisfied that it probably has a full account of the resources available to the claimant, in which case it can calculate with reasonable confidence how much the claimant can afford to put up; or it will not be satisfied that it has a full account, and so cannot make the calculation. Does it follow in the latter situation that the court must go straight to the amount sought by the defendant and, having pruned it of anything which appears excessive or disproportionate, fix that as the security? Or is there a middle way - for example to set an amount which represents the court's best estimate of what the claimant, despite having been insufficiently candid, can afford?

29. In our judgment there is such a power, but it resides in the court's discretion rather than in legal principle. In the second situation we have postulated, the requirements of the law have been exhausted: what remains is to set a suitable sum. This classically is where discretion fills the space left by judgment: the court has a choice of courses, none of which it can be criticised for taking provided it makes its election on a proper factual basis uninfluenced by extraneous considerations.

30. We agree with the submission of Mr Shaw for the claimants that article 6 of the European Convention on Human Rights has a bearing on this issue, by virtue of s.3(1) of the Human Rights Act 1998 which requires both primary and subordinate legislation to be read and given effect, so far as possible, compatibly with the Convention rights. In Tolstoy Miloslavsky v United Kingdom (1995) 20 EHRR 442, §59, the European Court of Human Rights held, what it has since reiterated, that while the state has power to regulate access to its courts, it must not do so in ways which 'restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired'. The court also insisted on 'a reasonable relationship of proportionality between the means employed and the aim sought to be achieved'. The domestic obligation to read CPR 25.13 conformably with the law of the Convention is met, we believe, by the approach taken in this judgment and, in particular, by the principle that the court may not fix security in what it knows to be an unaffordable amount.

31. It is in the context of what we have said so far that, in our respectful view, the judgment of Peter Gibson LJ in Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534, 539-40, and that of Potter LJ in Kufaan Publishing Ltd v Al-Warrak Publishing Ltd (1 March 2002, unreported), should be read. There is a clear difference between incurring a substantial risk, in the overall interests of justice, that a claimant will not be able to raise the sum required as security, and setting a sum in the knowledge that he cannot do so. The latter is tantamount to striking out his claim and requires the same process and justification as any other strike-out. The former is the striking, within the Convention paradigm, of a balance of the kind described in the two judgments we have mentioned."

65. I also have in mind these observations of Peter Gibson LJ in Keary Developments Ltd v Tarmac Construction Ltd [1995] 3 All ER 534:

"The court should consider not only whether the plaintiff company can provide security out of its own resources to continue the litigation, but also whether it can raise the money needed from its directors, shareholders or other backers or interested persons. As this is likely to be peculiarly within the knowledge of the plaintiff company, it is for the plaintiff to satisfy the court that it would be prevented by an order for security from continuing the litigation…"

66. I must therefore consider whether I have a full account of the resources available to Mr Allen, whether he and those backing him have been full and candid in setting out what their means are, and whether he can raise the amount needed to meet an order for security from his backers and other interested persons.
67. Taking first Mr Jonathan Jacobs, no evidence has been filed by or on behalf of Mr Allen explaining the extent of Mr Jonathan Jacobs' means and I have no evidence to suggest that he would not be prepared to provide the funds needed to meet an order for security for costs. I recognise that in his witness statement dated 21 April 2010, Mr Jonathan Jacobs maintains that he has entered into no agreement of any kind with Mr Allen which involves him paying for Mr Allen's legal costs, that he does not have any contractual right to any monies which Mr Allen may recover in the proceedings and that he has no control over how the proceedings have been or will be conducted. This is contradicted by Mr David Markson's evidence that everything he has done has been for the benefit of the Estate and with the sanction of Mr Jonathan Jacobs. But perhaps more importantly, Mr Jonathan Jacobs' evidence does not establish that he would not be prepared to provide security were it to be ordered. He is, after all, an obvious beneficiary of the claim as the only beneficiary of the Estate.
68. Turning to Mr David Markson, he says that the, "stifling tactics of the defendants and the continued expense to which we are being put are making it nigh on impossible to raise further funding". However, the friends and well-wishers who have apparently provided funds hitherto have not been identified. Nor has any explanation been given as to the basis upon which they provided those funds. Moreover, funds have also been raised to pursue parallel proceedings in New York against Ms Rowling's US publishers, Scholastic Inc and, for that purpose, to instruct the law firm Andrews Kurth LLP. It seems that three partners from different parts of the USA were engaged and a Washington-based partner flown to New York to preside over a press conference. In addition, the Swiss law firm Lenz & Staehelin has been hired to "co-ordinate the global litigation".
69. The way in which the claim has been funded hitherto is also very obscure. It seems that DMH Stallard has been instructed by Foleys, Mr Foley's law firm. Two notices of funding dated 19 July 2009 have been served. One is said to be in respect of a CFA dated 19 September 2008 between DMH Stallard and Foleys and the other in respect of a CFA dated 4 November 2008 between DMH Stallard and Mr Allen's junior counsel. Both notices say the litigation was being funded by the CFA in question. Under the terms of the CFAs, DMH Stallard and junior counsel are paid two-thirds of their hourly rate with the balance deferred. Mr Allen's leading counsel has not, however, acted on a CFA. It is, I think, a reasonable inference that DMH Stallard are, therefore, liable for the non-deferred element of junior counsel's fees and all of leading counsel's fees in the usual way.
70. As for Foleys, they are presumably liable for the non-deferred element of DMH Stallard's fees and for the non-deferred element of junior counsel's fees and all of leading counsel's fees. Mr David Markson said that Foleys agreed to act themselves on a success fee only basis together with their expenses. Precisely how the costs liability of Foleys has been or will be discharged has not been explained. Moreover, Mr David Markson's evidence that Mr Foley agreed to act on a success fee only basis is inconsistent with an email sent by Mr Foley to Reynolds Porter Chamberlain on 11 December 2009 in which he stated that his fees were payable by the Estate. However, Mr Allen says that he has not retained Foleys and the estate itself is insolvent.
71. It follows, in my judgment, that the evidence is far from full or candid in setting out the means available to Mr Allen and I am wholly unsatisfied that Mr Allen will be prevented by an order for security from continuing with the litigation.

The defendants' conduct

72. Finally, I turn to the allegations of misconduct by the defendants and those acting for them.
73. First, it is said that the defendants have appointed private investigators and that the activities of those investigators have extended beyond acceptable commercial practice and may have involved illegal acts and behaviour. Specifically, Mr David Markson says that a complaint about his activities was made to the police and that in 2009, certain convictions he received in 1989 were made public on a Harry Potter fan website. Mr Allen says that in late 2008, three refuse bins were stolen from outside separate residential premises he owns; that in June and November 2009, he was approached by private investigators trying to find out information about him, one called Michael Looney, purporting to be a property developer, and the other called Mark Taylor, purporting to be an employee of the East Herts Council; and that in December 2009, his computers mysteriously crashed.
74. All of these allegations have been answered by Mr David Hooper, a partner in Reynolds Porter Chamberlain, dated 28 February 2011. He explains that the defendants have indeed instructed private investigators but that he is entirely satisfied they have at all times acted lawfully. He continues that Mr David Markson's criminal convictions are a matter of public record; that no refuse bins have ever been taken from outside Mr Allen's residential premises; that no investigation was ongoing into Mr Allen in 2009 at the time he was approached by Mr Looney and Mr Taylor; and that similarly there was no investigation ongoing at the time that Mr Allen's computers developed problems. He accepts, however, that a complaint was made to the police about the initial claim made by Mr Jonathan Jacobs because the defendants believed they were likely to be the victims of an extortion plot. This is a matter about which the defendants have always been open.
75. Second and more substantively, Mr Allen complains that Ms Rowling has repeatedly refused to disclose her manuscripts and now is in breach of the order of this court made on 21 October 2010 giving directions for trial, including a direction that each party must give standard disclosure by Friday, 11 March 2011, that is to say shortly before the commencement of this hearing. Mr David Markson also contends that it must have been obvious to the defendants that their application for summary judgment was bound to fail, yet they continued with it knowing that by doing so they would force Mr Allen to incur very heavy legal expenses which he and his backers could ill afford.
76. As for disclosure, the defendants are frank that this process has not commenced. Disclosure was not due at the time of the hearing of the summary judgment application, and the directions for the further conduct of the action contained in the order of 21 October 2010 were given in anticipation that this further hearing concerning the conditional order would take place before the end of that year. In the event, it was fixed for this week for the convenience of Mr Allen's counsel. Similarly, I do not consider that there is anything in the allegation that the defendants must have known that their application for summary judgment was bound to fail. To the contrary, it seems to me to have been an entirely reasonable and proper application to have made, as reflected in my conclusion that it is improbable the claim will succeed.

Conclusion

77. For all the reasons I have given, I believe that justice demands that I make a conditional order requiring Mr Allen to provide security for the defendants' costs. The precise amount of that security must depend upon my order in relation to the costs of this summary judgment application, as to which, at the request of the parties, I will hear further short submissions. If security is provided, then I see no basis for requiring Mr Allen to identify the funders of the claim. If it is not, the claim will fall to be dismissed. Accordingly, I decline to require Mr Allen to identify those funders.

[After further submissions on the issue of costs of the application]

78. I must now deal with the issue of the costs of this application. The principles which the court should apply in exercising its discretion as to costs are well known and set forth in CPR Part 44. In my judgment, the relevant factors in the context of this particular application are these. First, the application was a single application for summary judgment or, in the alternative, for an order that Mr Allen be required to provide security either as a condition of being allowed to continue with his claim pursuant to CPR r.24 or pursuant to CPR r.25.
79. Second, I think it is fair to say that each side has enjoyed a measure of success. Mr Allen has succeeded in defeating the part of the application which sought summary judgment. The defendants have succeeded on the part of the application which sought security for costs.
80. Third, there is, in my judgment, a considerable overlap between these two aspects of the application in that I have found it appropriate to require Mr Allen to provide security as a condition of being allowed to proceed with the claim because it is improbable that it will ultimately succeed. It would, accordingly, be extremely difficult to disentangle the costs which relate to each of them.
81. Fourth, a significant proportion of the costs have been incurred in relation to matters which are relevant to and necessary for the determination of the substantive claim including, most importantly, the evidence relating to the issue of the alleged access of Ms Rowling to WTW and the issues of similarity and substantial reproduction.
82. Finally, even though the defendants have failed to secure summary judgment, the application was, for the reasons I have given, an entirely reasonable one to bring and, as I have observed in the course of submissions, it was defeated by the narrowest of margins.
83. For all of these reasons, I have reached the clear conclusion that the just course is to direct that the costs of the application be costs in the case.

[After further submissions on the question of quantum of security]

84. I must now decide what sum to award by way of security. I have before me an estimate of Bloomsbury's costs to date and to carry these proceedings through to a conclusion in the total sum of £723,819. I have a similar estimate of Ms Murray's costs in the total sum of £1,644,660. The combined total of the defendants' costs is therefore £2,368,479. By contrast, Mr Allen estimates that his costs to date, excluding the deferred element, are some £800,000 and that he will incur further costs of about £500,000 to carry the proceedings through to a conclusion.
85. In deciding what sum to award by way of security, I bear in mind that I should not make an order that will deny Mr Allen access to justice although, for the reasons I have given, I have reached the conclusion that I have inadequate information in this regard from Mr Allen, and that he has been far from full and candid in setting out the means available to him. Accordingly, this is not a factor to which I believe it is appropriate to attach great weight.
86. Other criticisms of the defendants' costs estimates do, however, seem to me to have more substance. I recognise that Mr Allen has chosen to sue two separate defendants but I question whether they each need to be represented by leading and junior counsel. Moreover, the estimates for the fees that may be incurred in that regard do seem to be unreasonably high. Further, although I recognise the serious nature of the allegations made and the importance of the case to both defendants, the defendants' estimates do seem to me to include costs in respect of unduly large numbers of separate fee earners, excessive communications with clients, and unwarranted time for consideration of disclosure and preparing experts' reports. At this stage any attempt to estimate the costs that are likely to be recovered must necessarily be fairly rough and ready in light of the difficulty in assessing the extent of the work that remains to be done. But doing the best I can in all the circumstances, I have reached the conclusion that the proportion of the defendants' cost estimates I should require Mr Allen to provide by way of security is 65 per cent.