England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13 March 2008

(The applicant is not sufficiently near a microphone to be audible)

MR JUSTICE MACKAY: Mr Parkes, Mr Smith, have you seen a letter from Mr Smith dated 13 March?

MR PARKES: Yes, my Lord, I have.

MR JUSTICE MACKAY: Mr Smith asks me in that letter whether I would agree to an expert instructed by him being supplied with ten specimen postings to retrieve from your client's computers, and he would thus be able to verify how long it took to do that. I imagine you oppose that notion, do you?

MR PARKES: Yes, my Lord, I certainly do, not least because Mr Chambers was here yesterday and I tendered him.

MR JUSTICE MACKAY: Yes. Mr Smith, I have read your letter. Is there anything you want to say additional to it that is not in that letter?

THE APPLICANT: Well, the expert concerned is the (inaudible) .....whether or not the respondent was telling the truth.

MR JUSTICE MACKAY: Yes. The problem is, Mr Smith, this is what we call an interlocutory application. It is an application that does not lend itself to oral expert evidence because if I let your expert in to have a look -- even if it were right to do so on such an application -- the opportunity would have to be given to the respondent to call its own independent expert and then we would have a trial on our hands and trials take time and you have not got time.

THE APPLICANT: My Lord, that is right.

MR JUSTICE MACKAY: So, I am afraid, I understand why you made the application but I am not prepared to adjourn this matter further to enable that to take place.

THE APPLICANT: Would it be taken into account, my Lord, on the matter of security that the respondent is seeking?

MR JUSTICE MACKAY: You had better listen to the judgment which is now coming up and decide what to say about that.

J U D G M E N T:

MR JUSTICE MACKAY:

1. The claimant, Mr Nigel Smith, describes himself as the coordinator of the Langbar Action Group, which is a group of shareholders of a company which has been listed on the Alternative Investment Market, who say they have suffered loss due to the fraudulent direction of that company by its then directors. There is litigation going on elsewhere in the High Court about that.
2. The defendant operates a financial information website which includes bulletin boards. It is not in dispute that these can be accessed by anyone who wants to on a simple process of registration. Indeed, Mr Smith himself is registered on it. The would-be user is asked for his real name and address, which he may or may not give accurately. He is asked to provide a user name or (as the rather pompous and inaccurate word that is used puts it) an avatar. He is given a password. He is charged no money. His status is not scrutinised in any way. On registration he is free to access the bulletin board. When he registers, his IP number (which is the same as an IP address) will be captured by the defendant's system in general terms. Provided the would-be user uses the same computer, that is a constant number, though it may change (in circumstances which I do not need to go into) from day to day. However, the user can access the bulletin board from any computer -- somebody else's or an internet cafe or wherever. To discover the true identify of a user who has posted a particular message on the bulletin board, it is necessary to get behind his cloak of anonymity, it being unlikely that many of them will have given their true names to the defendant. That can be done only through his internet service provider, who is more likely to have a real name because he is in a financial commercial relationship with the user.
3. Major differences have arisen between Mr Smith and certain members of this group. I have only Mr Smith's side of the story, but I summarise it in this way. He says that he does what he does for the group on an entirely altruistic basis in order to right the injustice that he considers that the shareholders suffer. He makes no financial charge or recovery. He was not himself a shareholder in Langbar. He has had some level of success in his efforts on the group's behalf. In return he has been unfairly turned on for his pains by a faction within the group who have posted defamatory comments on him on the defendant's website.
4. On 20 April 2007 he went to court before His Honour Judge Hickinbottom (sitting as a Deputy Judge) and obtained ex parte a Norwich Pharmacal order for the disclosure of details relating to these individuals. Four days later, on 24 April, he came back before Gray J and this time the defendant was represented by counsel. The order that was made on that occasion was in these terms:

"1. The defendant provide the claimant with full contact details of the following avatars which are within its possession by twelve noon on 25 April 2007."

There are then set out the pseudonyms of 23 avatars who had been responsible between them for 109 discrete postings. The previous order as to what should be disclosed was re-defined in these terms:

"The details in paragraph 1 to include the registered name, address, e-mail address and IP address of each of those persons."

There was a claim for an injunction, which was adjourned. There was then an order, as is normal in such applications, that the claimant pay the defendant's costs summarily assessed at £6,512.50, with £1,000 to be paid before 22 May, and liberty to apply as to the date by which the balance must be paid. Fifthly, the claimant (again as is normal) was ordered to pay the defendant's costs of complying with paragraphs 1 and 2 of the order, to be assessed if not agreed.

5. By the end of January 2008 it is common ground that Mr Smith had honoured his obligations to pay the defendant's costs of the hearing and of complying with the order. The costs of complying with that order were modest (something under £100). The defendant construed that order as requiring it to supply the registered IP address of each avatar, that is the address that the avatar gave at the date when he or she initially registered with the defendant. Consistent with that construction of the order, it supplied 18 avatars' IP numbers. The others had not been caught because at the time of their registration the software was not in place to do so. Of those 18, some have been successfully pursued by Mr Smith; some have apologised; some have even paid money to him.
6. Mr Smith considers that that was an incorrect construction of the order and that the defendant was in breach of its terms. He has taken no breach proceedings, but has issued the application I am now considering.
7. I am afraid I consider that Mr Smith is wrong in his construction. To be pedantic, the word "registered" in paragraph 2 governs "name", "address", "e-mail address" and "IP address". I am satisfied that, in acting as they did, the defendant complied faithfully with the terms of that order.
8. However, Mr Smith says that that order was not adequate for his quest, which is to discover the real identities of the people who, he says, have been defaming him, and defaming him in a concerted way. Hence this application issued on 27 February for wider disclosure. The exact relief Mr Smith has asked for has varied. That is not a criticism of him. It has been narrowed down to two possible draft orders, which I shall call "Option 1" and "Option 2".
9. In Option 1 there are listed 252 different postings by 64 different avatars on varying dates between April 2007 and the present date. Option 2, by contrast, limits the number of postings to 100. Those are the postings made by the avatars whom Gray J considered when he made his order last year. Significantly in each case the details that Mr Smith seeks are the name, address and e-mail address of each avatar, together with the IP number for the avatar at the time of each alleged defamatory posting as listed below. He lists the dates and post numbers of each of the individual postings. He says that it is necessary so he can trace those who, he says, have defamed him because they will not necessarily be using the same IP number at the time of any relevant posting as that which was captured on their initial registration. Therefore he cannot go to their internet service providers with a similar application and then identify them.
10. Option 1 specifies 252 postings. Mr Smith, in his immaculate presentation of the documentation in this case, lists every one of those in tab 8 of his main bundle, together with a commentary by him in each case. That amounts to 132 pages of text.
11. Option 2 limits the range of the order. It does not go beyond those avatars who were the subject of the previous order by Gray J.
12. In each case the second paragraph of the draft order asks in addition that where multiple IPs are recorded for an avatar on the day of the alleged defamatory posting, the respondent should supply all the IP numbers captured for that avatar on that day, indicating if possible which was captured at the time of the alleged defamatory postings. So if an avatar made three postings -- two innocuous and one allegedly defamatory -- that would enable Mr Smith to identify. Mr Smith has indicated that he does not press for paragraph 2.
13. Mr Parkes, who opposes the making of this order, has indicated that if it is made in either of the forms, once the means is set up for providing any of this information, the addition of paragraph 2 is not in itself additionally onerous.
14. This is, therefore, the most complex and ambitious Norwich Pharmacal application that this court has encountered, but that in itself is not necessarily an obstacle to its success. The claimant, as will be apparent, is a litigant in person. He is a very competent and determined litigant. He has presented his written material and argument with skill.
15. Traditionally, these applications are approached as non-adversarial occasions. It has been less easy to maintain that in this particular application because the claimant has also, and separately, sued the defendant in parallel proceedings for defamation based (as I understand it, though I have not looked in any way at the detail of that claim) on allegations that they have failed to remove defamatory material which has been pointed out to them as being such. It is quite apparent that there is no love lost between these parties.
16. For the defendant, Mr Richard Parkes QC has been conscious of the need not to stray over the line and convert this into an adversarial application. He has managed not to do so, on occasions with a certain amount of difficulty. I am grateful to him for his submissions on the law, about which the claimant is familiar. There are no contentious legal propositions, as I understand it.
17. In the case which gave this application its name, Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133, Lord Reid set out the principles as follows:

"If, through no fault of his own, a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing, he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him information and disclosing the identify of his wrongdoers."

It is by this route and on this basis that innocent parties are asked to exert themselves to the extent of co-operating with the claimant in righting the wrong he says he has suffered.

18. Three conditions were set out by Lightman J in Mitsui Ltd v Lexon Petroleum UK Ltd(?) [2005] EWHC 625 Ch at 21: (a) that a wrong must have been carried out or arguably carried out by an ultimate wrongdoer; (b) that there must be the need for an order to enable action to be brought against the ultimate wrongdoer; and (c) that the person against whom the order is sought must be mixed up in the wrongdoing so as to have facilitated it and be able, or likely to be able, to provide the information necessary to enable the ultimate wrongdoer to be sued. It is only (a) that has caused any difficulty in this application.
19. Interestingly an authority of persuasive value has been put before me which is a decision of Mr Parkes himself, sitting as a Deputy Judge of this court on 18 October 2007, in Sheffield Wednesday Football Club Ltd v Hargreaves [2007] EWHC 2375 QB, in which on very different facts he went through a number of website postings said to be defamatory and formed a summary assessment of those that were arguably defamatory and those that were not.
20. I have also been referred to Totalise Plc v The Motley Fool Ltd [2001] EWCA Civ 1897, which I have considered. It was an appeal on costs only, but certain principles were set out by the Court of Appeal which are important and to which I shall come.
21. Before Gray J there was no argument that compliance with what was then proposed by way of an order would be onerous (or unduly onerous). Although today Mr Parkes argues that Gray J's approach to the arguably defamatory requirement was not correct, at least in relation to some of those avatars embraced by the order, he realistically, and rightly, accepts that I cannot now go behind that order. That means, as I see it, that I must approach this application on the basis that that cohort of avatars (23 of them) did post arguably defamatory statements by way of postings -- 109, and that has been reduced in Option 2 at least to 100.
22. Before me the argument has focused on the important question of the burden of extracting that information. The claimant believes that it can be done very easily -- "almost at the touch of a button". He understands other websites all to have software which would enable the capture of the material that he is asking for in both forms of his present order. He says this not just because of his understanding of the industry practice, but is reinforced in it by his experiences last year. He asked the defendant's solicitors for this further information --that is more than just the IP number on initial registration in June 2007. He received a reply in these terms. Having taken other points by way of objection, the solicitor wrote:

"Nevertheless in principle ADVFN will not oppose your application for the IP addresses referred to in your draft order, provided you agree to pay its costs of dealing with the application and of making disclosure pursuant to the court order. You should note, however, that it took ADVFN some 2.5 hours to provide the details required by the order of 24 April 2007, the cost of which we are writing to you about under separate cover. To obtain the IP addresses required by your order is likely to take around eight hours of work by a senior systems administrator to prepare the relevant programme at an hourly cost of £31.47."

Mr Smith says, not surprisingly, they are saying there that the cost of this new approach is about £250, as opposed to well under £100.

23. In his witness statement of 10 March 2008, the Chief Executive Officer of the defendant, Mr Chambers, at paragraph 21 said that it is all much more difficult than that. He said that it would be necessary for a highly specialised IT technician to write a software programme which will retrieve the required information. He continued:

"I cannot guarantee it will be possible to retrieve the information required by Mr Smith or the exact amount of time it will take. Writing software for such a large task as this is an imprecise science."

Later on he said that it would be very expensive. He would estimate that their fees would be at least in the region of £50,000.

24. The claimant is, unsurprisingly, sceptical about that. Mr Parkes says, bluntly and frankly, that the defendant got it wrong. They have now gone into the matter more fully and that either of these orders would need them to commission outside contractors to take the whole database or copy it on to a different computer, construct the software and extract the information, which will take at least seven days. He now has no figure that he puts before me as to costs, that "it all depends". He offered to tender Mr Chambers for cross-examination. Mr Smith now says, "I have an expert who can look at their computers. He could take ten sample postings and he could come and tell the court how difficult or easy it is to extract the required information". Before the court knew where it was it would have, on an application of a non-adversarial kind such as this is meant to be, a full-scale trial on its hands as to a technical issue to do with the configuration and the access to this database.
25. It seemed to me quite wrong to put up Mr Chambers for impromptu cross-examination by Mr Smith. It seems to me also to be wrong to adjourn this matter to have a technical issue tried in which the defendant would probably want their own independent expert to deal with whatever the claimant's expert says. Before we knew where we were, there would be a major technical issue to be decided. That is not what ought to happen on applications of this nature in my judgment.
26. Time is a problem. There is a short limitation period for defamation actions, which is what Mr Smith is anxious to bring. These avatars are beginning to drop off the end of the limitation conveyor belt. In my judgment it is an impossible and unsuitable task for me to adapt Mr Parkes' Sheffield Wednesday approach to this case. I tested that by asking Mr Smith to nominate his top twelve postings. We looked at them together. Some of those were plainly potentially defamatory of him. Some of them were arguably defamatory of him. As for the rest, it was doubtful whether they were or were not, but much could be made of the context and the sustained nature of the attack where what might in an isolated incident be "vulgar abuse" becomes defamatory. These are difficult areas. Option 2 does not extend the challenged postings beyond those already subject to a judicial order which the defendant accepts it cannot now go behind. It has therefore the merit that I would be entitled to treat Lightman J's condition 1 as having been met. As to (b) and (c), there is no serious problem.
27. As to the exercise of my discretion, which I accept is a separate step, the Data Protection Act 1998 is engaged and covers this material. The defendant cannot merely disclose it without a court order both because of the data subject's statutory rights andbecause as individuals they had a contractual expectation of anonymity. I have to be careful because these people are not represented before me and they have rights of freedom of speech under Article 10 and this is an invasive type of order which will conflict with those rights.
28. There is a discretion to be exercised as to whether I should make an order and, if so, in what form. Option 1 would cause me great concern at this stage, even though mechanically it is no more onerous for the defendant to provide details of 252 as opposed to 100 postings once it had its system in place and the software available to do that. But in my judgment the claimant has cast his net too wide for an order of this nature. He has thrown a problem at the court (albeit fully documented) and said, "Look at these various postings, isolate the ones which are not covered by any existing relief I have, examine them on the principles set out above and find that I am entitled to an order in their respect".
29. I decline to exercise my discretion in that way. But the expense and difficulty in complying with Option 2 are very important factors which I must also have in mind when exercising discretion. It is an acute issue. Although there is the very unsatisfactory feature of the defendant's dramatic change of position in this regard, which understandably elicits suspicion on the part of the claimant, which is to an extent shared by the court, it would be wrong for me to make any finding on that on an occasion of this nature. It may prove to be the case that this relief will be a very pyrrhic victory for Mr Smith, I do not know. I have considered whether I should, and then whether I could, order him to pay some substantial money into court to abide the event of disclosure, whereupon the defendant could come to court and justify the expenditure it says it has incurred and explain what it did, how it had to do it, and why. Mr Smith, it would seem, would be entirely unable to comply with any substantial requirement of that nature. He needs to use the damages he collects to pay his way, as he has done since the last order. So such an order would give him relief with one hand and take it away with the other and that would be wrong.
30. I am impressed by the fact that, though the sums involved were much smaller they were not insubstantial, and he paid the costs of an incidental to obtaining relief on the last occasion within about nine months. That speaks well of him as a man who is prepared to honour his obligations.
31. I therefore consider that the right resolution of these issues is Option 2. The order I propose to make, and I would be grateful if the parties could prepare it in final form, would be in these terms: as to paragraph 1, as per Mr Smith's current 100 postings draft; as to paragraph 2, though Mr Smith was prepared to sacrifice that if it was the price, success or failure, I understand it to be the position that if the order is made at all, its inclusion does not significantly add to the burden of compliance and therefore paragraph 2 should remain in. As to paragraph 3, the time allowed should be seven working days, with liberty to the defendant to apply for further time in the usual way. Paragraph 4 should be as per the draft, that the claimant should pay the defendant's reasonable costs of complying with paragraphs 1 and 2. It is important to stress in the order that those costs should be reasonable in the circumstances of this application. That is the best form for the order to be in. Paragraph 5 deals with costs on which I suspect I shall now have to entertain submissions, but the basis upon which paragraph 5 is included is a false basis, in my judgment. I do not consider that the defendant failed to comply with the order of 24 April 2007.

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