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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Wheat v Monaco Telecom SAM & Anor [2017] EWHC 3150 (Ch) (12 December 2017) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2017/3150.html Cite as: [2017] EWHC 3150 (Ch)

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IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

		Rolls Building, Fetter Lane, London EC4A 1NL
		12/12/2017

See Also: Wheat v Alphabet Inc / Google LLC & Anor [2018] EWHC 550 (Ch) (26 March 2018)

Chief Master Marsh:

1. This judgment arises from a hearing on 31 October 2017 and relates to an application made by the second defendant ("Monaco Telecom") dated 9 August 2017. By that application Monaco Telecom requests the court to (a) set aside an order made on 30 January 2017 granting the claimant permission to serve the claim on Monaco Telecom out of the jurisdiction and extending time for service and (b) declare that it does not have jurisdiction, or that it will not exercise its jurisdiction, to hear the claimant's case against Monaco Telecom. Consistent with that application, Monaco Telecom filed an acknowledgement of service on 9 August 2017 stating that it intended to contest the court's jurisdiction.
2. The application is based on four grounds:

i. That the claimant does not, as required, have a much better argument on the issue of whether the claim falls within one of the jurisdictional gateways in CPR PD6B.

ii. That in any event, the claim has no reasonable prospect of succeeding. Monaco Telecom submits that the claim does not meet this test on the merits and, in addition, it is (a) an abuse of the court's process within the principle identified in Jameel v Dow Jones [2005] QB 946 and (b) the claim is time-barred in respect of all, or most, of the conduct relied upon.

iii. That England and Wales is not the proper place in which to bring the claim.

iv. That the order made on 30 January 2017 was procured by material non-disclosure.

3. The claim is not entirely easy to discern. For the purposes of the application the claim can be derived from amended particulars of claim dated 6 February 2017, served immediately after the hearing on 30 January 2017. No point is taken about whether permission to amend should have been granted on that occasion. The claim put forward in the amended particulars of claim puts forward a case which is closely intertwined as between the first and second defendants. For present purposes, only the claim against Monaco Telecom is relevant.
4. The claimant says he is the founder of a business named "theirearth.com", a business he started in September 2007. Currently it is broadcast on the internet on a server network in Germany hosted by Knipp Medien und Kommunikation GmbH ("Knipp"). He says he is the sole proprietor of the business which is based in Redhill, Surrey. The website was created to be both an original content news media site, with original journal articles and photographs, and a directory to other popular websites. The claimant says he is the owner of the copyright work that is broadcast on the site which comprises 782 articles written by him and 398 photographs taken by him. He says, and there is no issue about this for the purposes of the application, he is the author of the website content and is the first owner. He is a British citizen and, accordingly, the entire copyright work qualifies for protection under s.154(1)(a) of the Copyright, Designs and Patents Act 1988 (CDPA).
5. The principal claim against Monaco Telecom is that it has broadcast, and continues to broadcast, an unauthorised duplicate of theirearth.com. The complaint is based upon the assertion that Monaco Telecom has copied the claimant's website and has broadcast to the public a complete copy of the claimant's work. Thus, it has infringed the claimant's copyright. This assertion is supported by additional detail to which I will return.
6. The particulars of claim include two further claims:

i. The claimant says Monaco Telecom has converted the content of his website and is liable at common law for that act. At the hearing, I indicated to the claimant that such a cause of action is unlikely to prosper and is one which did not require further development. It is not in doubt that under the current state of the law, the common law tort of conversion does not apply to intangible property such as copyright; see Clerk & Lindsell 21^st edition paragraph 17-36.

ii. The claimant also alleges that Monaco Telecom was in breach of a common law duty of care owed to him and that breach of this duty has caused him mental distress. The claim does not set out any basis at all upon which such a duty is said to have arisen and it is not a claim which has any real prospect of success.

7. Therefore, the element of the claim that requires full consideration is the claim for breach of the claimant's copyright.
8. The claimant and Monaco Telecom had a contractual relationship commencing in 2007 under which Monaco Telecom assisted the claimant in setting up the website and subsequently hosted the site. The contract was subject to the law of Monaco. (In passing, I record there is no claim in contract made by the claimant and that any such claim would have had to have been made in Monaco pursuant to the terms of the contract). The claimant became dissatisfied with Monaco Telecom and in late 2008 made arrangements to transfer the site to Knipp in Germany. The move of the nameserver site from Monaco to Germany was undertaken with the assistance of a third party provider named Colibri. There is some lack of clarity about the arrangements for the transfer and the effective date when it was due to take place. Part of the difficulty arises from Monaco Telecom's case, which is not in dispute, that pursuant to local regulatory requirements it has deleted all records relating to the hosting of the website.
9. Monaco Telecom accepts that it retained a copy of the site for a period of a few weeks so as to ensure there was no difficulty arising from the transfer. However, it asserts it then deleted the claimant's site from its server and that it has not held the site or broadcast it since that date. The claimant's case is that the effective date of transfer of the site to its new host site in Germany was 18 November 2008 and there was no arrangement, as Monaco Telecom now says, for a later cut-off date, in February 2009. However, despite the way the claimant's case is pleaded, it arises on the evidence he relies upon from events commencing in May 2009 and, for the purposes of this application, the limited issue of fact concerning the precise transfer date from Monaco Telecom to Knipp in Germany is not of great significance.
10. The claimant summarises his case against Monaco Telecom in the particulars of claim the following way:

"The Claimant's first cause of action is also against the Second Defendant [Monaco Telecom] that through the deliberate use and set up of a Monaco-Telecom server post (November 20, 2008) they copied and issued to the public the Infringement (an unauthorised complete copy of theirearth.com body of work) and thus infringed the Claimant's copyright in the Work under …. the CDPA."

11. The particulars of claim continue under the heading "Background to First Cause of Action":

"2.3 February 9, 2008 - Google's cache results for the theirearth.com domain shows that Monaco-Telecom had pointed the theirearth.com domain to the blank domain at theirearth.net - this was a deliberate act to help attribute theirearth.com html created pages to a Monaco-Telecom URL and not to the theirearth.com domain as seen by Google. This was a negative action by Monaco-Telecom against the Claimant happening prior to the move of the website to Knipp in Germany (November 20, 2008) and indicative of Monaco-Telecom's true motives.

2.4 November 20, 2008 to beyond February 6, 2011. After the move of the website theirearth.com to [Knipp], Monaco-Telecom S.A.M. ran a duplicate unauthorised copy of the Claimant's website on Monaco-Telecom's Servers. Google began to index two sites in its search results-one with the URLs theirearth.com (the Claimant's site) and one with URLs www.theirearth.com the copy illegitimately broadcast by Monaco-Telecom. There is still evidence in Google search in December 2016 that there are duplicate html pages being broadcast, and not from the theirearth.com legitimate server at Knipp - this last item is subject to a full disclosure by Google as to which IP address(es) Google is indexing that duplicated theirearth.com content from in the years 2012-2016 and a confirmation of the duplication starting November 20, 2008 by Monaco-Telecom as already confirmed by the Claimant's hosting company [Knipp].

Monaco-Telecom Maintaining an Illegitimate CNAME Copy Of theirearth.com

2.4 [sic] Google allowed their global search engine to knowingly index and send search results to the illegitimate copy of www.theirearth.com on Monaco-Telecom's production servers. Monaco-Telecom broadcast the Claimant's site from the URL address prodl3.hosting.monaco.mc setting up the server with a CNAME alias of www.theirearth.com.

May 9, 2009 evidence - external monitoring website robtex.com scans Monaco-Telecom servers and finds CNAME alias server record assigned to the URL www.theirearth.com meaning Monaco-Telecom is broadcasting the theirearth.com URL long after the move of the site to Knipp nearly six months after the move that occurred on November 20, 2008.

2.5 Google is indexing the entire Monaco-Telecom duplicate copy of www.theirearth.com from the illegitimate Monaco-Telecom server address starting on November 20, 2008 running to beyond February 6, 2011. Google sending the majority of search results to the illegitimate copy.

2.6 August 4, 2009 - Google formally informed by email and by fax sent to Google's Susan Wojcicki, Vice President Products Google that they were indexing an illegitimate copy of theirearth.com off of Monaco-Telecom's production servers but they did not reply to the Claimant nor stop this practice [sic]

2.7 Both Google and Monaco-Telecom diverted the majority of the website traffic away from the legitimate theirearth.com server in Germany to Monaco-Telecom's servers.

2.8 The copying of the entire intellectual property of theirearth.com by Monaco-Telecom continued beyond February 6, 2011 (the day Knipp was instructed to block access from Monaco-Telecom's production server for the IP range 195.78.0.0 – 195.78.31.25. [sic]

2.9 July 24, 2010 - the Claimant wrote an email to Frederic Fautrier (Technical Director Monaco-Telecom) outlining the performance issues and Monaco-Telecom's involvement. He never heard back specifically from Frederic Fautrier, but received a letter from Monaco-Telecom's lawyers denying any involvement with the copying of his site.

IP Block of Monaco-Telecom Causes Correct Indexation on Knipp Servers

2.10 Once a full IP range block was made against the Monaco-Telecom server, immediately (the day after-February 7, 2011) the real theirearth.com links at the Knipp server were given full indexation by Google for a few weeks (using the command site: theirearth.com) as found on the legitimate theirearth.com server at Knipp in Germany. (i.e. absolute evidence that Monaco-Telecom was still copying and broadcasting the entire theirearth.com site on February 6, 2011.)

2.11 The Knipp location for the theirearth.com URL was clearly established in the worldwide name server registries as the legitimate DNS look-up location for the site theirearth.com and also for www.theirearth.com, and by November 20, 2008, the site had clearly 100% propagated to the new server address away from Monaco-Telecom's production server. There was never a legitimate nor evident public DNS name server broadcast for theirearth.com or www.theirearth.com domains at Monaco-Telecom after the official transfer of the site to Knipp on November 20, 2008 just a CNAME alias. Even the registered domain name of theirearth.com itself was transferred to Knipp before the website move on November 20, 2008."

[The emphasis is taken from the particulars of claim]

12. The claimant relies upon a survey undertaken by Robtex on 9 May 2009. The search, he says, shows the claimant's website hosted on the nameserver held by Knipp in Germany and, in addition, it shows a 'CNAME' referring the site to an address at Monaco Telecom. CNAME is a shortening for 'canonical name record'. It is used to indicate that a domain name is an alias for another domain name. If a CNAME is in place, servers, when resolving where requests for the IP address should be directed, refer the search to the server that is directed by the CNAME. Put more simply, it is a device by which searches may be diverted from one server to another. The Robtex search shows the CNAME having the effect of referring searches directed to the claimant's website to prodl3.hosting.monaco.mc. The claimant says this is clear evidence that as at 9 May 2009 Monaco Telecom was broadcasting the claimant's website. He describes the creation of a CNAME as a hostile act because, by that date, the nameserver was based with Knipp in Germany and that was no basis whatever for Monaco to be hosting his website. Monaco Telecom, he says, set up the server with a CNAME alias of www.theirearth.com.
13. The only Robtex survey the claimant has produced, or referred to, is the one dated 9 May 2009. There is no earlier or later survey.
14. As his case was developed during the course of the hearing, the claimant said that steps were taken by Monaco Telecom to clone his website. His case is that from May 2009 there was more than one server responding to his website and there was, in effect, a diversion of hits away from his server in Germany to the server held by Monaco Telecom. He says the cloning of his site was a deliberate act by Monaco Telecom.
15. The claimant provides evidence of three instances that illustrate his case:

i. He had taken a photograph of Lewis Hamilton, who was Formula 1 World Champion throughout 2009. He noticed that the image from his site was number one in Google Image Search and the corresponding link was in first or second position in the UK google.co.uk. However, there was no traffic to theirearth.com's server in Germany. He says the huge traffic for the keyword search "Lewis Hamilton 2009" was being diverted elsewhere by Google. He says in his witness statement:

"This analysis indicates that most of the significant traffic to theirearth.com was being diverted away form our legitimate server at Knipp Germany (IP Address: 195.138.61.130) by Google and to sent [sic] another unauthorised serving IP address. This behaviour is consistent with the evidence of our website being hosted by Monaco-Telecom S.A.M. Therefore Monaco-Telecom S.A.M. was hosting www.theirearth.com as a clone of the real server at Knipp in Germany."

ii. On 10 June 2009, the claimant uploaded three new articles at the Grimaldi Forum Press Room from the Monte-Carlo Television Festival and viewed them on Monaco Telecom's internet in Monaco. When he checked later the three articles were not on the Knipp server.

iii. In 2011, the theirearth.com site included images of a Nissan electric car. He estimates that the image would have generated at least 100,000 views per month. There was no traffic to the theirearth.com nameserver in Germany.

16. Some support for the claimant's case is provided by Knipp in a letter to the claimant dated 20 February 2013. The letter expresses a view about the position and strictly speaking is opinion evidence. However, no point was taken by Monaco Telecom for the purposes of the application. Knipp says:

"It seems two different versions of the site were shown e.g. in the Google Cache or Robtex at May 2009.

One version was showing the correct customer's content and images (from 195.138.61.130) [the authorised IP address with Knipp] and used the correct label theirearth.com the other version labelled as www.theirearth.com did show almost duplicate content, but with some different images, and that content was labelled as being cached from 195.78.26.68.

Additionally, when searching for 'theirearth' not only the correct version was referenced within the search engines search results but also the false page version (from 195.78.26.68) with an almost similar page ranking as the correct website from 195.138.61.130."

17. The comments by Knipp go on to say that the host name prodl3.hosting.monaco.mc is referenced to another IP address namely 80. 94. 98. 106 which is also operated by Monaco Telecom. There is in Knipp's comments no link between the CNAME alias and the site to which it is alleged searches were diverted.
18. The claimant's case also relies upon what he says are unexplained alternative titles that are produced when searches are made. He says the addition of extra titles relating to his site is evidence of there being an additional server that is broadcasting his site. He has provided a large number of examples of additional titles. They include a search against "site:theirearth.com Lumeneo launches" that produces through Google:

"Lumeneo Launches its SMERA Electric Car – theirearth

theirearth.com/index.php/news/lumeneo-smera-electric

1 May 2009 – the Lumeneo SMERA is a 2 passenger lithium ion battery powered electric car in a 1+1 passenger cabin configuration (the passenger sits …"

19. The claimant says that the result of this search shows Google is indexing a second HMTL page title. However, this and other examples he has provided may be the product of the approach taken by Google to create what it terms 'good titles' and 'snippets' in search results. There is no evidence about the position prior to June 2013. However, guidance from the Google under the heading "Create good titles and snippets in Search Results" which appears to have been available since at least June 2013 says:

"Google's generation of page titles and descriptions (or "snippets") is completely automated and takes into account both the content of a page as well as references to it that appear on the web. The goal of the snippet and title is best to represent and describe each result and explain how it relates to the user's query.

…

If we've detected that a particular result has one of the above issues with its title, we may try to generate an improved title from anchors, on-page text, or other sources. However, sometimes even pages with well- formulated, concise, descriptive titles will end up with different titles in our search results to better indicate their relevance to the query. There's a simple reason for this: the title tag as specified by a webmaster is limited to being static, fixed regardless of the query. Once we know the user's query, we can often find alternative text from a page that better explains why that result is relevant. Using this alternative text as a title helps the user, and it also can help your site."

20. This guidance provides an alternative explanation for the changes to titles in snippets. The claimant says Monaco cloned his site and has gone into the administration version of the site and made changes to titles and that it has been doing that throughout the period. He says the underlying pages are being changed and this is not the result of an automated process such as the one explained by Google. The page titles are being altered by Monaco Telecom manually.
21. Jack Thorne, who is a solicitor with Monaco Telecom's solicitors in London, has made two witness statements in support of Monaco Telecom's application. The claimant has made two witness statements in response. Much of Mr Thorne's evidence provides a helpful analysis of the issues and the principles upon which Monaco Telecom relies. However, importantly, he provides evidence that Monaco Telecom only provides internet services to fixed-line users in Monaco, and not elsewhere, and Google's indexing servers do not use Monaco Telecom for thie internet access. Monaco Telecom also expressly denies it made a cloned copy of the claimant's site.
22. So far as the claimant's case that there was a CNAME record on Monaco Telecom's servers in May 2009 is concerned:

i. Monaco Telecom disputes there was any such record in place at that time or any other time. Due the regulatory obligations it is now impossible to verify what DNS records were in place in May 2009.

ii. Mr Thorne makes the point that there would have been no reason to have had a CNAME record in place, particularly if Monaco Telecom is right that its copy of the website no longer existed at that date.

iii. There is some evidence based on emails dating from August 2009 that Monaco Telecom had deleted any DNS information concerning theirearth.com and this would have included any CNAME record.

iv. Monaco Telecom does not accept that the Robtex search demonstrates there was a CNAME record on its servers. Mr Thorne says: "It appears to show the results of a check of the content of the authoritative nameservers displayed". This was Knipp in 2009 and if there was a CNAME in place it may simply show that Knipp failed to update the relevant records.

v. If there was a CNAME record in place, its effect would have been that users whose internet access is provided by Monaco Telecom would be redirected to the server specified in the CNAME record. There is no evidence of what the result of such redirection would have been. Monaco Telecom says it could have been a blank page.

23. Mr Thorne emphasises that, even if the claimant's case were to be right, the claimant does not provide any evidence of his site being broadcast anywhere other than in Monaco. It follows, it is said, there can be no infringement of the claimant's copyright in the United Kingdom.
24. In support of his application for permission to serve out of the jurisdiction on Monaco, the claimant relied upon five subparagraphs of paragraph 3.1(3) of Practice Direction 6B.

Paragraph 3.1(3): Necessary or proper party to an existing claim.

Paragraph 3.1(7): Breach of contract committed within the jurisdiction.

Paragraph 3.1(9): Tort where damage was sustained within the jurisdiction or results from an act committed within the jurisdiction.

Paragraph 3.1(11): Claim relating to property within the jurisdiction.

Paragraph 3.1(16): Claim for restitution where the liability arises out of acts committed within the jurisdiction or the enrichment is obtained within the jurisdiction.

25. The majority of these grounds do not assist the claimant. Paragraph 3.1(3) is not applicable because the claimant has not obtained the permission to serve Google, the first defendant, out of the jurisdiction. Paragraphs 3.1 (7) and (16) do not apply because the claimant is not bringing his claim pursuant to a contract and is not making a claim that is properly characterised as being a claim in restitution.
26. The principal ground upon which the claimant may be entitled to rely is paragraph 3.1(9) on the basis that damage was sustained within the jurisdiction or that he has sustained damage from an act committed within the jurisdiction.
27. In his skeleton argument and at the hearing Mr Cleaver, who appeared for Monaco Telecom, submitted that paragraph 3.1(11) was not engaged because "property" did not include intellectual property. At the hearing, Mr Cleaver accepted that paragraph 3.1(11) was capable of including intellectual property within the jurisdiction but submitted that there would still need to be an infringement within the jurisdiction. The ground was considered in In Re Banco Nacional de Cuba [2001] 1 WLR 2039 [33] where Lightman J noted that the rule (it was then CPR 6.20(10)) extends to personal property and went on to remark:

"In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the court a wider jurisdiction, but since the jurisdiction is discretionary the court can and will in each case consider whether the character and closeness of the relationship such that the exorbitant jurisdiction against foreigners abroad should properly be exercised."

28. In Ashton Investments Ltd v OJSC Russian Aluminium (Rusal) [2006] EWHC 2545 a deputy High Court judge held that property included a claim for confidential information within the jurisdiction. He refers to the then current edition of Briggs and Rees on Civil Jurisdiction and Judgements where it is suggested that 'property' in this gateway is wide enough to include intellectual property. It seems this view is plainly right. I can see no good reason why 'property' should be confined to physical property whether movable or immovable. Property includes a chose in action such as copyright. The gateway, however, is confined to property within the jurisdiction.
29. The claimant must demonstrate that he satisfies each of the three tests for the grant of permission to serve out of the jurisdiction. If he fails in respect of any of these tests, permission must be refused. It is therefore necessary to take the three tests in turn and to consider the case put forward by Monaco Telecom in respect of each of them.

Much better argument

30. The first test concerns whether the claimant has a much better argument on the issue of whether the claim falls within one of the jurisdictional gateways. The test has been considered recently by the Court of Appeal in Brownlie v Four Seasons Holdings Inc [2016] 1 WLR 1814. The decision is due to be considered shortly by the Supreme Court. However, the judgement of Arden LJ, where it deals with the requirement for the claimant to have a good arguable case that the claim falls within one of the jurisdictional gateways, is largely a summary of the well-established principles that arise from the Canada Trust case. In any event, the decision of the Court of Appeal represents the current state of the law.
31. It is necessary to set out the relevant passage from the judgement of Arden LJ in full:

"[17] When the court is deciding whether it has jurisdiction, it must scrutinise most jealously the factor which gives rise to jurisdiction. As Pearson J held in Societe Generale de Paris v Dreyfus Bros (1859) 29 ChD 239, 242-243:

"it becomes a very serious question … whether this court ought to put a foreigner, who owes no allegiance here, to the inconvenience and annoyance of being brought to contest his rights in this country, and I for one say, most distinctly, that I think this court ought to be exceedingly careful before it allows a writ to be served out of the jurisdiction."

[18] The court has jurisdiction if a "good arguable" case is shown that the case falls within one of the cases set out in the CPR (known as "jurisdictional gateways"). I consider in paras 27 and 71 below what provisions of the CPR are relevant. At this point, I need to explain what is required to show a quotes good arguable case". To establish whether a good arguable case has been made out that the claim falls within one or more of the jurisdictional gateways, the court has to apply what has become known as the "Canada Trust gloss". The defendant argues that the judge failed to do this. The Canada Trust gloss is drawn from the following passage in the judgement of Waller LJ in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547, 555:

"It is also right to remember that the 'good arguable case' test, although obviously applicable to the ex parte stage, becomes of most significance at the inter partes stage where two arguments are being weighed in the interlocutory context which, as I have stressed, must not become a 'trial'. Good arguable case reflects in that context that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or unsatisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction." (Emphasis added)

[19] The approach of Waller LJ was approved by Lord Steyn in the House of Lords in that case at [2002] 1 AC 1 and by Lord Rodger of Earlsferry in the Privy Council in Bols Distilleries BV (trading as Bols Royal Distilleries) v Superior Yacht Services Ltd [2007] 1 WLR 12, para 28. However, the Canada Trust gloss requires explication. It is not easy to apply where there is a disputed issue of fact. Neither party has given disclosure or been cross-examined. Waller LJ held that the court "must be concerned not even to appear to express some concluded view as to the merits".

[20] In Antonio Gramsci Shipping Corpn v Recoletos Ltd [2012] 2 Lloyd's Reports 365, Teare J stressed the importance of not deciding issues which would have to be decided at trial. He held at para 39:

"I am bound to apply the 'Canada Trust gloss' whilst being careful not to prejudice the determination of the factual issue at trial. The 'Canada Trust gloss' does however advise the court to concentrate on whether the court is satisfied or unsatisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction. It seems to me that in a case where there is, in the main, a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial it is particularly important that the court asks itself whether the factors exist which allow the court to take jurisdiction."

[21] In my judgement, when applying the Canada Trust gloss, we are entitled to bear in mind that Waller LJ also held that (1) the test was flexible (at p 555H); (2) the court should not be drawn into deciding issues of fact (at p 555F), and (3) the decision is to be made on the material available (at p 555F).

[22] Our conclusion will not be binding at trial. However, the issue (as in Issue 2 below) may simply not matter at trial, in which case this is the only chance the parties have to air it.

[23] As submitted on behalf of Lady Brownlie, when looking for "the much better argument" the court is concerned with the question of relative plausibility. But there is also an absolute standard to be met. The words used by Waller LJ, namely a "much better argument" mean more than that, on the material available, the case is arguable. There must be some substance to it: since we are deciding a question of jurisdiction, the evidence must achieve an acceptable level of quality and adequacy. However, the standard to be attained is not that of succeeding on the balance of probabilities because there is no trial: see per Flaux J in Erste Group Bank AG, London Branch v JSC "VMZ Red October" [2013] EWHC 2926 (Comm).

[24] In any event, the court is not bound to accept a witness statement which is inherently defective, and certainly should not do so if it conflicts with other incontrovertible evidence or is unreliable for some other tangible reason, or, as Christopher Clark J put it in Cherney v Deripaska (No 2) [2009] 1 All ER (Comm) 333, para 44, "wholly implausible"."

32. Arden LJ's analysis of the way in which the much better argument test is to be applied requires the court not just to look at the case and its supporting evidence on the basis of relative plausibility but also to require the claimant's case to meet an absolute standard, namely there must be some substance to it. It must meet an acceptable level of quality and adequacy. It seems to me the court may wish to deal with these two approaches in reverse order; if the claimant's case does not meet an absolute standard, there is no need to consider it on the basis of relative plausibility. And in considering the claimant's evidence in isolation, in the first instance, the court is entitled to evaluate it in terms of its reliability. The claimant accepted that his claim against Monaco Telecom is based upon inference.

PD6B 3.1(9)

33. Copyright is a statutory right which is territorial, existing under the law of each state that protects it (see: Def Lepp Music v Stuart-Brown [1986] RPC 273). An infringement of the copyright law of Monaco gives rise to damage only in Monaco, because the harm is to an intangible right recognised under Monaco law. The jurisdictional gateway under paragraph 3.1(9) will only apply where the claimant is able to demonstrate that there has been damage within England and Wales. The claimant's case is that he has suffered loss in England because he (his business) has suffered loss here as a result of Monaco Telecom's infringements. That is because he and his business are based in England. But the damage which is relevant for the purposes of the jurisdictional gateway is not indirect or consequential loss. This was confirmed by the Court of Appeal in Brownlie. Otherwise the gateway would be extremely wide. Put another way, it does not suffice for the claimant to say that infringements of his copyright occurred in Monaco but the effects were felt in England. He is unable to surmount the jurisdictional gateway unless he is able to show either that copyright infringements or damage arising from them were occasioned in England and Wales.
34. During the course of the hearing, the claimant accepted that Monaco Telecom had not itself published his copyright work within England and Wales. His case is based upon Monaco Telecom's server being accessible by a search carried out using Google and the content of his site forming part of the indexed search that responds. He was forced to contend that Monaco Telecom is liable to him for infringing his copyright by virtue of a joint tortfeasorship between Google and Monaco Telecom. The test for joint tortfeasorship was described by Kitchin J (as he then was) in Twentieth Century Fox Film Corp v Newzbin Ltd [2010] EWHC 608 (Ch) at 108:

"… mere (or even knowing) assistance or facilitation of the primary infringement is not enough. The joint tortfeasor must have so involved himself in the tort as to make it his own. This will be the case if he has induced, incited or persuaded the primary infringer to engage in the infringing act or if there is a common design or concerted action or agreement on a common action to secure the doing of the infringing act".

35. I observe, that this test sets the bar for the claimant at a high level. There may be no direct evidence of the incitement or persuasion, but if the court is to draw an inference that it existed, there will need to be good grounds for doing so.
36. Monaco Telecom also relies upon the benefits from the "hosting" defence recognised in Article 14 of the E-Commerce Directive (Directive 2000/31/EC) as implemented by regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. Under Regulation 19, Monaco Telecom is not liable for information stored at the request of a recipient of a service as long as; (a) it does not have actual knowledge of illegal activity or information, or factors or circumstances from which the illegal activity or information is apparent or (b) upon obtaining such knowledge it acts expeditiously to remove or disable access to the information. The claimant, it is said, has not identified any basis for alleging actual knowledge of illegal activity or information. Monaco Telecom says it had no such knowledge and its case is that it has no copy of the website and has not hosted a copy of the website since March 2009.
37. The claimant referred to a decision of Tugendhat J in Vidal-Hall & others v Google Inc [2014] EWHC 13 (QB) that deals with the gateway at paragraph 3.1 (9). He relies on the passage in the judgement where the judge says:

"… in relation to claims in tort the requirements of 3.1(9)(b) obliges the court to look at the tort in a common sense way, and ask whether damage has resulted from substantial and efficacious acts committed within the jurisdiction, regardless of whether or not such acts have been committed elsewhere."

38. He also relies on the decision where at [84] the judge makes remarks about the care that is required when deciding issues in an area of developing law. The claimant submits that infringements of copyright in the circumstances set out in his claim can properly be regarded as a developing area of law and, therefore, the court should be slow to reach a concluded view against him concerning whether he has satisfied this gateway.
39. The decision at first instance was the subject of an appeal (see: [2015] 3 WLR 409) but it is unnecessary for the purposes of this judgment to refer to it. I merely observe that the judge's remarks need to be seen in the context of the claim in Vidal-Hall that involved a difficult and novel issue about data protection. The issues in this claim concerning copyright involve well-understood principles.

PD6B 3.1(11)

40. I turn to the gateway at paragraph 3.1(11). The issue here is whether the claimant is able to say that the claim against Monaco Telecom concerns property within the jurisdiction. The claimant's legal case is based upon infringement of his copyright. For present purposes it can be accepted he has copyright in the photographs and articles that were posted on theirearth.com. However, as it seems to me, that is not sufficient for the purposes of paragraph 3.1(11) because copyright is territorial. Unless the claimant can show that there were infringements within the jurisdiction of the court, it will not be possible for him to show that the claim relates to property within the jurisdiction. In effect, this gateway does not take matters any further than the gateway at paragraph 3.1(9) and does not assist the claimant. It is unlike the situation in Rusal where the confidential material that was alleged to have been hacked was housed on a server in England.

Reasonable prospect of success

41. The second test concerns whether the claimant has a reasonable prospect of success. Monaco Telecom submits that the analysis of the facts and the law arising from a consideration of the jurisdictional grounds leads to the conclusion that the claimant is not able to satisfy this test. Monaco Telecom goes one stage further and submits that even if the claimant can satisfy the first jurisdictional test, he does not have a reasonable prospect of success because (a) the court should apply the approach shown by the Court of Appeal in Jameel v Dow Jones [2005] QB 946 and (b) the claim, or a substantial part of it, is subject to a limitation defence. The Jameel test involves an application of the overriding objective. The court is concerned to ensure that judicial and court resources are appropriately and proportionately used in accordance with the requirements of justice. Put another way, adopting the phrase used by Eady J, the court has to ask whether the "game is worth the candle". In some types of claim it may be relatively easy to evaluate as an early stage the realistic likely level of the claim or its value measured in another way. Here, the claimant puts the value of his claim against Monaco Telecom at £10 million. There is, however, no attempt to provide a calculation of that sum and it is clearly nothing more than a figure plucked from the air. It is unlikely to represent the true value of his claim concerning infringements within the jurisdiction of this court, even disregarding the observations about the claim made earlier.
42. The claim form was issued on 2 September 2016. The claim relates to the entire period from the date when the claimant says the website was transferred to Knipp in late 2008 to the date of issue. Unless the limitation period is postponed, part of the claim will be statute barred. The claimant relies upon the effect of s.28(1) of the Limitation Act 1980 and contends that the limitation period did not start to run until 5 July 2012 on the ground that prior to that date he was under a disability within the meaning of that section. He has provided a detailed report from a psychiatrist, Dr Bose, which provides some support for his case on limitation. It is necessary, however, to start with the section itself. It provides:

"Subject to the following provisions of this section, if on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years from the date when he ceased to be under a disability … notwithstanding that the period of limitation has expired."

43. S.28(2) provides that a person is to be treated as being under a disability while he lacks capacity, within the meaning of the Mental Capacity Act 2005 ("MCA 2005") to conduct proceedings. The section operates so as to postpone the commencement of the limitation period only if a disability existed at the time the cause of action accrued (Purnell v Roche [1927] 2 Ch 142) and once the disability ceases time starts to run and cannot be re-paused (Seaton v Seddon [2012] EWHC 735 (Ch).
44. S.2(1) of the MCA 2005 defines a lack of capacity as where at the material time a person "… is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or the brain." And s.1 provides that a person "… must be assumed to have capacity unless it is established that he lacks capacity."
45. Dr Bose's report concludes that the claimant lacked the capacity to bring a civil claim against Monaco Telecom between January 2009 and January 2013. Between 18 October 2009 and 5 July 2012 the claimant was admitted seven times to the intensive care units of five different psychiatric hospitals with bipolar affective disorder, which is a severe psychotic illness. Dr Bose believes that he was never effectively treated during that period and he was, in Dr Bose's opinion, in a continuous state of being in an unsound mind. The claimant only responded in terms of initiating his recovery when he was given the correct medication on a continuous basis after his admission to Langley Green Hospital on 7 June 2012.

Proper forum

46. The third test is that the claimant must show that England and Wales is clearly the proper forum for determining the dispute between him and Monaco Telecom. The leading authority remains Spiliada Maritime Corp v Consulex Ltd [1987] AC 460. The starting point is to determine the forum with which the claim has 'the most real and substantial connection' and if the court concludes that another forum is as suitable as, or more suitable than, England it will refuse to accept jurisdiction, unless justice requires a different outcome. Although there is no claim based in contract, it is relevant to take as a starting point the fact that the claimant's relationship with Monaco Telecom commenced with a contract subject to the law of Monaco and a requirement that any dispute be submitted to the competent courts of the principality of Monaco. The heart of the complaint lies with the allegation that Monaco Telecom made a copy of the claimant's website and held it on a server based in Monaco and operated it from Monaco. All the witnesses about what was done in relation to that server are likely to be based in Monaco, as is Monaco Telecom. The connections with England and Wales are primarily to do with the claimant's residence here and the fact he is a British citizen.
47. The claimant alleges that it would be "almost impossible" to have a fair trial in the courts of Monaco because Monaco Telecom is owned as to 45% by the Societe Nationale de Financement, an entity that that is wholly owned by the Monegasque state. The other 55% is owned by Mr Xavier Niel, who is a French businessman. Monaco Telecom's evidence refers to a number of examples of cases brought in the Monegasque courts where findings have been made against Monaco Telecom. On any view, the threshold that the claimant would have to meet in order to make this point good, is a high one. The position is some distance from that in Cherney v Deripaska.

Material non-disclosure

48. Monaco Telecom relies on an additional ground in its application, namely that there was material non-disclosure that led to the order being made on 30 January 2017. The principles in relation to that aspect of the application are not in doubt. Although the claimant appeared before me in person on that occasion, he was under the same duty as any other litigant. The only difference between him and a professionally represented litigant is that the latter could be expected to know of the duty and, therefore, it is less likely the claimant deliberately misled the court. The duty placed on him was to bring to the attention of the court: "any matter which, if the other party were represented, that party would wish the courts to be aware of": (ABCI v Banque Franco-Tunisienne [1996] 1 Lloyd's Rep. 485 at 489).
49. For the purposes of this part of the application, it is necessary briefly to summarise the procedural history of the claim that led up to the order made on 30 January 2017. The claim was issued on 2 September 2016. On the same day the claimant applied for permission to serve the claim out of the jurisdiction on Google. He appears to have been under the misapprehension that he did not need to obtain permission to serve Monaco Telecom. On 9 September 2016, the application came before Deputy Master Arkush on paper. He ordered that the application should be served on Google. He did not, and this is now common ground, make an order granting permission to serve the proceedings out of the jurisdiction on Google. However, the claimant then purported to serve the proceedings on both parties by post in late December 2016. Service on that date was ineffective because, in both cases, permission was required and had not been granted. On 4 January 2017, Monaco Telecom's solicitors wrote to the claimant notifying him of the defects in his purported service on their client. They also asked in a letter dated 12 January 2017 to be notified in advance of any steps to be taken in the claim.
50. On 16 January 2017 the claimant applied for permission to serve the proceedings on Monaco Telecom. The application was lodged with the court but no notice was given to Monaco Telecom's solicitors. I reviewed the application 'on paper' and made an order refusing it but giving the claimant an opportunity to renew the application at an oral hearing. In addition, the order required the claimant to "show cause why the claim and particulars of claim should not be struck out for failing to comply with CPR 16.4(1)(a) and Practice Direction 16 paragraph 1.4 and failing to show in a clear and comprehensible manner reasonable grounds for bringing the claim". The claimant filed amended particulars of claim on 26 January 2017 and on 30 January 2017 appeared before me. On that occasion an order was made granting the claimant permission to serve the proceedings on Monaco Telecom and extending the time for service of the claim to 1 September 2017. Monaco Telecom was given an opportunity to apply to set aside the order within 21 days of service.
51. The claimant did not send the claim form and particulars of claim to Monaco Telecom until 19 July 2017. The version of the particulars of claim he served was one dated 6 February 2017. Thereafter, Monaco made its application.
52. At the hearing before me on 30 January 2017, the claimant told the court that his claim against Google was already proceeding, permission to serve out of the jurisdiction having been granted by the Deputy Master. This was a repetition of information contained in his application notice. The information he provided was not correct because the Deputy Master has simply required that the application be served on the first defendant. There is nothing in the Deputy Master's order to suggest that permission was being granted to serve the claim on Google. The error was material because the court granted permission to serve Monaco Telecom out of the jurisdiction on the basis that it was a necessary party to the claim. It is very unlikely permission would have been granted had the court known permission to serve out of the jurisdiction on Google had not been obtained.
53. On the same occasion, the period for serving Monaco Telecom was extended to 1 September 2017. That had the effect of ensuring that once the claim form was served, all acts within a six-year period prior to the original date of issue (from 2 September 2010 onwards) would be within the scope of the proceedings and not time-barred whereas if the claimant had been required to issue a new claim form, he would have been restricted to a different six-year period. As of January 2017, that new six-year period would have excluded almost the entirety of the period leading up to the introduction of the IP block by Knipp in February 2011.

Material non-disclosure

54. It is convenient to deal with the issue of material non-disclosure first. Monaco Telecom does not assert that the claimant deliberately misled the court on 30 January 2017 and I accept the claimant was simply mistaken when he answered questions put to him about the first defendant and the Deputy Master's order.
55. The context in which that hearing took place is significant. The application for permission to serve out of the jurisdiction on Monaco Telecom had already been considered on paper. That would have involved a review of the particulars of claim. This is clear from the order made by the court on 16 January 2017 because the court was concerned about the manner in which the claim had been pleaded and a distinct lack of clarity about the causes of action relied upon. The claimant was required to show cause why the claim and particulars of claim should not be struck out. Thus, the court was requiring the claimant not only to satisfy it that permission to serve out of the jurisdiction should be granted but also that the claim should not be struck out. There was significant overlap between the court's concern about the viability of the claim and the grant of permission to serve out of the jurisdiction, it being an essential requirement that the claim both had a reasonable prospect of success and it fell within one of the jurisdictional gateways. The court was provided with a much-improved version of the particulars of claim for the purposes of the hearing. Having been told that permission to serve out of the jurisdiction had been granted in respect of the claim against the first defendant, the claimant had a much easier task to satisfy the court that permission to serve out of the jurisdiction on Monaco Telecom should be granted because the claim against the defendants is clearly closely interlinked. Permission was granted to serve Monaco Telecom out of the jurisdiction on the basis that it was a necessary party to the claim. There is little doubt that had the court been told the true position, permission to serve out of the jurisdiction would not have been granted and time for service of the claim form would not have been extended.
56. In my judgment, the order dated 30 January 2017 should be set aside and it is right for the court to exercise its discretion in that way, despite the claimant not having deliberately misled the court at the hearing. The claimant had been expressly asked by Monaco Telecom's solicitors to inform them of any steps in the claim. He should have informed them of the order dated 16 January 2017 and told them that he was intending to renew his application on 30 January 2017. He has not provided any proper explanation for his failure to do so and I conclude he made a conscious decision that he would not comply with their request. That is not how litigation should be conducted. Even allowing some margin for the claimant's status as an unrepresented party, his conduct was both unacceptable and material. A claim form having been issued with Monaco Telecom as a defendant, Monaco Telecom was entitled to know what steps were being taken that affected it unless there were compelling reasons for keeping them confidential. No such reasons existed in this claim. Had the second defendant been represented at the hearing on 30 January 2017 it is almost certain that the order would not have been made.
57. In summary, the court was materially misled at the hearing on 30 January 2017. That was not a deliberate act by the claimant but his failure to ensure, pursuant to their request, that Monaco Telecom's solicitors were notified of the hearing was a deliberate act, not merely a matter of omission. In my judgement the order should be set aside.
58. Although that conclusion, is sufficient to dispose of the application, I will deal with the remaining points that arise on the application.

Gateway 3.1(9)

59. For the reasons I have explained, the only relevant gateway is that contained in paragraph 3(1)(9) of Practice Direction 6B. To come within this gateway, the claimant must show that there were copyright infringements of his copyright in England and Wales. Although this is not the occasion to make findings of fact, there is nothing to gainsay Monaco Telecom's evidence that it provides internet access only to those who subscribe within Monaco. Put at its highest, the claimant only has the prospect of showing infringements in Monaco. If he is to come within this gateway 3.1(9) he must show he has the better of the argument concerning joint tortfeasorship.
60. The claimant's case is that Monaco Telecom deliberately acted to copy or clone his website by use of a CNAME. There is no direct evidence about this allegation. Equally, he has not provided evidence that is sufficient for an inferential case to be made out that the actions of Monaco Telecom come within the test for joint tortfeasorship as set out by Arnold J in Newzbin. The evidence before me, which has not been contradicted, is that Google does not use Monaco Telecom when it is indexing searches. There is nothing of substance in the evidence that would enable the court to infer that Monaco Telecom induced, incited or persuaded Google to engage in infringing acts or that there was common design or concerted action by agreement between them to secure the doing of the infringing acts.
61. Leaving that crucial point aside, Monaco Telecom's evidence is that it deleted the claimant's website from its server in about March 2009 and that it has not made copies of the website since then. It is subject to a regulatory requirement to delete data within 12 months. Monaco Telecom is not in a position now to say exactly what it did in 2009. The claimant's case is based upon inference, but has no solid foundations. He is not able to show that Monaco Telecom possibly hosted his website other than for a short period after the transfer to Knipp. The CNAME was deleted in August 2009. In any event, the use of the CNAME shows, at best, a diversion not that Monaco Telecom was hosting the claimant's website.
62. The claimant's case can also be considered from a common-sense perspective. It is not clear why Monaco Telecom would have had any reason to divert traffic away from the claimant's website or to assist the first defendant in doing so. Its unchallenged evidence is that it never earned any money from any traffic that may have been diverted to an alleged copy of the claimant's website on its servers.
63. In my judgment, the claimant does not have the better of the argument whether it is looked at from the point of view of an absolute standard or relative plausibility.

No reasonable prospect of success

64. In light of that conclusion, it is strictly unnecessary to consider the Jameel and limitation points because the much better of the argument analysis leads to the conclusion that the claimant does not have a reasonable prospect of success.
65. I do not consider this is an obvious case in which to consider Jameel. It adds little to Monaco Telecom's application to rely upon the claim being an abuse of the court's process.
66. There is more substance to Monaco Telecom's case in relation to limitation. The claimant's case is based on the premise that as from November 2008 Monaco should not have retained any copy of the website on its servers. He says, relying on Dr Bose's report, that he lacked capacity from January 2009 onwards.
67. In order to succeed in showing that the whole is not subject to limitation, the claimant has to show that:

i. He was under a disability, in the sense that an impairment or disturbance of the brain made him unable to make decisions in relation to the conduct of litigation;

ii. He was under that disability at the time the relevant cause of action accrued. On his case the cause of action accrued in November 2008 when he says Monaco Telecom was no longer entitled to keep a copy of the website.

iv. He remained under that disability continuously until at least 1 September 2010.

68. Dr Bose's report is thorough, but it is right to be cautious about his conclusion because he had no first-hand knowledge of the claimant's condition in 2009 and 2010 and is reliant upon the discharge notes of Dr Rachel Chute dated 17 July 2010 following the claimant's discharge from the Centre Hospitalier Princess Grace in Monte Carlo in July 2010 after a period of about one month as an in-patient. He had previously spent time as an in-patient in that hospital in October and November 2009. The first date he was admitted was 18 October 2009. The factual basis upon which Dr Bose concludes the claimant lacked capacity from January 2009, as opposed to a later date, is decidedly thin and is largely based upon what he has been told by the claimant of his condition during that period. Clearly the claimant could have lacked capacity for some period of time before his admission to hospital in October 2009 but the emphasis in the report is on events dating from June 2009. The claimant's case is based, in part, upon the work he undertook in June 2009 and Dr Bose expresses the view that the claimant's mental health severely deteriorated from June 2009 onward.
69. I am not satisfied there is sufficient to conclude the claimant lacked capacity from the date his cause of action arose. On his analysis, his claim pre-dated the beginning of January 2009. In any event, the much greater likelihood is that there was a loss of capacity from about June 2009 at the earliest. This is based upon Dr Bose's analysis that the claimant's destruction of trust, that led to an immediate impact on his mental health, and reinforced his delusions, dates from 10 June 2009.

Appropriate forum

70. I am not satisfied that the claimant is able to show that England is clearly the appropriate forum for the trial of the claim. In this regard I am considering at this stage only the claim as between the claimant and Monaco Telecom. There is no basis for assuming that the claimant will be granted permission to serve out of the jurisdiction on the first defendant. The factors I have set out earlier in this judgment point plainly to the more appropriate forum for the trial of the claim being Monaco. His complaint is about a server based in Monaco and operated from Monaco. All the witnesses, other than the claimant himself, are likely to be based in Monaco. Although the contract between the claimant and Monaco is only of indirect relevance to the issue of the appropriate forum, it is important context. The relevant events commenced at a time when the claimant was resident in Monaco and had a contract with Monaco Telecom that contained clauses applying the law of Monaco to the contract and submitting to the jurisdiction of the courts in Monaco.
71. The concerns expressed by the claimant concerning his ability to have a fair trial in Monaco I consider to be without real substance.

Conclusion

72. As I have previously remarked, if the claimant falls at any one of the three fences that stand in his path, the claim should not proceed. In the event I am satisfied that he has failed to surmount all three fences. I am also satisfied, for the reasons I have already given, that that the order dated 30 January 2017 should be set aside for material non-disclosure. I will make an order to that effect and I will also grant a declaration in the terms requested in the application notice.
73. I will hear the parties as to any further matters that arise on the handing down of this judgement or on a convenient date to be fixed.