MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
MRS JUSTICE HILL
Between :
(1) XIULING WEI (2) WEIGUO WANG (3) YIPENG WANG (4) ANASTASIIA MARCHUK | Claimant |
- and - | |
(1) JINGPING LONG (2) DNC HOLDINGS INC (3) GATECHINA INC (4) PORKBUN LLC | Defendant |
Dan Stacey appeared for the Claimants
Greg Callus and Katya Pereira (instructed by Greenberg Traurig, LLP) for the Third Defendant
Hearing date: 12 June 2025
Written submissions on consequential matters: 11 July 2025
Approved Judgment
This judgment was handed down remotely at 2:00 pm on 14 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
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MRS JUSTICE HILL
Mrs Justice Hill:
Introduction
By a claim issued on 19 July 2023 the Claimants (“C1”, “C2”, “C3” and “C4” respectively) brought proceedings for harassment contrary to the Protection From Harassment Act 1997, defamation (libel), malicious falsehood and various privacy-related (Footnote: 1) claims against the four Defendants (“D1”, “D2”, “D3” and “D4” respectively). It was also alleged that D1 had engaged in conduct in breach of Article 8 and 10 of the European Convention on Human Rights. D1 is a private individual. The claims against him relied heavily on internet posts on various websites for which it was said D2, D3 and D4 are responsible.
This is my third judgment on the claim, the issues between the Claimants and D4 and D1 having been determined by judgments handed down on, respectively, 31 January 2025 and 11 April 2025: [2025] EWHC 158 (KB) and [2025] EWHC 912 (KB).
The effect of [2025] EWHC 158 (KB) is that D4’s challenge to the jurisdiction of the court succeeded, various applications made by the Claimants were dismissed, and the Claimants were ordered to pay D4 £58,185.50 in costs.
The effect of [2025] EWHC 912 (KB) is that D1, against whom default judgment was ordered on 10 June 2024, was ordered to pay £55,000 in damages to C1, £61,985.99 in damages to C2, £32,500 in damages to C3, £49,119.26 in costs and disbursements to C1, C2 and C3 and £16,781 to the Access to Justice Foundation to reflect pro bono costs.
By an order sealed on 17 April 2025, I approved an order by which the Claimants discontinued their claim against D2, with no order for costs.
On 2 May 2025, the Claimants served a Notice of Discontinuance of their claim on D3. The sole issue remaining in this claim, and the issue which is addressed in this judgment, relates to the costs of that claim, and specifically whether to depart from the general rule set out in CPR 38.6 that a discontinuing claimant is liable for the costs which a defendant has incurred up to the date that the Notice of Discontinuance was served.
The Claimants contend that D3 should pay their costs as they were driven to bring the claim against it and they have emerged successful from the claim, as they have secured their primary objectives in terms of D3 (i) providing them with the information they sought about those responsible for the posts; (ii) agreeing to remove the posts in question; and/or because D3 has behaved unreasonably. Alternatively, they argue that there should be no order as to costs.
The Claimants have mostly represented themselves throughout the proceedings, save that they have sought the assistance of various counsel at particular points. They instructed Dan Stacey of counsel for the hearing on costs relating to D3 on 12 June 2025. At previous hearings, C1 and C2 have had the assistance of an interpreter, but on this occasion C3 (who understands and speaks English) assisted them. C1 and C2 confirmed they were content with that course. As with previous hearings, C4 joined the hearing remotely. D3 was represented by Mr Callus and Ms Pereira, who had previously acted for D4. I am grateful to all counsel for their assistance.
The legal framework
Under CPR 38.6(1): “Unless the court orders otherwise, a claimant who discontinues is liable for the costs which a defendant against whom the claimant discontinues incurred on or before the date on which notice of discontinuance was served on the defendant”.
In Brookes v HSBC Bank [2011] EWCA Civ 354 at [6], Moore-Bick LJ, with whom Arden LJ and Ward LJ agreed, gave the following guidance on the application of the CPR 38.6 presumption:
“(1) when a claimant discontinues the proceedings, there is a presumption by reason of CPR 38.6 that the defendant should recover his costs; the burden is on the claimant to show a good reason for departing from that position;
(2) the fact that the claimant would or might well have succeeded at trial is not itself a sufficient reason for doing so;
(3) however, if it is plain that the claim would have failed, that is an additional factor in favour of applying the presumption;
(4) the mere fact that the claimant’s decision to discontinue may have been motivated by practical, pragmatic or financial reasons as opposed to a lack of confidence in the merits of the case will not suffice to displace the presumption;
(5) if the claimant is to succeed in displacing the presumption he will usually need to show a change of circumstances to which he has not himself contributed;
(6) however, no change in circumstances is likely to suffice unless it has been brought about by some form of unreasonable conduct on the part of the defendant which in all the circumstances provides a good reason for departing from the rule.”
These principles were approved by the Court of Appeal in Nelson’s Yard Management Co v Eziefula [2013] EWCA Civ 235, [2013] C.P. Rep. 29, Ashany v Eco-Bat Technologies Ltd [2018] EWCA Civ 1066; and more recently by Soole J in BB v Khayyat [2025] EWHC 379 (KB).
In Nelson’s Yard, Beatson LJ (with whom Arden LJ and Ryder J agreed) made the following observations about the process of displacing the CPR 38.6 presumption:
“30. The hurdle to displace the default rule in CPR r.38.6(1) is also a high one. A claimant who discontinues must (see Moore-Bick L.J.’s sixth principle in Brookes v HSBC Bank) generally show some form of unreasonable conduct on the part of the defendant which provides a good reason for departing from the rule. The height of this hurdle can be illustrated by two examples.
31. First, the mere fact that a claimant has got all or almost all he could reasonably hope to achieve from the proceedings has been said not to justify a claimant from relying on the avoidance of a trial which would be solely about liability to recover costs as justifying a departure from the default rule: see Patten L.J. in Messih v MacMillan Williams [2010] EWCA Civ 844 at [28], [30] and [31]. In Brookes v HSBC Bank , after referring to what Patten L.J. stated, Moore-Bick L.J. observed (at [10]) that a claimant who seeks to persuade the court to depart from the default rule must provide cogent reasons and is unlikely to be able to satisfy the court that there is good reason to do so save in unusual circumstances. In Messih’s case, the achievement by the claimant of what he had sought from the proceedings by a settlement with one of a number of defendants did not justify disapplying the rule when he discontinued against other defendants.
32. The second example concerns the position of disputed material. It is clear that once there is to be no trial, it is not the function of the court considering costs to decide whether or not the claim would have succeeded: see Walker Wingsail Systems, Re [2006] 1 W.L.R. 2194 , per Chadwick L.J. at [12], and H.H. Judge Waksman’s second principle in Teasdale v HSBC Bank Plc [2010] EWHC 612 (QB) at [7(2)]. But it is also clear (see Moore-Bick L.J.’s sixth principle in Brookes v HSBC Bank) that it is the function of the court to consider whether the unreasonableness of a defendant’s conduct provides a good reason for departing from the default rule.”
The White Book 2025 at paragraph 38.6.1 sets out a series of cases where the CPR 38.6 presumption has been considered. Mr Stacey contended that these cases illustrate the wide range of circumstances in which the presumption has been displaced. I note, for example, the following: (i) Aegis Group Plc v Inland Revenue [2005] EWHC 1468 (Ch), where the defendant’s costs were reduced to reflect their failure to comply with the judicial review pre action protocol; (ii) RBG Resources Plc (In Liquidation) v Rastogi [2005] EWHC 994 (Ch); [2005] 2 BCLC 592, where the defendant’s unreasonable and unjustified stance in negotiations for settlement was considered a good reason to order that he should be deprived of a proportion of his costs on discontinuance; and (iii) Hewson v Wells and Ors [2020] EWHC 2722 (Ch), where the defendant’s late disclosure of an important deed document, 18 months after the claimant’s initial request, with no explanation, led to displacement of the presumption. However, the 3 month period between the complete deed being provided to the claimant and the notice of discontinuance tipped the balance away from making a costs order in the claimant’s favour.
The factual background
C1 had been a legal academic in China for many years before her retirement in January 2022. By then she was a professor of law at Shenzhen University. C2 is a lawyer practising in a law firm in China. C1 and C2 are the parents of C3. C3 has been in a romantic relationship with C4 since July 2022.
C4 was previously in a relationship with D1. Rather than respecting C4’s decision to reject his marriage proposal and end their relationship, D1 subjected her, C3 and his parents to the torts alleged. D1 attended uninvited at the homes of C1, C2 and C3 in England and C4 in the Ukraine and harassed them. D1 also extensively defamed them on the internet, thereby harassing them further.
The Claimants relied on many hundreds of posts on three websites, mostly dating from November 2022 to March 2023. The websites were: https://www.6park.com, http://wenxuecity.com and https://fishandchips.fans.The posts defamed the Claimants by, for example, alleging that C1 and C2 have committed criminal offences and by casting various aspersions on the characters of C3 and C4. The posts involved the disclosure of personal data about C1, C2 and C3 in the form of Land Registry documentation about the three properties they own in Manchester; and photos of cars believed to belong to C3.
D1’s actions damaged the Claimants’ reputations and had a serious adverse impact on C2’s health such that in October 2022 he had a heart attack.
The Claimants claimed that D2, D3 and D4 respectively were the companies responsible for the three websites.
Further details of the factual background can be found in [2025] EWHC 912 (KB) at [24]-[52].
The nature of D3’s business and its engagement with the Claimants was described in two witness statements provided by Wayne Lin, Chief Executive Officer, Chief Financial Officer and Director of D3 dated 27 November 2024 (“Lin 1”) and 17 January 2025 (“Lin 2”). Lin 1 adopted and agreed with the contents of a witness statement prepared by Atif Nazir, a Legal Executive at D3’s then solicitors, Farleys Solicitors LLP (“Farleys LLP”), dated 27 November 2024.
D3 is registered in the state of California in the United States of America. D3 provides an online forum/platform via http://wenxuecity.com (“the website”), which has approximately 1,000,000 users. The website was established in 1997. It primarily serves Chinese readers living overseas. D3 are not the originators of any posts or comments on the forum, and they do not have any editorial responsibility for content on it. They merely provide the website through which people can post: Lin 1 at [3]-[4] and [7].
The procedural history
The pre-issue stage
On 20 March 2023, having been alerted to the defamatory posts by C1, C4 telephoned D1. Her evidence was that during the telephone call he confirmed that “he published the posts and promised to delete the posts”: see C4’s witness statement dated 17 September 2023 at [23].
On 21 March 2023 at 10.18 am, the Claimants complained to D3 about 14 of the posts/links via email and the feedback section of the website. The Claimants also sought information relating to the publisher of those posts. At 9.47 pm that day, D3 replied confirming that the posts had been deleted: Lin 2, at [14(b)].
On 24 March 2023, 26 March 2023, 3 April 2023 and 11 April 2023, the Claimants sent several further deletion requests to D3, as a result of which D3 deleted certain further posts. On 12 April 2023, the Claimants emailed to thank D3: Lin 2, at [14(b)-(c)].
On 27 April 2023 the Claimants served a notice of complaint for the purposes of s.5 of the Defamation Act 2013 (“the 2013 Act”) and the relevant regulations (the Defamation (Operators of Websites) Regulations 2013). Mr Callus submitted that the court could proceed on the assumption that the notice of complaint was valid and that D3 had not replied to this notice in accordance with the regulations. I did so.
On 5 May 2023, the Claimants sent a pre-action letter to D3 complaining about 14 posts. However, Mr Lin explained that the letter did not include the “URLs” (Uniform Resource Locators or web addresses) necessary for D3 to effect deletions: Lin 2 at [16]. The Claimants again asked for information relating to the publisher of the posts.
On 8 May 2023, D3 asked the Claimants to send the URLs for the posts they thought were defamatory, saying that the file the Claimants had attached could not be downloaded. D3 explained that its privacy policy did not allow it to provide user information without a court order. It nevertheless said that if the Claimants provided the URLs, it would delete the posts. Given the number of duplicated requests for deletions it had received from the Claimants, D3 understood that these 14 posts were the same as those referred to previously by the Claimants which had already been deleted: Lin 2 at [16].
Issue, service and acknowledgement of the claim and the Claimants’ Part 18 application
On 19 July 2023 the Claimants issued their claim. The Particulars of Claim sought orders requiring all the Defendants, including D3, to “delete all posts related to Claimants” and “offer the identity information of the poster”; alternatively to pay substantial damages for the various torts outlined in [1] above.
On 2 August 2023 the Claimants made an application against D3 for an order for disclosure of further information under CPR Part 18 (“the Part 18 application”). The application sought information capable of identifying those who had posted the defamatory material on the website using the names “Overseas Fox Hunter”, “Balala Bar” and “Kolobok”. The Claimants sought, for example, the names, email addresses and postal addresses of the person(s) involved. Part 18 applies to requests for information between parties to litigation. Although advanced under Part 18, this application was, in substance, a Norwich Pharmacal application, as it sought disclosure of the identity of a wrongdoer so that proceedings could be brought against them: see Norwich Pharmacal v Customs and Excise Commissioners [1974] AC 133 at 175.
On 6 September 2023, D3 received a copy of the Particulars of Claim by post. According to Mr Lin’s evidence, it was only at this point that D3 was provided with the URLs required for identifying the posts complained of. All of the 14 URLs complained of in the Particulars of Claim that linked directly to the website had already been deleted in March 2023 in response to Claimants’ initial complaints. Of its own volition, D3 deleted a further 597 comments that had been posted by the users complained of and blocked the users’ IP addresses and user IDs: Lin 2 at [18]-[19].
By an order dated 24 October 2023, Master Stevens held that England and Wales was the most appropriate forum for the litigation. The Master granted the Claimants permission to serve the Claim Form and if required any other documents on the Defendants outside of the jurisdiction, in the United States.
On 15 March 2024 C2 sent a long email to D3 for the attention of Mr Lin personally. C2 explained the background to this litigation. He said that he had “no grudges” against D3 but considered that he and his family had been “innocently cyberbullied” on the website. He said “the poster used your platform to wantonly slander and harass our family. His methods are despicable and outrageous…it is equivalent to digging up my family’s ancestral graves! As a man, as long as I am still alive in this world, how can I let this abuser go [?]”. C2 alluded to the costs of litigation and said “[a]s long as the website provides the identity of the poster in accordance with the court order, we will exempt the website from liability”, but that D3 would need to bear the legal costs. He then provided detailed information about D1, who he described as “the poster”. He said that they had submitted at least 15 emails to D3 but that the company had “only replied to one email and did not respond to the lawsuit”, such that “[o]ut of helplessness, we listed your company as the third defendant in this case”. He reiterated his request that D3 “disclose the identity information of the poster according to the court order” to “help [D3] get out of this case, but also help our family of the victim”.
On 9 April 2024, the claim was served on D3 in the United States.
On 26 April 2024 D3 filed its Acknowledgement of Service.
Events between 14 May 2024 and 11 December 2024, including the Claimants’ s.13 application
On 14 May 2024 D3 made an application disputing jurisdiction pursuant to CPR Part 11.
On 10 June 2024 default judgment was ordered against D1. Directions were given for a disposal hearing in relation to this claim.
On 13 September 2024 Mr Lin emailed C2. He explained that under US law, website operators are not obliged to ensure that users register with their real names. Accordingly, D3 only retains the email addresses, IP addresses and usernames for those who post on its website, not their real names. He said that as a “user generated content” (“UGC”) platform, the website received thousands of complaint letters a day. Due to its operating model and human resource limitations, D3 was unable to respond to each individual complaint. However, D3 had made an exception for the Claimants and deleted the 10 posts that had been mentioned in correspondence (it is not clear which these were). Further, although C2 had not requested it, they had invested a lot of manpower and time in deleting more than 600 related posts. He said that C2 should feel free to propose “any other reasonable solutions” and he would be willing to discuss “whether there are more ways to alleviate your troubles”.
By an order dated 1 October 2024 (amended on 9 October 2024) Master Stevens addressed the Claimants’ Part 18 application. She noted in the recital to the order that D3 had indicated in correspondence that it would not provide the material to the Claimants without a court order; and neither consented to nor opposed any such order being made. Master Stevens ordered that D3 disclose to the Claimants the requested material as soon as reasonably practicable and in any event within 28 days of having received the order.
On 9 October 2024 the Claimants made an application against D3 for an order under s.13 of the 2013 Act, requiring D3 to remove and cease distribution of certain posts (“the s.13 application”). This application referred to 271 posts over and above those that featured in the Particulars of Claim. The posts complained of were nevertheless deleted by D3 and this process was completed on or before 14 November 2024: Lin 2 at [20]-[22].
On 6 November 2024, D3 emailed the Claimants providing them with “the user information you requested” by reference to Master Stevens’ order, saying “We believe this information will help in identifying the individual responsible for the defamatory statements and we can hope this will assist in bringing this matter to a close as soon as possible”. The email continued “please confirm if our compliance is sufficient for both you and the court’s requirements and if upon receipt and verification of this information the claim will be dismissed.”
On 4 December 2024 the Claimants made an application against D3 for an injunction.
On 10 December 2024 D3 made an application against the Claimants for strike out of the claim / summary judgment on it.
The 12 December 2024 hearing and events thereafter
Ahead of the hearing that had been listed for 12 December 2024, the Claimants served a series of documents which appeared to suggest that defamatory statements were still online. However, most came from websites called kantie.org and https://fishandchips.fans/t/topic/5001, neither of which is related to D3. Kantie is a third-party tool that employs “crawl bots” to extract and replicate internet content. It is therefore likely that Kantie had replicated some of the content of D3’s website before the relevant deletions were made: Lin 2 at [25]-[26]. https://fishandchips.fans is a website for which D4 was the domain name registrant: [2025] EWHC 158 (KB) at [12] and [52]-[54].
The 12 December 2024 hearing had been listed to consider the disposal of the claim against D1 and certain other applications. The Claimants and other parties invited the court to consider yet further applications at the hearing.
In [2025] EWHC 158 (KB) at [20] I observed that it was a hallmark of this litigation that the Claimants had made a vast number of applications; corresponded with the court very regularly; and routinely provided the court with voluminous documentation, the relevance of which was not always immediately apparent, and sometimes without permission to do so. It was partly because of their conduct of the litigation in this way that it was necessary to limit the 12 December 2024 hearing to the applications relating to the Claimants and D4: ibid, at [21]. The issues between the Claimants and D1, D2 and D3 were adjourned to be considered at separate hearings.
On 14 December 2024 Mr Nazir on behalf of D3 emailed the Claimants and asked them to set out in a table which posts they alleged were still online, and in respect of each post, the title of the post, the date of the post and the URL. No response to this request was received. Mr Lin’s evidence was that this was because it was not possible for the Claimants to provide such a table as D3 had already deleted all the posts in question: Lin 2 at [27].
On 19 December 2024 the Claimants made an application to add Mr Lin personally to the proceedings as a party under CPR Part 19.
On 25 February 2025, D3 filed a Notice of Change of representatives, confirming Greenberg Traurig LLP had been instructed to act on behalf of D3 in place of Farleys LLP.
By 9 April 2025, the Claimants had already intimated that they intended to discontinue their claim against D3, but did not want to pay D3’s costs. However, on this date they wrote to D3 stating that they had discovered 12 URLs that remained active on D3’s website, which linked to posts published by Overseas Fox Hunter, and which were defamatory of them. The Claimants indicated that they reserved the right to amend their claim against D3 to include one of harassment. They asked for a response by 4 pm on 11 April 2025.
On 15 April 2025, D3’s solicitors informed the Claimants that the comments had been deleted as soon as was practicable, at 8.47 am PST on 10 April 2025. D3 also explained that the 12 posts were in fact published by third parties as “quote comments” of Overseas Fox Hunter’s original posts, which is why they were not caught by D3’s process of removing all posts from the website that were published directly by that account. D3’s solicitors emphasised that the Claimants’ 9 April 2025 letter was the first occasion on which they had drawn these particular posts to D3’s attention, even though they dated back to 2023.
On 28 April 2025 the Claimants made an application for C1 and C2 to be afforded special measures under CPR 1.6 in respect of the future conduct of the litigation involving D3.
The Notice of Discontinuance and events thereafter
On 2 May 2025, the Claimants served their Notice of Discontinuance in respect of their claim against D3.
On 7 May 2025, I gave directions for the determination of the costs issues between the Claimants and D3. These permitted the Claimants to file (i) written submissions, limited to 3 pages, responding to D3’s submissions on costs; and (ii) a response to D3’s schedule of costs, by 4.30 pm on 23 May 2025.
The Claimants served Mr Stacey’s submissions in compliance with (i); and not one but two documents under (ii) (those at pp.70 and 842 of the hearing bundle). However, despite the directions that had been given, and a further email from my clerk confirming that no further documents were required for the hearing, the Claimants also filed a chronology, a case summary, an “issues” document, a list of essential reading, and a fourteenth witness statement from C1 dated 1 June 2025 supported by XW/14, which ran to over 350 pages. XW/14 included a document entitled “poster information disclosed by the third defendant”. Despite their titles, to varying degrees these documents all contained further submissions on costs and did so slightly differently to the way in which Mr Stacey had advanced matters. The Claimants insisted on these documents being included in the bundle for the hearing, to which D3 objected.
I considered it necessary for me to skim read all these documents on a de bene esse basis in preparation for the hearing. I queried the position at the start of the hearing and gave Mr Stacey time to take instructions. Having done so he confirmed that the Claimants only sought to rely on the chronology and XW/14 (although that would also necessitate reliance on the fourteenth witness statement from C1 dated 1 June 2025, which exhibited XW/14). While I fully understand how strongly the Claimants feel about the costs issues, this was, again, unhelpful conduct of the sort described at [45] above, which led to a further waste of court resources and potentially D3’s costs.
The CPR 38.6 presumption: submissions and analysis
The parties’ submissions revolved around the following themes.
(i): D3’s provision of information to the Claimants
Mr Stacey submitted that by their email dated 6 November 2024 D3 had complied with Master Stevens’ order by providing the Claimant with information about the three posters on the website. The Claimants had thereby achieved one of their key objectives in the litigation. In light of this, as well as their success in securing the deletion of the posts (addressed under (ii) below) they should be treated as having succeeded in their claim even if they did not obtain damages from D3. The provision of this information, he argued, amounted to a “change of circumstance” which was a good reason to displace the CPR 38.6 presumption.
As attractively as it was advanced, I cannot accept this submission for the following reasons.
First, although Mr Stacey submitted that the Claimants had succeeded in their objective of obtaining information from D3 by 6 November 2024, the material provided by the Claimants presented a different picture. The document entitled “poster information disclosed by the third defendant” within XW/14, provided on 1 June 2025, asserted that “a significant portion of the data requested”, in the form of posts and IP addresses, was still missing. The Claimants had prepared a table listing 31 posts and colouring those in relation to which they considered D3 had still not provided sufficient information red. This amounted to over half the posts. The Claimants’ chronology also contended that on 6 November 2024 D3 only provided a “fragment” of the total information requested. These documents therefore suggest that the Claimants do not consider that D3 has yet fully complied with the Master’s order and thus that they have not fully met their objective of obtaining information. As noted above, they were advancing a different position through their counsel.
Second, D1 had admitted as far back as 20 March 2023 that he was the publisher of the posts: see [22] above. The Claimants’ Particulars of Claim acknowledged that there were multiple accounts involved in the posts but contended at paragraph 23(3) that D1 was responsible for them all. On 10 June 2024, they obtained default judgment against D1 on that case. Accordingly, as I explained in [2025] EWHC 158 (KB) at [88] and [112], (i) it would no longer be open to D1 to argue that he was not responsible for all the posts (if indeed that was ever his case); rather, the court would make what orders as to remedy were appropriate against D1 on the basis that he was responsible for them all; and (ii) any order aimed at assisting the Claimants in identifying any additional posters of the defamatory material over and above D1 would have limited utility. In those circumstances it was unnecessary for the Claimants to continue to focus on identifying whether any other people were involved in the posting, certainly after the grant of default judgment on 10 June 2024. I also have my doubts as to whether that really was their focus: C2’s 15 March 2024 email to Mr Lin at [32] above appeared to indicate an acceptance that the only person involved was D1, such that it might be that what the Claimants were really hoping to achieve was further confirmation that D1 was behind more posts.
In light of the issues at [59] and [60] above, the Claimants’ position is not particularly “cogent”, as required to displace the CPR 38.6 presumption: see Nelson’s Yard at [31], at [12] above.
Third, the sixth Brookes principle makes clear that even if there has been a change in circumstances, it is not likely to suffice to displace the presumption unless it has been brought about by some form of “unreasonable conduct” on the part of the defendant which in all the circumstances provides a good reason for departing from the rule. Here, D3 was entitled to ask that the Claimants apply for a court order before it disclosed the personal data of its users. This was not unreasonable conduct: rather, it reflected D3 acting as a responsible website operator, following its privacy policies.
Fourth, even if D3 provided all the information the Claimants sought by 6 November 2024, or even by the later date mentioned by the Claimants in some of their documents of 7 February 2025, all this shows is that their Part 18 application had effectively succeeded. That might be relevant to the costs of that application (although, as I have said, this was in substance a Norwich Pharmacal and the costs of such applications are generally met by the applicant: Cartier International AG v British Telecommunications Plc 2018 UKSC 28). However, I do not see how it can be relevant to the costs of the entire claim.
Fifth, even if success in obtaining the information could, properly, be regarded as success on the claim overall, the authorities are clear that the fact that a claimant would or might well have succeeded at trial on their substantive claim is not in itself a sufficient reason to depart from the general rule: see the second Brookes principle and Nelson’s Yard at [31], at [10] and [12] above.
For these reasons, I do not consider that the fact that D3 has provided information to the Claimants to assist in identifying the three posters is a good reason to depart from the general rule set out in CPR 38.6.
(ii): D3’s deletion of the allegedly defamatory posts at the request of the Claimants
Mr Stacey submitted that the Claimants’ success in securing the deletion of the posts also indicated their overall success in the litigation and amounted to a change of circumstance which was a good reason to displace the CPR 38.6 presumption. He pointed to the fact that although extensive deletions were confirmed on 27 November 2024, it was not until 15 April 2025 that the last deletion took place.
I cannot accept this submission for the following reasons.
First, the evidence on this issue was, again, lacking in cogency. In oral submissions, Mr Stacey contended that although Mr Lin’s evidence suggested that extensive deletions were effected shortly after D3 received the Particulars of Claim on 6 September 2023, D3 failed to tell the Claimants they had done this until Mr Lin’s 13 September 2024 email to C2: see [30] and [37] above. On this basis, he suggested that the Claimants were unaware that the deletions had been made in September 2023 and remained “in the dark” for around a year. However, this seemed hard to square with the fact that the Claimants have generally been assiduous in identifying whether any posts about them remain “live”; and with the fact that C2’s 15 March 2024 email to D3 at [32] above did not make any specific requests for posts to be removed.
Second, the Claimants’ position appeared to be that D3 had not been willing to delete posts until the start of the litigation. The procedural chronology set out above does not support this suggestion. Rather, D3 had promptly deleted posts in response to the Claimants’ requests dated 21 March 2023, 24 March 2023, 26 March 2023, 3 April 2023 and 11 April 2023 and had asked for more information in response to the 5 May 2023 pre-action letter: see [23]-[27] above. The tenor of D3’s conduct prior to the litigation, underscored by Mr Lin’s 13 September 2024 email to C2 at [37] above, was that even if the Claimants had not commenced litigation, D3 would have continued to work with them to remove the posts. D3’s failure to respond to the 27 April 2023 notice of complaint was of no real consequence given that it continued, thereafter, to assist the Claimants with respect to identifying the relevant posts and deleting them. D3 has continued to delete posts throughout the litigation, promptly on receiving notice of them. Accordingly, even if the deletions effected during the course of the litigation amounted to a change of circumstances, this was not brought about by any “unreasonable conduct” by D3 for the purposes of the sixth Brookes principle.
Third, as with the provision of information under (i) above, all that the deletions made during the course of the litigation show is that the Claimants might, ultimately, have obtained a s.13 order once judgment had been entered on the defamation claim. Again, this success might be relevant to the costs of the s.13 application, but is of limited or no relevance to the costs of the entire claim; and again even likely success on the claim is not in itself a sufficient reason depart from the general rule in CPR 38.6: see [63] and [64] above.
In any event, there were real difficulties with the Claimants’ s.13 application. The power to make an order under s.13 applies where a court has given judgment for a claimant in an action for defamation. Under s.13(1)(a), the court may order an operator of a website on which “the” defamatory statement is posted to remove the statement. It follows that a s.13 order can only be made in respect of the statements that have featured in the action for defamation. In this case, Mr Lin’s evidence makes clear that all of the 14 URLs complained of in the Particulars of Claim that linked directly to the website had been deleted in March 2023 in response to the Claimants’ initial complaints. On the Claimants’ own case, they had been informed of all the deletions by 13 September 2024: see [37] and [68] above. Accordingly, there was no need to make a s.13 application in respect of the posts that featured in the Particulars of Claim. The s.13 application that the Claimants then made, on 9 October 2024, referred to 271 posts over and above those that featured in the Particulars of Claim: see [39] above. As these did not feature in the claim, there would have been no power to make a s.13 order in respect of them. The posts complained of were nevertheless deleted by D3 on or before 14 November 2024 and the Claimants were informed of this through Mr Lin on or around 17 January 2025, such that there was no basis at all for maintaining the s.13 application after that date.
For these reasons, I do not consider that the success the Claimants have achieved since the claim was issued in achieving deletions of further posts is a good reason to depart from the general rule set out in CPR 38.6.
(iii): The merits of the Claimants’ claim against D3
As noted at [10] above, the third Brookes principle dictates that if it is plain the claim would have failed, that is an additional factor in favour of applying the CPR 38.6 presumption. It is important to note that the relevant question is whether the claim would have failed, not whether any discrete applications within the claim would have failed. In my judgment the answer to that question is that the Claimants’ claim against D3 would have failed, for the following reasons.
First, D3 would almost certainly have succeeded in its application for an order that the court did not have jurisdiction to hear the Claimants’ claim against it by virtue of s.10 of the 2013 Act, as D4 did. Under s.10 the court does not have jurisdiction to hear and determine a claim against a person such as D3 who is not the author, editor or publisher of the statement complained of “unless the court is satisfied that it is not reasonably practicable for an action to be brought against the author, editor or publisher”. Here, it was not only reasonably practicable for the Claimants to sue D1, but they had done so and obtained judgment against him. These provisions were explained in my judgment in respect of D4 and were part of the reason why their jurisdiction challenge succeeded: see [2025] EWHC 158 (KB) at [82]-[90]. They apply with equal force to D3.
Second, D3 would be able to avail itself of the defence in s.5(2) of the 2013 Act. D3 was an operator of a website for the purposes of s.5. Under s.5(2), it is a defence for an operator to show that it did not post the statement on the website. That defence was prima facie available to D3 as it was never suggested that D3 was responsible for the original posting. The Claimants contended that they would be able to rely on s.5(3)(b) and (c) to defeat the defence as they had served D3 with a relevant notice of complaint in relation to the posts and D3 had failed to respond to the notice as required. However, ss.5(3)(b) and (c) were never going to be determinative in this case. This is because they are only relevant if the claimant can also show, under s.5(3)(a), that it was not possible for the claimant to identify the person who posted the statement. That did not apply here, as the Claimants had been able to identify the poster, namely D1, and had brought proceedings against him. The effect of ss.5(4) and s.5(3)(a) would therefore have been to prevent the Claimants defeating D3’s s.5(2) defence.
Mr Stacey contended that D3’s concession that it ought to provide information about those responsible for the posts and delete posts sat very uneasily with its position as to the merits of its defence. With respect, this submission fails to appreciate the nuances of ss.10 and 5, which effectively meant that the ability of the Claimants to sue D1 had serious implications for bringing further claims against D3 (as opposed to a s.13 application), irrespective of D3’s decisions with respect to deletions and information.
Accordingly, the third Brookes principle is made out and militates in favour of applying the CPR 38.6 presumption.
(iv): Alleged unreasonable conduct by D3
The Claimants contended that D3 had engaged in unreasonable conduct in a range of ways.
First, Mr Stacey submitted that D3 had failed, generally, to respond to their requests in relation to information and deletion prior to and during the proceedings. More specifically, he alleged that D3 had failed to comply with their obligations with respect to the provision of information until late November 2024 when they were ordered to provide information by Master Stevens; and had failed to comply with the requirements of s.5 of the 2013 Act. I have rejected this characterisation of D3’s conduct as unreasonable for the reasons given at [62] and [69] above.
Second, he argued that D3 “appeared to have acted by taking all possible routes to derail the claim”. On 21 November 2023, D3 had filed an application to vary the order of 24 October 2023 permitting the Claimants to serve out of the jurisdiction on D3. It had not pursued this application. Similarly, it had not pursued its 14 May 2024 application under CPR 11 in respect of jurisdiction or its 10 December 2024 application for a strike out/summary judgment.
I cannot accept this analysis. D3’s 21 November 2023 application had been superseded by service successfully taking place on 9 April 2024 and D3 filing its Acknowledgement of Service on 26 April 2024. The jurisdiction and strike out applications were considered at the 12 December 2024 hearing but lack of court time prevented them being determined. In accordance with my various case management directions, they would have been listed for hearing but for the Claimants’ discontinuance. There was no failure to progress these applications by D3.
Third, the Claimants argued that D3 had unreasonably failed to engage with their reasonable offers to settle matters.
Again, I disagree. On 12 December 2024, D3 wrote to the Claimants proposing to settle the issues between the parties by having a Zoom meeting to go through each of the posts complained of to reassure the Claimants that they had been deleted. C2 responded the next day stating that they were open to settlement provided that D3 pay the Claimants £400,000 in compensation and that each party bear its own costs. There were further attempts to resolve matters in late January 2025, but in early February 2025, the Claimants put this process on hold, pending the outcome of the disposal hearing in respect of D1 listed for 27 February 2025. The settlement correspondence on 7 March 2025 and thereafter shows nothing more than reasonable conduct by D3, including (i) responding to the various offers made by the Claimants; (ii) on 15 April 2025, making a without prejudice save as to costs counter-offer, which provided that the Claimants would only have to pay 80% of D3’s costs if they filed and served a Notice of Discontinuance by 22 April 2025 to avoid incurring any further costs; and (iii) when agreement could not be reached, maintaining its reliance with respect to its costs on the presumption in CPR 38.6.
This is not the first time the Claimants have made assertions about the conduct of D3 or their representatives which have been found to be unsubstantiated. In their 28 April 2025 application for special measures under CPR 1.6, C1 and C2 alleged that D3’s legal representatives had bullied them. In my 7 May 2025 order on their application, I made clear that the inter partes correspondence did not support these allegations.
I therefore accept Mr Callus’ overarching submission that D3 has not acted unreasonably at all, in light of the scale of litigation brought. On the contrary, D3 has been highly accommodating to the Claimants, both before and during these proceedings.
Accordingly, the Claimants cannot pray in aid any unreasonable conduct by D3 for the purposes of the sixth Brookes principle or more generally in support of their position.
Overall conclusion with respect of the CPR 38.6 presumption
For all these reasons, the Claimants have not shown a good reason for displacing the presumption in CPR 38.6. Accordingly, the Claimants, as parties who have discontinued their claims, are liable for D3’s costs incurred on or before the date on which the Notice of Discontinuance was served on them, namely 2 May 2025. It follows that I do not consider it appropriate to accede to the Claimants’ request that I order D3 to pay the Claimants’ costs, or make no order for costs.
Summary assessment
Mr Callus invited me to summarily assess D3’s costs of the claim on the standard basis, ideally on the papers, on the grounds of expediency and given the Claimants’ conduct of the litigation to date, as described at [45] above.
D3 served the following documents reflecting D3’s total costs of the claim:
A costs schedule dated 9 December 2024 reflecting Farleys LLP’s costs for the 12 December 2024 hearing: £28,580 plus £5,716 VAT;
A costs schedule dated 10 December 2024 reflecting Farleys LLP’s costs for responding to the Claimants’ 4 December 2024 application for an injunction: £4,810 plus £962 VAT;
A without prejudice statement of costs dated 3 April 2025 reflecting Farleys LLP’s “total costs from 12.12.24 to the [N]otice of Change”: £23,423 plus £4,624 VAT;
A costs schedule reflecting US lawyers’ costs incurred before the Notice of Change, addressing the jurisdiction issues: US$21,501.60; and
A costs schedule dated 14 May 2025 reflecting Greenberg Traurig LLP’s work after the Notice of Change: £64,530.
D3 conceded that the change of solicitors would have led to some duplication of work, albeit that this was minimised by D3 choosing solicitors and counsel already familiar with this case from having acted for D4. Accordingly, Mr Callus proposed a modest deduction from the total costs incurred, to reflect the first two items on Greenberg Traurig LLP’s schedule where the “handover” work was recorded. On that basis D3 sought an order that the Claimants pay D3’s costs, summarily assessed on the standard basis in the sums of £116,668 (plus £11,302 VAT) and US$21,501.60 within 14 days.
The Claimants opposed the summary assessment of the costs on the grounds of the level of costs claimed, which they contended were exceedingly inflated, unreasonable and disproportionate.
The Guide to the Summary Assessment of Costs (2021 Edition) makes clear at paragraph 2 that the court should consider conducting a summary assessment whenever it makes an order for costs which does not provide only for fixed costs. Further, the “general rule” is that the court should carry out a summary assessment of the costs at the conclusion of “any…hearing [other than a trial that has been dealt with on the fast track] which has lasted not more than one day”. In those circumstances the order will deal with the costs of the application or matter to which the hearing related and if the hearing disposes of the claim; and may deal with the costs of the claim.
In my judgment summary assessment of D3’s costs of the claim is not appropriate for the following reasons.
First, the “general rule” referred to at [92] above is not engaged, because the claim against D3 has involved two court hearings: one on 12 December 2024 and one on 12 June 2025. It could be said that the total hearing time across both those hearings was “not more than one day” but that reflects a case management decision made on 12 December 2024, resulting in D3’s counsel leaving the hearing at around 12 pm, against a background of various applications involving D3 being listed for the full day hearing.
Second, assessing D3’s costs of the claim would be far from straightforward. There have been a number of applications made by both parties in the litigation. D3 relies on five costs schedules involving three law firms, two in the UK and one in the US.
The Claimants’ two documents responding to the costs schedules make a large number of points, including the following: work claimed has not in fact been done at all; fee earners have not been properly identified; a Notice of Acting was not properly filed by Greenberg Traurig LLP; the retainer document between D3 and that firm should be disclosed; there was a period of time when Mr Lin had told them he was acting for himself, without a solicitor, which may not have been factored into the costs schedules; insufficient detail has been given in relation to some of the items claimed; many items of work claimed had not been assigned to the appropriate level of fee earner; work done has been duplicative or unreasonable; the hourly rates claimed are too high; the use of two counsel was not justified; the US lawyers referred to were not on the court record; their original invoices should be disclosed; and VAT is not payable on the US lawyers’ fees.
These are all the kind of arguments that would be made during a detailed assessment process. However, the Claimants’ objections are not so specific that they could be treated as equivalent to Points of Dispute that comply with PD 47, paragraph 8.2(b) as considered in Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178. Although I do not criticise them for it, D3 has not sought to reply to any of the Claimants’ objections.
Accordingly, to assess D3’s costs fairly would inevitably involve directions for the provision of further written documentation from D3 and, in all probability, a further hearing. This renders summary assessment unwieldy, inappropriate and contrary to the overriding objective.
Conclusion in respect of CPR 38.6
For the reasons given at [56]-[98] above, the general rule in CPR 38.6 applies and the Claimants shall pay D3’s costs of these proceedings incurred on or before the date on which the Notice of Discontinuance was served, namely 2 May 2025. Those costs shall be assessed on the standard basis, to be the subject of detailed assessment if they cannot be agreed.
Consequential matters
The costs of and occasioned by the 12 June 2025 hearing
The Claimants will also be ordered to pay D3’s costs of and occasioned by the 12 June 2025 hearing. The draft order provided by Mr Stacey suggested that he agreed with this approach. For the avoidance of doubt, it is appropriate because D3 has emerged as the successful party in relation to the costs issues, such that the general rule in CPR 44.2(2)(a) militates in favour of the Claimants paying their costs. Further, the hearing could have been avoided if the Claimants had accepted D3’s 15 April 2025 offer that would have limited their costs liability: see [83(ii)] above. These costs shall be assessed on the standard basis, to be the subject of detailed assessment if they cannot be agreed.
A payment on account of costs and time for making any such payment
CPR 44.2(8) provides that “Where the court orders a party to pay costs subject to detailed assessment, it will order that party to pay a reasonable sum on account of costs, unless there is good reason not to do so”.
CPR 44.7 provides in material part that a party must comply with an order for the payment of costs within 14 days of the date of the judgment or order if it states the amount of those costs, unless the court specifies otherwise.
The Claimants contended that there were a series of good reasons not to order a payment on account of costs in this case, namely (i) the fact that they were drawn into this litigation by serious tortious conduct, which has had very serious consequences for the mental and physical health of C1 and C2; (ii) the significant financial difficulties the protracted nature of the litigation has caused them, in particular because of the fact they have had to meet significant costs since December 2024, including £58,185.50 to be paid to D4 (see [3] above); (iii) the delay in enforcing the judgment in [2025] EWHC 912 (KB) against D1 in the United States; and (iv) the additional time they will need to raise further funds.
In my judgment these are good reasons to allow additional time for a payment on account to be made, but not sufficiently good reasons to refuse to order a payment on account at all. As the White Book 2025 explains at paragraph 44.2.12, the purpose of a payment on account is to enable the receiving party to recover part of the expenditure on costs before the possibly protracted process of carrying out detailed assessment: see Days Healthcare UK Ltd v Pihsiang Machinery Manufacturing Co Ltd [2006] EWHC 1444 (QB); [2006] 4 All ER 233 at [4], per Langley J. Here, D3 rightly contended that there is a reason to be concerned that the detailed assessment process in this case will be particularly protracted given the Claimants’ conduct of the litigation to date: see [45] and [55] above. This militates in favour of maintaining the presumption in favour of ordering a payment on account.
As to the amount of any payment on account, D3 accepted that the US lawyers’ fees and the VAT element sought were particularly contentious as far as the Claimants were concerned and so excluded those sums from consideration. D3 posited that a figure consisting of 60% of the remaining costs up to 2 May 2025 and 60% of its costs of the 12 June 2025 hearing was appropriate, bearing in mind that the costs were unbudgeted. The Claimants proposed much lower figures, namely 10% of D3’s total costs.
What is a reasonable figure for a payment on account of costs will depend on the circumstances and will often be one that is “an estimate of the likely level of recovery subject…to an appropriate margin to allow for error in the estimation”. The figure can be calculated by “taking the lowest figure in a likely range or making a deduction from a single estimated figure or perhaps from the lowest figure in the range if the range itself is not very broad”: Excalibur Ventures LLC v Texas Keystone Inc [2015] EWHC 566 (Comm) at [23].
In my judgment D3’s assessment of what is a reasonable figure for a payment on account in this case is sound and satisfies the approach set out in Excalibur Ventures LLC. D3 has excluded those elements that are likely to lead to the most extensive arguments on detailed assessment, and applied a 40% reduction to the remaining costs which provides adequate scope for reductions to their claimed costs to be made on general principles (given that they were unbudgeted) and/or because some or all the Claimants’ arguments that have been intimated already (see [96] above) succeed. I also bear in mind that payments on account in the region of 90% of costs claimed are often ordered: see, for example, Elphicke v Times Media Ltd [2025] EWHC 1554 (KB) at [46].
I therefore order the Claimants to make payments on account of costs to D3 of (i) £72,805.80, to reflect 60% of D3’s costs up to 2 May 2025 (excluding the US lawyers’ fees and the VAT element); and (ii) and £19,776, to reflect 60% of D3’s costs relating to the 12 June 2025 hearing.
In light of the factors set out at [103] above, I am content to give the Claimants until 4.30 pm on 29 September 2025 to make the payments on account, as they requested.
Overall conclusion
For all these reasons, I order that the Claimants pay D3’s costs of these proceedings incurred on or before 2 May 2025 and D3’s costs of and occasioned by the 12 June 2025 hearing, on the standard basis, to be the subject of detailed assessment if they cannot be agreed. The Claimants must make payments on account of costs of (i) £72,805.80 and £19,776 to D3 by 4.30 pm on 29 September 2025.