Hegglin v Person(s) Unknown & Google Inc

Costs applications should be determined proportionately and by reference to the actual success achieved. A costs cap may be inappropriate where proceedings have reached a stage at which substantial expenditure has already been incurred and detailed assessment is likely. Specific disclosure requests must be sensible and proportionate, having regard to the issues, the volume of material and the proximity of trial. Where an application succeeds in part, the costs award should reflect both the successful elements and any unnecessary or over-optimistic aspects. The court may also restrict recovery of costs incurred in complying with relief that was not actually claimed but was granted to address a party’s own procedural fault.

The claimant and Google Inc made applications concerning costs protection, costs management, Part 18 requests and disclosure in proceedings concerning the claimant’s substantive claim. The claimant’s costs application sought a costs cap or costs management order. His separate Part 18 and disclosure application was withdrawn after Google clarified the number of searches conducted through google.com in the United Kingdom. Google applied for answers to Part 18 requests and further disclosure.

The judgment determined the costs consequences of those three applications, including the extent of each party’s success and the appropriate summary assessment.

1. Claimant’s costs application. The application for a costs cap was refused. The stage reached in the proceedings, the expenditure already incurred and the likelihood that detailed assessment would be required made a costs-capping order inappropriate. The claimant nevertheless obtained significant future costs protection because three items in Google’s budget were reduced, and the court accepted his principal complaint that Google’s costs were disproportionate. The claimant was awarded 75% of his costs, with a 25% reduction reflecting the optimistic costs-cap application and the additional costs it caused.
2. Claimant’s Part 18 and disclosure application. The application obtained clarification and an admission that removed an issue from the trial. The claimant was therefore, in principle, entitled to its costs. The proposed disclosure order was nevertheless too wide and too late. Parties should frame specific disclosure requests sensibly and proportionately, particularly where the material could not be processed into useful evidence before a short imminent trial. Google was ordered to pay 75% of the claimant’s costs.
3. Google’s application. The Part 18 request failed entirely. The disclosure application also failed, save that the court ordered an amended disclosure statement addressing an inconsistency concerning deleted emails caused by the claimant. The claimant received 75% of his costs of the application, but could not recover the costs of complying with that amended-statement order if he obtained costs at trial.
4. Summary assessment. The court assessed the allowable costs of the three applications together at £30,000. After applying the 25% discount, Google was ordered to pay the claimant £22,500.