Wheat v Google LLC & Anor

Permission to appeal an order concerning service out of the jurisdiction requires only reasonable grounds for success. The court must take an appropriately broadbrush view and avoid a mini-trial. The underlying service-out test requires a serious issue to be tried, a good arguable case within a CPR gateway, and England and Wales to be clearly or distinctly the proper forum. A copyright targeting analysis may be sufficiently arguable where cached search results are directed at users in England and Wales. That analysis may be materially affected by a foreign hosting contract, an exclusive jurisdiction clause and questions of contractual consent.

The claimant operated a website containing images in which he claimed copyright. He sought to pursue claims against Google concerning the caching and linking of those images, and claims against Monaco Telecom and Google concerning the alleged cloning and indexing of the website.

Chief Master Marsh refused permission to serve out of the jurisdiction, or set aside service already effected, in decisions reported at [2017] EWHC 3150 (Ch) and [2018] EWHC 550 (Ch). The claimant applied for permission to appeal. The central issues were whether the proposed appeals had reasonable prospects of success and whether the claims satisfied the requirements for service out.

1. Applicable approach. The applications concerned permission to appeal orders refusing service out of the jurisdiction. The claimant needed to show reasonable grounds for success on appeal. The court therefore adopted an appropriately broadbrush approach and did not conduct a trial within a trial.
2. Service-out requirements. The claimant had to establish: (i) a serious issue to be tried on the merits; (ii) a good arguable case that the claim fell within a gateway in CPR PD 6B §3.1; and (iii) that England and Wales was clearly and distinctly the proper forum.
3. Google caching claims. The claimant had a good arguable case that cached images displayed through searches directed at users in the United Kingdom constituted communication to the public under section 20 of the Copyright, Designs and Patents Act 1988. The targeting analysis in Omnibill (Pty) Ltd v Egpsxxx Ltd [2014] EWHC 3762 (IPEC) gave the claim reasonable prospects, notwithstanding the judge’s reservations about its precise translatability to cached images. The claims arguably fell within both limbs of gateway 9, and England and Wales was arguably the proper forum.
4. Monaco Telecom claims. The contract between the claimant and Monaco Telecom raised serious issues concerning consent, applicable law and the interaction between contractual and tortious claims. The exclusive jurisdiction clause referring disputes to Monaco was a strong indicator that Monaco was the proper forum. The pleading did not address these difficulties sufficiently. Permission to appeal was therefore refused.
5. Related Google claims. The claims concerning Google’s continued indexing of the allegedly cloned website depended centrally on the question of consent and were joined at the hip with the Monaco Telecom claims. They likewise did not have a reasonably arguable prospect of obtaining a different outcome on appeal.

• High Court (Chancery Division): Permission to appeal was granted in relation to the first grouping of claims against Google. Permission was refused in relation to the claims against Monaco Telecom and the connected claims against Google.
• Chief Master Marsh: Service out was refused, or set aside, pursuant to judgments [2017] EWHC 3150 (Ch) and [2018] EWHC 550 (Ch).