ABC v Google LLC

Relief from sanctions is unavailable where the application is, in substance, a collateral attack on the order imposing the sanction. The starting point is that the sanction was properly imposed and complies with the overriding objective, unless the order is separately varied or revoked.

In assessing relief, the court must consider the seriousness and significance of the breach, including the underlying breach which led to an unless order, the reason for the default, and all the circumstances. Compliance with an order requiring a claimant to identify himself is fundamental to a fair trial. Persistent refusal to comply, coupled with repeated misconceived applications, may justify enforcement of the sanction and certification that the application is totally without merit.

The claimant brought proceedings anonymously against Google LLC, alleging libel, malicious falsehood, breaches of data protection law and related matters. He had permission to issue proceedings using the cypher ABC, but an order required him to serve the claim form showing his full name and address to the defendant.

After repeated failures to comply, an unless order provided that the claim would be struck out. The claim was automatically struck out when the claimant failed to comply. The claimant then applied for relief from sanctions, sought to challenge the earlier anonymity and unless orders, and pursued other consequential relief.

The central issues were whether the application was a genuine application for relief from sanctions, whether relief should be granted applying the criteria in Denton v TH White Ltd, and whether the application should be certified as totally without merit.

1. The application was dismissed and certified as totally without merit. The claim remained struck out. The claimant did not attend the hearing, although he knew of it and had provided written submissions.
2. A genuine application for relief from sanctions must start from the assumption that the sanction was properly imposed and complies with the overriding objective. Under Mitchell v News Group Newspapers, a party cannot use relief from sanctions to complain that the original order should not have been made where no proper application to vary or revoke that order has been made.
3. The substance of the application was not relief from sanctions. It sought to set aside or circumvent the orders requiring disclosure of the claimant’s identity and to reargue matters already rejected by other judges. It was therefore an improper collateral attack and the application failed on that basis.
4. Even if treated as a genuine application, relief would be refused. Applying Denton v TH White Ltd, the breaches were serious and significant. The court had to consider the underlying breach which led to the unless order, as explained in British Gas Trading Ltd v Oak Cash & Carry Ltd. The disclosure requirement was fundamental to the proper conduct of the proceedings, which had not progressed because the defendant and the court did not know the claimant’s identity.
5. The claimant gave no good reason for the default. The importance of obeying court orders and enforcing sanctions where continued disobedience would prevent a fair trial was reinforced by Global Torch Ltd v Apex Global Management Ltd (No.2). Basic common-law fair-trial requirements required the defendant to know who was suing it; Article 6 of the European Convention on Human Rights pointed to the same conclusion.
6. The claimant’s conduct had wasted substantial judicial and public resources and caused significant costs. All the circumstances therefore militated against relief. The claim could not proceed without compliance with the earlier orders, and remained struck out.

This was a first-instance decision, but the judgment recorded the following procedural steps:

• High Court: Master Yoxall permitted anonymous proceedings but required service of the claimant’s full name and address.
• High Court: Nicklin J made an unless order requiring compliance, failing which the claim would be struck out.
• High Court: McGowan J dismissed an application challenging the earlier orders and certified it as totally without merit.
• Court of Appeal: Floyd LJ refused permission to appeal against Nicklin J’s order, observing that the appeal had no real prospect of success and no compelling reason for a hearing.
• High Court: The present court dismissed the application for relief and confirmed that the claim remained struck out.