Gela Mikadze & Anor v Dechert LLP & Ors

The court considered an application for permission to serve the proceedings out of the jurisdiction against two United States based defendants (the Del Rosso Parties) in claims arising from an alleged unlawful hacking campaign. The established three‑limb test for service out (a serious issue to be tried; a good arguable case for a PD 6B gateway; and forum conveniens) was applied. The judge concluded there was a serious issue to be tried on the pleadings, and that the claim satisfied Gateway 3 in paragraph 3.1 of Practice Direction 6B because the claims against the various defendants all arose from the same investigation and were closely bound up. The court rejected reliance on late disclosure (the 25th witness statement in the Azima proceedings) and confined the claimant to their Particulars of Claim and supporting witness statement. The judge exercised his discretion in favour of granting permission for service out because England was the appropriate forum and the Del Rosso Parties had already submitted to the jurisdiction in related proceedings and for certain disclosure applications.

This is a first instance judgment on an application for permission to serve out proceedings brought by two claimants who allege that their confidential, privileged and private information (described in the pleadings as "Relevant Property") was obtained in an unlawful hacking campaign carried out on behalf of Ras Al Khaimah. The factual backdrop involved three electronic Devices that came into the possession of the claimants' solicitors, including a laptop which was the property of the Del Rosso Parties and which has since been delivered up to the Del Rosso Parties' solicitors on undertakings.

The proceedings sought, and the application now considered sought permission to serve the Del Rosso Parties out of the jurisdiction. The substantive pleaded causes of action are for breach of confidence, misuse of private information and unlawful processing of personal data under the GDPR and the Data Protection Act 2018, with primary relief directed at identifying, protecting and returning the Relevant Property and permitting a forensic examination of the Devices. No damages claim is presently pursued in these proceedings.

The issues framed and decided were:

• whether the claim disclosed a serious issue to be tried (the summary judgment test);
• whether there was a good arguable case for a jurisdictional gateway in PD 6B para.3.1 (the claimant relied principally on Gateway 3, and also on Gateways 9, 11 and 21); and
• whether, in all the circumstances, England was the appropriate forum and the court should exercise its discretion to permit service out.

The court held:

• the claimant must be limited to the Particulars of Claim and the claimant's supporting witness statement for the purposes of the service out application; late material produced in the related Azima proceedings could not be relied on for this application;
• the Particulars of Claim, taken at face value, pleaded legitimate inferences from a clandestine hacking campaign and therefore disclosed a serious issue to be tried;
• Gateway 3 was satisfied on a good arguable case because the claims against the various defendants arose from the same investigation and the Del Rosso Parties would have been proper parties had they been within the jurisdiction; and
• given that England is the forum conveniens and that the Del Rosso Parties had already submitted to the jurisdiction in related proceedings and for disclosure applications, the court exercised its discretion to permit service out.

The judge noted subsidiary points about the difficulties of establishing Gateways 9, 11 and 21 on the available material (including the uncertainty whether confidential information can be treated as "property" for Gateway 11), and remarked on the practical posture that some claims are presently stayed pending access to PIN‑locked devices but that those stays were temporary and did not prevent Gateway 3 being made out.

Permission to serve the Del Rosso Parties out of the jurisdiction was granted. The judge held that the claim disclosed a serious issue to be tried and that there was a good arguable case that the claim fell within Gateway 3 of Practice Direction 6B because the claims against the defendants were closely bound up in the same investigative undertaking. England was the appropriate forum and, in the exercise of discretion and in light of the Del Rosso Parties' submissions to the jurisdiction in related proceedings and for disclosure applications, the court ordered service out.