Full and frank disclosure needed for order for service out

I haven't exactly been waiting for a case on service out , but suddenly two have come along together in the manner of no 253 London buses (substitute your own favourite route number if you wish ). In Easy Group v Easy Fly [2020 ] EWHC 40 (Ch) Nugee J set aside such an order in a passing off, trade mark infringement and unlawful means conspiracy (and, you might add, kitchen sink) claim.

Unlike my previous subject, Wheat v Google (in which judgment was given the following day), there were serious issues to be tried - that wasn't the problem. The issues included where the defendant's website was targeted, whether using a trade mark in a press release made a link between the mark and the services, and whether flying an aeroplane with the trade mark on the side was an infringement.

The problem was that the claimant had failed to tell the judge everything when making the application. Its case was based on the premise that the defendant, a domestic Colombian airline,
was offering its sences in the UK and the EU. It wasn't. The court declined to treat the claim form as valid. The claimants can start again, but will only be able to claim damages for the six years before
the new claim .

Refusal to allow service out upheld

A Chancery Division judge has dismissed an appeal against a Master's refusal to give leave to serve Google outside the jurisdiction . The point arose in an action for copyright infringement, Wheat v Google LLC [2020] EWHC 27 (Ch) (15 January 2020).

The substantive claim involved hotlinking, or inline linking. The hotlinks appear in Google search results, and the claimant argued that Google enabled users to access content on his website via other hotlinking (or, more descriptively and I think more commonly, aggregating) sites - thus depriving the claimant's site of visitors and of advertising potential. Mr Wheat's website, at www.theirearth.com, was devoted to ecological and sustainability issues and contained original articles and photographs created by him. (It went offline in 2018.) He became understandably miffed when aggregator sites availed themselves of his content to attract visitors to their advertising-laden sites.

On an application to serve a foreign defendant outside the jurisdiction, the claimant must satisfy three
requirements (Seaconsar Far East Ltd. Bank Markazi Jomhouri Islami Iran [1994 ] 1 AC 438, 453-457, endorsed by the Privy Council in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel [2011] UKPC 7, [2012] 1 WLR 1884. There must be a serious issue to be the on the merits; there must be a good arguable case that the claim falls within one or more classes of case where permission may be given to serve out ; and the claimant must satisfy the court that in all the circumstances the forum in which proceedings have been commenced is appropriate. The main issue, the judge (HHJ Keyser) decided, was whether there was a serious issue to be tried on the merits: substantive copyright law therefore had to be considered .

According to the case law , the claimant would have to show that Google had communicated his copynight works either to a new public or by a different technical means from that authorised by the claimant. The second possibility could be immediately knocked on the head: Case C-466/12, Svensson, EU:C:2014:76 makes clear that the whole of the Internet is a single technical means. But Svensson also tells us that because the publie to which the communication was made was within the class of potential visitors to the claimant's website , the first possibility was excluded too . The claimant argued that his initial consent to communication was subject to an implicit restriction was not supported by evidence. The Master had been correct in his interpretation and application of the case law. Google's acts of caching and indexing amounted to communication neither to a new public nor by a new technical means, and were not unauthorised communications to the public within the meaning of s.20.

Such is the result of the way the technical process works, and of the present state of the law. Surely copyright law should deal with the economic reality of the situation, though, and prevent parasites (oh, I hadn't intended that pun but it works rather well) from taking a free ride on someone else's original work. Perhaps Mr Wheat's mistake was to make his website freely accessible - but the whole ethos of what he was doing clearly required him to do so. The Internet is perhaps becoming no place for anyone who is not out to make as much money as possible, regardless of whose efforts that is based on. Or so it seems to me.