A battle between a Hong Kong-based businessman and internet search giant Google is set to cost some £2.36 million by the time it reaches the end of a five-day trial set for later this month, according to figures given to a High Court judge.
The spending was being run up in a battle in which banker Daniel Hegglin is seeking to use sections 10 and 14 of the Data Protection Act 1998, covering the right to prevent data processing likely to cause damage and distress, and rectification, blocking, erasure and destruction, to make Google remove material about him placed on the internet by an anonymous individual he says is subjecting him to a campaign of abuse and vilification.
The costs issue arose as Mr Justice Edis was asked to impose a costs cap and deal with other applications in advance of a five-day trial scheduled to start on November 24.
The judge said it was common ground that the allegations of serious criminal behaviour the anonymous internet user was making against Mr Hegglin were untrue, and went on:
“This is not, therefore, a case where the second defendant (Google) is being asked to remove old but accurate reports of some behaviour which the claimant finds embarrassing.
“The second defendant, as everyone knows, operates the most widely used search engine in the world and searches made on the claimant’s name produce, prominently, results which lead to websites where the lies about which he complains are available to be read.”
The judge said that on the face of it there seemed to be “little scope for factual disagreement” between Mr Hegglin and Google. But he went on:
“It is therefore surprising that the second defendant expects its costs to be in the region of £1.68 million by the end of the trial, which sum will have been spent in only five months. This is approximately £1 million more than the claimant expects to incur over the same period. There is scope for argument about what the law of England requires the second defendant to do. The case is not simple, which is why five days have been allowed for its trial, but it is not factually complex. It is certainly important because of the central place in modern society of the internet, and the necessity for search engines in order to maximise its use. There are many people who publish lies designed to damage others on the Web and cases of this kind may be expected to multiply.”
Mr Justice Edis said costs budgets were exchanged by agreement on October 27.
Mr Hegglin’s total budget was £604,405 – costs of £283,395 incurred by the date, with an estimated £321,010 to follow.
Google’s budget totalled £1,681,310.41 – with £910,339.43 spent by October 27, with another £770,970.98 estimated to be spent by the end of the trial.
The figures Google provided were “surprising”, said the judge, who later commented that he had read them with “astonishment”. He went on:
“This is a five-month period and a factually simple (although legally complex) case. It seems to me that the difference between the two budgets raises a concern about the proportionality of the second defendant’s overall figure and that that figure itself, viewed in isolation, also suggests that it is not proportionate to the true nature of the dispute.”
Google might have spent money in a way which meant that if the claimant were to face a costs order, significant parts of its costs should be disallowed, the judge went on.
In its defence Google had denied that www.google.com was widely used by individuals in the UK, said the judge, adding that it was now clear that the pleading would have been more accurate if the word “admitted” was used instead of “denied”.
Google had also now made it clear that there were no technical difficulties in giving Mr Hegglin the relief he sought – which was “at variance with its pleaded case”, and with the way the case was advanced at an earlier stage, said the judge, adding: “The fact is that the remedy sought by the Claimant is not impractical. Again this appears to me to be an important issue on the pleadings and one on which the second defendant has now, by concession, lost.”
The defence was also an extremely long document which put in issue matters on which Google had little chance of success, and did not make its true case clear.
Mr Justice Edis went on:
“It appears to me therefore that the detailed assessment of the costs incurred to date (if ever there is one) will have to be done with a careful scrutiny of the costs incurred by the second defendant to date. One relevant factor in deciding whether or not to order a costs cap is the efficacy of detailed assessment in controlling disproportionate expenditure on costs.”
He added that he intended to work on the basis if Google obtained an order for Mr Hegglin to pay its costs there would be a properly contested and detailed assessment, which was “likely to result in a substantial reduction in the costs incurred to date and also in respect of costs hereafter”.
The judge concluded:
“I am far from satisfied that this litigation has been, or will be, conducted at proportionate cost by the second defendant. The claimant’s counsel’s fees for trial and preparation amount to £98,000 for two counsel for a five-day case. That is a very significant outlay. The second defendant has agreed to pay brief fees amounting fo £247,000 for the same case. I therefore amend the budget put forward by the second defendant so that GBP98,000 is allowed for that item.
“The second defendant’s solicitors’ costs for the trial are budgeted at £237,000. The claimant’s solicitors’ budget is £100,000 for the same item.
“Given the enormous amount of time which the second defendant’s solicitors have already devoted to this case I find it hard to justify that amount. It appears to me that a more realistic approach would be to make an order amending that figure and substituting an allowance of £125,000”.
I also amend the second defendant’s budget for dealing with the claimant’s expert report, if any. This stands at £58,618.75 for dealing with a 50-page document, but does not include any application or evidence in reply. I substitute a figure of £25,000 for that item.”
Mr Justice Edis said he was not criticising Google or its lawyers for having agreed terms, adding:
“I am concerned about what level of costs might be recoverable from the claimant should he lose at trial, which is a different question. Large commercial organisations are free to agree whatever terms they like when they retain lawyers.”
But he should not be taken as having approved any other item on the Budget, he said.
This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.