Dismissing D’s application to set aside permission to serve out, and dismissing the Cs’ application to rely on two further grounds to serve out.
(1) Of the available grounds for granting permission to serve out:
(a) The Cs could not bring themselves within the ground in 3.1(2). The fact that D had on other occasions interfered with the privacy rights of other persons was not a basis on which the court could contemplate granting an injunction.
(i) There was no dispute that the DPA claim counted as a claim in tort; there was no real dispute that the claim for breach of confidence was not a tort; and, in relation to misuse of private information, this was a tort within the meaning of ground 3.1(9).
(ii) Damages for distress are recoverable in a claim for misuse of private information, and the Cs’ claim for misuse of private information fell within ground (9)(a).
(iii) The publication complained of by the Cs was effected within the jurisdiction.
(iv) Firstly, the Cs were not debarred from relying on this ground for the DPA claim because they did so at this late stage. Second, the Cs each had a sufficiently arguable case that their Art 8 rights were engaged, and that they did suffer sufficiently serious damage. Although the meaning of damage under the DPA was a question of law and the general rule might have suggested that the judge should decide it, this was a controversial question of law in a developing area and it was desirable that the facts should be found. The judge did not decide the question. However, his preliminary view was that damage in s 13 of the DPA did include non pecuniary damage.
(a) The effect of the judge’s conclusions on distress and whether the DPA claim could be brought within ground (9) was that, on recoverable damage, there was a sufficiently strong case to amount to serious issue to be tried, or a real and substantial tort.
Having held that the Cs’ article 8 rights were engaged and that they would overcome the threshold of seriousness, the Judge did not attach weight to Google’s dissemination of information through advertising in any balancing exercise with Article 8 rights.
This was not a case in which it would have been just to set aside service on the grounds that the game would not be worth the candle.
(b) The information that was apparent from the Cs’ screens was, on particular occasions, private information.
(c) The Cs had sufficiently arguable cases that their information was personal data for the purposes of the DPA s1.
(3) The Cs had clearly established that this jurisdiction was the appropriate one.
(a) The question of whether property included information of the kind in question was a question of law of some difficulty and should have been argued in circumstances where the parties had had a proper opportunity to put the relevant evidence and submissions of law before the court.
(b) The claim in restitution was the subject of very little elaboration by the Cs, and the judge noted the observations of the judge in Ashton Investments Ltd v Rusal  1 Lloyd’s Rep 311 on a similar point that the claim in that case was not in substance one in restitution.