05/02/2020 Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016) non-disclosure. No explanation has been offered for the omission. In the exercise of my discretion, I would have refused to permit leave to be served out of the jurisdiction in respect of these matters, regardless of my conclusion that there had been no evidence of any access to URL2 via a VPN or a proxy server in Northern Ireland. The same reasoning applies to the cause of action which the plaintiff attempted to canvass in respect of captions and/or material appearing on the Google search engine. This evidence should have been available at the time of the application to Stephens J. The failure to draw these potential causes of action to his attention was a material non-disclosure. The court should not permit the plaintiff to mend his hand at this stage. CONCLUSION [96] In the circumstances, the plaintiff has leave to serve proceedings out of the jurisdiction on the grounds of libel, breach of the 1998 Act and the 1997 Order in respect of URL2 only. This relates exclusively to the period of 23 days (at most) between when Google were notified about the objectionable content of URL2 and access to URL2 being blocked to Northern Ireland citizens. FURTHER THOUGHTS [97] This interlocutory injunction has taken up considerable court time. Enormous efforts have been expended by both sides. Such applications need to be better managed in the future. I have spoken to the judge in charge of the Queen's Bench list before making these recommendations which follow. (i) If, at all possible, the judge who hears the ex parte application should hear the application to set aside leave for service out of the jurisdiction. This will prevent extensive discussion of what did or did not take place before the original judge. Of course, sometimes it will not be possible for the same judge to be available and that is why the judge hearing the Order 12 Rule 8 and/or Order 32 Rule 8 and/or inherent jurisdiction application must know exactly what case was made before the original judge at the ex parte hearing and whether there had been any material non-disclosure on the part of the moving party. (ii) If the proposed defendant is advised of the ex parte hearing and attends but chooses not to take part, despite being offered the opportunity to do so, either by making submissions then, or if necessary, obtaining an adjournment of the application so as to allow its legal team to take further instructions and make submissions at a later date, an issue will arise as to whether it should be permitted later to bring an application to set aside the order that has been granted for leave to serve out of the jurisdiction. It may be taken to have waived its rights to do so and that a further application would be an abuse of the process to the court and/or contrary to Order 1 Rule 1(A). This will obviously depend on all the circumstances. However a defendant should appreciate that it chooses not to appear at the original hearing at its future peril. (iii) Great care must be taken at the start of any proceedings to focus the plaintiff's case on the relevant cause(s) of action. In an application for leave to serve out of the jurisdiction, good practice dictates that there should be a draft statement of claim which is focussed and highlights both the relevant causes of action and the material facts relied upon. There is no room in such an application for a "belt and braces" approach and the inclusion of causes of action which at the very best may only be of marginal importance. Indeed, if such a tactic is to be adopted, then it may well have adverse consequences in costs for the plaintiff. (iv) In any ex parte application for leave to serve out of the jurisdiction counsel for the plaintiff should, if possible, in a skeleton argument: (a) set out what gateway(s) the plaintiff is relying upon and demonstrating in respect of each gateway that there is a good arguable case in respect of each cause of action relied upon; (b) explain why in respect of each cause of action there is "a serious question to be tried". Junior counsel must be aware that failure to raise a matter of which the plaintiff has knowledge or should have knowledge may well preclude the plaintiff, in the absence of a file:///Users/nerissa/Downloads/Columbia CSV/Galloway v Frazer & Ors [2016] NIQB 7 (27 January 2016).htm 25/26