England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Strand London WC2A 2LL
		22nd April 2013

JUDGE SEYMOUR:

1. The application before the court is for orders set out in the application notice, which was issued on the 12^th April of this year on behalf of the Claimant and sought as follows:

"An order preventing the Defendant from selling or otherwise disposing of any hunting birds in his care at the premises at 11 Woodland View, Swindon Wiltshire, or attempting to sell or otherwise dispose of such birds and second; orders that the Defendant provide information and documents to the Claimant as specified in the draft order filed with this application notice, including an order for delivery up of electronic information."

2. The Claimants are Mr Halid Nasser Al Hajeri and Al Shafi Group Investment LLC, which is a limited liability company incorporated, as I understand it, in the United Arab Emirates. The Defendant is Mr Wayne Bennett. Mr Bennett is a breeder of birds, specifically a breeder of Falcons. The claim alleged against Mr Bennett is based upon the proposition that Mr Bennett agreed to sell his business, or at any rate the stock of his business, specifically a number of birds, either to Mr Al Hajeri, the first Claimant or to his Company, the second Claimant.
3. It is alleged that, following the alleged agreement, Mr Bennett was employed by one or other of the Claimants, or possibly agreed to provide on a self-employed basis services for one or other of the Claimant. The services in question, were alleged to be to look after the birds which, up until the alleged oral agreement to sell the assets of the business to one or other of the Claimants, had been the assets of Mr Bennett's own business.
4. The Particulars of Claim in this action seem to cover just about every conceivable possibility as to who it was who made an agreement with Mr Bennett and what precisely the agreement was. As I have indicated, there is a lack of precision as to which of the Claimants is the relevant contracting party in relation to either of the two contracts which seem to be alleged; the contract of sale on the one hand, and the contract in relation to the services of Mr Bennett on the other, an expression which I use deliberately vaguely, bearing in mind that there seems to be a lack of certainty as to whether Mr Bennett was an employee or an independent contractor under the second agreement.
5. There is no clear identification in the Particulars of Claim of any specific birds which were the subject of the alleged sale agreement. It is accepted that the full alleged purchase price has not been paid. It is the case for the Claimants that property in the assets of Mr Bennett's business passed, upon the making of the agreement, notwithstanding that the purchase price has not been paid in full.
6. The application before me has been attended by Mr Bell, counsel on behalf of the Claimants and his instructing solicitor. Mr Bennett has appeared in person with his partner, Miss Martin. Mr Bennett has told me, on oath, that the birds which were the subject of the contract of sale, which I think he accepts was actually made with one or other of the Claimants, had been sold by him, although he retains possession of a number of his own birds and birds which he says belong to his sons. Consequently, what is being said, in answer to the injunction is in effect that there is no point an order being made against Mr Bennett preventing him from selling or disposing of birds which are alleged to belong to one or other of the Claimants, because he no longer has them. That is a point which has great force, as it seems to me.
7. Mr Bell submits that, because Mr Bennett admits having some birds, I should make an order in the terms of the draft order restraining him from dealing with those birds, because those birds might hereafter be found to be birds which actually are the birds of one or other of the Claimants. I am wholly unpersuaded that that is the appropriate way forward.
8. The vagueness surrounding the arrangements between Mr Bennett and whichever of the Claimants is relevant in relation to each particular contract, means in effect, as it seems to me, that only Mr Bennett knows which were the birds which were sold to whichever of the relevant Claimants is appropriate, and which were not. He tells me that the birds which were allegedly the subject of the contract of sale have been sold and there is no evidence to contradict his assertion on oath to that effect. Consequently I am not persuaded that it is appropriate for me to grant any injunction to restrain Mr Bennett dealing with any of the birds which are currently in his possession.
9. In the context of the guidance given by Lord Diplock in American Cyanamid and Ethicon, I am not satisfied on the material which has been put before me that there is a serious question to be tried that ownership of any of the birds in Mr Bennett's current possession is actually in one or other of the Claimants. So far as the order for information is concerned, it has become depressingly common for Applicants for injunctions to seek in effect, on pain of being sent to prison in default, evidence against himself from a Defendant. This tendency seems to have developed particularly in the context of employment cases where a former employer is seeking to enforce against a former employee a restrictive covenant and to obtain by order of the Court, an affidavit from the Defendant admitting to breaches of the restrictive covenant in question. However, the effect of the orders which are sought against Mr Bennett in the present case is very similar. Mackay J in Aon Limited v. JCT Reinsurance Brokers Limited, the neutral citation number of which is [2009] EWHC 3448, emphasised that the jurisdiction which he suggested did in principle exist, was an extraordinary one and only to be exercised in exceptional circumstances. At paragraph 24 of his judgement, Mr Justice McKay said, having considered the authorities:

"In conclusion, I do not doubt, and nor has it really been strenuously argued by the defendants, that there are no circumstances and there is no case in which disclosure of this general type can be ordered where it is appropriate to do so in the exercise of the court's discretion. The issue for me is whether the circumstances here are such that it is appropriate to make what is on any view an exceptional and not a routine order, one which should not be made as a matter of course where prohibitory injunctions of the type found elsewhere in this proposed order are to be found."

10. In my respectful view, the important principle enunciated by Mackay J is sound and should be applied by the Court. The conduct of civil litigation in this country is not inquisitorial, it is adversarial. It is for a party seeking to pursue allegations against another party both to plead and to prove that which is alleged. It is no part of the ordinary process of civil litigation to interrogate a Defendant, on pain of imprisonment for failing to answer or for giving false answers, to obtain evidence which is not available to the party seeking to pursue causes of action against the Defendant. It is obviously within the jurisdiction of the Court in exceptional circumstances to make orders such as those which are sought in the present case in relation to disclosure of documents and the delivery up for inspection of a computer, but it is not an order which should be made in the ordinary case and in my judgment there are no exceptional circumstances in the present case which would justify making the order sought.
11. I observe that the enthusiasm for seeking orders of this type does seem to extend as far as assuming, as perhaps Government bodies do from time to time, that everyone in this country has a computer, knows how to use it, and frequently does so, notwithstanding that there are actually many people in this country, and Mr Bennett tells me that he is one, who do not have a computer and do not know how to use it. So in those circumstances, I am not persuaded that it is appropriate to make any order on this application. This application fails and is dismissed.
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