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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/03/2013

Mrs Justice Sharp:

1. At a without notice hearing on the 8 March 2013 heard in private, Tugendhat J granted an application for an interim injunction in this matter until the return date. In summary, it restrained the Defendants from (a) using, publishing or communicating the Claimant's private and confidential information (the Information); and (b) publishing any information which was liable to or might identify the Claimant as a party to the proceedings and/or as the subject of the Information or which might lead to the Claimant's identification in such a respect. He also made other orders against the First Defendant, including for disclosure, and for the delivery up of specified materials containing the Information.
2. As the order Tugendhat J made recorded, the Court considered there were compelling reasons for notice not being given, namely that the First Defendant, purporting to act on behalf of the Second Defendants, has demanded a very substantial sum for delivering up the materials referred to in the Confidential Schedule 2 to the Order; and that there was a real risk that, if given notice of this application, one or more of the Defendants would disclose or publish the materials and/or information referred to in the Confidential Schedule 2 to the Order.
3. Tugendhat J was satisfied it was strictly necessary for the Claimant to be anonymised in these proceedings in accordance with CPR 39.2, and that no copies of the confidential schedules to the statements of case or of the witness statements and the applications should be provided to non-parties without further order of the Court. He also made consequential orders for the protection of the hearing papers.
4. This is the public judgment given following the return date hearing, at which the First Defendant was represented by his solicitor, Mr Goldkorn (the Second Defendants have not yet been served with notice of the proceedings). I was satisfied it was strictly necessary for the hearing to be in private pursuant to CPR 39.2(3)(a), (c) and (g), otherwise the application would be self-defeating.
5. The evidence before Tugendhat J consisted of a witness statement from the Claimant and from four others individuals with confidential schedules. The further evidence before me consisted of two further witness statements served on behalf of the Claimant (one from a person I shall call X, was referred to but not provided until after the hearing as a result of an oversight) and two from the First Defendant himself. It is clear from X's statement, that X fully supports the Claimant in these proceedings, as Tugendhat J was told at the 8 March hearing.
6. Mr Nicklin for the Claimant submitted in short, that this is a "blackmail" case. The evidence from the Claimant and his witnesses in summary is that a surreptitious recording was made during the early hours of the morning by an eavesdropper of an intensely personal, private and confidential conversation between the Claimant and X which took place in the hallway of a converted house where X lives in one the flats. Neither the Claimant nor X believed their conversation could be overheard, nor did they know it was being recorded. The recording was probably made by one or perhaps both of two men (the Second Defendants) who had been in X's flat and who X had only met that evening in a pub. Their identity is not presently known. Thereafter, the First Defendant, who said he represented one of the Second Defendants, met the Claimant's solicitor and others representing the Claimant and X on a number of occasions and made it clear he wanted an extremely large sum of money for the recording, which he described as "sensitive" with the threat that it would be made public if the demand was not met. In the course of those meetings he provided what was said to be a transcript of the conversation between the Claimant and X, a copy of which was contained in the confidential schedules to which I have referred.
7. The two witness statements from the First Defendant do not engage with those facts but with his compliance with the order made by Tugendhat J in relation for example to delivery up. Mr Goldkorn made it clear that it would be disputed at trial that the Information was private or confidential. However, he accepted that the relevant threshold for the grant of interim relief in this case had been met, and therefore consented on the First Defendant's behalf to the continuation of the injunction granted by Tugendhat J until trial or further order. There were some particular and additional aspects of the Order now being asked for with which he took issue. I resolved those issues at the hearing and it is not necessary to say anything more about them at this stage.
8. I continued the Order made by Tugendhat J with the additions I have mentioned, until trial or further order. There is no present intention to serve the Order on any non-party. I also continued the anonymity order. I was satisfied on credible evidence before the court, that it was appropriate to grant the relief sought and that those parts of the Order which entailed a derogation from the principle of open justice were strictly necessary. The considerations which apply to this case are in my view analogous to those which applied in cases such as DFT v TFD [2010] EWHC 2335 (QB), AMM v HXW [2010] EWHC 2457 (QB) and KJH v HGF [2010] EWHC 3064 (QB). In coming to my conclusion, both as to the substance of the application and the form of the Order to be made, I bore in mind and applied the guidance given by the Court of Appeal in JIH v News Group Newspapers [2010] EWCA 2818 and Ntuli v Donald [2010] EWCA 1276; and in the Practice Guidance on Interim Non-Disclosure Orders issued by the Master of the Rolls.