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
		14/05/2014

Mr Justice Tugendhat :

1. On 24 April 2014 Mr Rushbrooke QC applied for a non-disclosure order to Andrews J, the judge hearing interim applications in the vacation. Andrews J granted the order substantially in the form of the Model Order (in accordance with the Practice Guidance (Interim Non-Disclosure Orders) [2012] 1 WLR 1003) until the 1^st May, the return date specified in her order. On that day the Defendant appeared before with his solicitor Mr Shaidy. At the Defendant's request, I adjourned the hearing to 8 May to enable him to put in evidence. On 8 May the Defendant offered undertakings to the court for a period ending on 10 November 2014 in the form then sought by the Claimant. I accepted those undertakings and granted the order as it was then agreed between the parties.
2. The form of the Model Order provides in its operative paragraph:

"Until [ ] (the return date) / the trial of this claim or further Order of the Court, the Defendants must not: (a) use, publish or communicate or disclose etc"

3. However, the court now normally departs from the form of the Model Order in one important respect. It normally requires that non-disclosure injunctions or undertakings be limited to a specified time (and not to be 'until trial or further order') to ensure that, if the claimant does not prosecute the action in accordance with the CPR, an order granted in accordance with the criteria applicable to interim relief will not in practice become permanent as a result of the claimant's default. If the case has not been settled or decided at a trial within the specified period, then any non-disclosure is likely to be extended for such further time as may be necessary for such purpose (unless there has been a material change in circumstances). See for example AVB v TDD [2014] EWHC 1442 (QB).
4. The parties to this action are both men. The Claimant had employed the Defendant for some years in a role which he describes as being that of a personal assistant. The Claimant originates from the Middle East, but he has substantial interests in this jurisdiction and elsewhere. In the course of that employment the Defendant obtained much information about the affairs of the Claimant including personal and private information. It is personal information which is the subject of this action.
5. The Defendant was not content with the circumstances in which his employment recently came to an end. At the first hearing the Claimant produced to Andrews J documentary evidence that the Defendant had demanded a substantial payment from the Claimant, and that he had already disclosed, and was threatening in the future to disclose, information obtained by him in the course of his employment which the Claimant contends is private and confidential. The Claimant contends that the Defendant's demands for money are unwarranted.
6. It was on this basis that Andrews J was satisfied that it was necessary that the order should be made, that there were compelling reasons why the Defendant should not be notified in advance of the order, and that the order should include other derogations from open justice to forestall the risk that the Defendant might defeat the purpose of the proceedings by making disclosures which he ought not to make before the non-disclosure order could be made or served upon him.
7. The hearing before Andrews J was in private, and included provisions to limit access to the hearing papers of the kind specified in the Model Order (CPR PD 5.4C and PD 25A 9.2). The parties were also anonymised, as is common in cases of alleged blackmail. The Claimant has reported the matter to the police in addition to taking these civil proceedings.
8. The hearings before me were in public. By that time the Defendant had the advice and assistance of his solicitor Mr Shaidy.
9. In his evidence adduced before me the Defendant raised issues of fact on the evidence adduced by the Claimant as to the disclosure or threatened disclosure of information. He contended that his demands for money were warranted by the circumstances of his employment and its termination. Those are issues which will have to be determined, if not settled, either in these proceedings or in related employment proceedings. The court cannot resolve such issues on an interim application.
10. Anonymity orders are normally made in respect of a complainant in a case of alleged blackmail, whether the case is criminal or civil, because the complainant could not otherwise be protected against the threats of disclosure. Anonymity orders are commonly made to protect defendants before the conclusion of a trial in civil cases because disclosure of the name of the defendant may impliedly disclose the name of the claimant, and because, at interim hearings, the defendant does not normally have the opportunity to make public his defence to the allegations against him.
11. Having considered the Human Rights Act 1998 s.12, and the evidence before the court on each occasion, I, like Andrews J, was satisfied that the Claimant is likely to establish that publication of the information the subject of the order should not be allowed. It is for these reasons that she and I made the orders that we made.