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

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Cite as: [2014] EWHC 269 (QB)

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		Neutral Citation Number: [2014] EWHC 269 (QB)
		Case No: HQ14X00531

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

12/02/2014

B e f o r e :

THE HONOURABLE MR JUSTICE TUGENDHAT
____________________

Between:

	IAN MATTIOLI	Claimant
	- and -
	XY	Defendant

____________________

Desmond Browne QC and Yuli Takatsuki (instructed by Gateley LLP) for the Claimant
The Defendant was represented by Cohen Cramer Solicitors on 12 February
Hearing dates: 6 and 12 February 2014
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Tugendhat :

On 6 February 2014 at about 16:15 Mr Browne applied to the court for a non-disclosure order before the issue of proceedings. I granted the order substantially in the form sought until the return date fixed for 12 February. The form of order was in the form of the Model Order. All non-disclosures orders are required be in that form and in particular to include a return date.

He also applied for an order that the court sit in private. This was necessary because the evidence had not yet been reduced to writing, and disclosing it in open court by oral presentation would have defeated the purpose of the application. Since the application was without notice to the Defendant it would also have been an injustice to him to hear in public allegations against him which he could not answer. Restrictions on the provision of documents (CPR PD 5.4C and PD 25A 9.2) were necessary for the same reason.

Mr Browne also applied for an order that the identity of the Defendant be given by the letters appearing in the title to the action. This was because the application related to communications between the Claimant and an individual named in the Confidential Schedule ("the Third Party"), and to identify the Defendant would risk identifying the Third Party, whose private and confidential information is the subject of the action.

The information which I ordered be not disclosed is information contained in an exchange of correspondence between the Third Party and the Claimant. It is information the disclosure of which would be prohibited pursuant to the law of confidentiality as it has been recognised for many decades, whether or not it might also be prohibited pursuant to the law of privacy as more recently recognised.

To give effect to the rights of the Third Party I required a variation to the form of the Model Order. I required the Applicant to undertake to notify that individual of the Order and of the return date, so as to enable the Third Party to make representations if desired. In the event there has been no request for an opportunity to make such representations.

It was necessary to proceed without notice to the Defendant because the Defendant had already made a number of disclosures of the information in question to a limited number of publishees, and there was evidence that there was a risk that if notice were given the Defendant might make further disclosures before the matter could be brought before the court, and so defeat the purpose of the proceedings.

When the matter came back before the court on the return date the court was invited to accept undertakings from the Defendant substantially in the form of the injunction granted on 6 February, and on that basis to order that all further proceedings in the action be stayed. The Defendant was represented by solicitors who signed that form on his behalf.

The form of order also provided for the Defendant to continue to be referred to only by the above initials, and for there to continue to be a restriction on the right of members of public to access the court file. I consider that these derogations from open justice remain necessary for the reasons given above.

Accordingly I accepted the undertakings and stayed the proceedings.

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