TBD (Owen Holland) Ltd v Simons & Ors

On 7 November 2018, the Company applied for a search order (the “Search Order”) against the First and Second Defendants, but not against the Third Defendant. The Search Order was executed on 9 November 2018. Although the Search Order specified a return date of 16 November 2018, that return date did not take place until 18 February 2019. (Footnote: ²)

The Search Order, as I will describe, made provision for the “cloning” or “imaging” of documents from computers (broadly defined) at the premises to be searched. It is appropriate that I define briefly what I mean by these terms, since they are central to this application:

The First Defendant, Mr Andrew Simons. Mr Simons was a former employee of the Company who, when he left the employment of the Company to work for the Second Defendant, took with him some documents that he had acquired whilst he was the Company’s employee. After initial evasion and denial, he now admits wrongdoing and admits fabricating a document in an attempt to justify his taking and possession of these documents. Mr Simons presently acts as a litigant in person.

Although not a party to the application, Mr Simons was present in court on the hearing of the application. I permitted him to intervene as he saw fit. I am grateful to him for his interventions, and to the courtesy of counsel in facilitating this.

The Second Defendant, G2A Limited (“G2A”). G2A is the company that employed Mr Simons and of which he was a director. G2A sought to compete against the Company in supplying similar equipment to that supplied by the Company to the aviation sector. G2A is now in insolvent liquidation.

Third Defendant (Obcon). The basis of Obcon’s joinder was that it was the sole shareholder in the Second Defendant (G2A). (Footnote: ⁵)

Enjoined the Defendants from infringing the Company’s copyright in certain copyright works (the “Copyright Works”);

Enjoined the Defendants from manufacturing, importing, selling, offering for sale, exhibiting, advertising or otherwise dealing in any engineering works which reproduced (in whole or in part) the Copyright Works;

Required the Defendants to deliver up all of the Company’s property in their control, as well as all products resulting from infringement of the Company’s copyright in the Copyright Works;

Required the Defendants to provide a schedule of any sales and supplies made by the Defendants of products reproducing (in whole or in part) the Copyright Works; and

Required the Defendants to provide a schedule of all third parties to whom quotations had been provided for the supply of products reproducing (in whole or in part) the Copyright Works.

Simon Burns Solicitors – contended that “they had been provided with the allegedly infringing material by the company subsequently joined as [the Sixth Defendant (Kelf)]…Kelf, it was said, had obtained the material from an Indian entity called Transtec, which acted under licence from [the Company]. Thus, it was claimed, the material had come into the possession of [the Second Defendant (G2A)] legitimately”. (Footnote: ⁶)

The Search Order bore on its face a prominent penal notice addressed to the First Defendant (Mr Simons) and the Second Defendant (G2A). Paragraph 4 of the Search Order contained the usual provision that reference to the “Defendant” meant reference to both Defendants.

Paragraph 3 of the Search Order specified a return date of 16 November 2018.

Paragraph 6 of the Search Order identified the persons authorised to enter certain premises:

“The Defendant must permit the following persons:

(a)

One of Ben Daniels, Simon Thomas and Lindsay Elliott of DAC Beachcroft LLP

(the “Supervising Solicitors”);

(b)

Two of Hugh Hitchcock, Aisha Wardell, Natasha Nicholas, Jonathan Stroud, Steven Koukos and Charlotte Waite solicitors and/or trainee solicitors in the firm of Acuity Legal Limited, the Claimant’s solicitors; and

(c)

One of Dean Southworth, Jamie Sharpe, Patrick Nickleson, Alex Eames and Christopher Jackson of CY4OR, forensic computer specialists (the “Computer Experts”)

(together the “Search Party”), to enter each premises mentioned in Schedule A to this order and any other premises of the Defendant disclosed under paragraph 19 below and any vehicles under the Defendant’s control on or around the premises (the “Premises”) so that they can search for, inspect, photograph, copy, print, save, or dictate, and deliver into the safekeeping of the Claimant’s solicitors all the documents and articles which are listed in Schedule B to this order (the “Listed Items”).

Schedules A and B, both mentioned in paragraph 8, are obviously significant:

Paragraphs 9ff contained the following (standard) terms restricting the search:

“9 Before the Defendant allows anybody onto the premises to carry out this order, he is entitled to have the Supervising Solicitor explain what it means in everyday

language.

10 The Defendant is entitled to seek legal advice and to ask the court to vary or discharge this order. Whilst doing so, he may ask the Supervising Solicitor to delay starting the search for up to 2 hours or such other longer period as the Supervising Solicitor may permit. However, the Defendant must:

(a)

comply with the terms of paragraph 23 below;

(b)

not disturb or remove any listed items; and

(c)

permit the Supervising Solicitor to enter, but not start to search.

11(1) Before permitting entry to the premises by any person other than the Supervising Solicitor, the Defendant may, for a short time (not to exceed two hours, unless the Supervising Solicitor agrees to a longer period):

(a)

gather together any documents he believes may be incriminating or privileged; and

(b)

hand them to the Supervising Solicitor for him/her to assess whether they are incriminating or privileged as claimed.

(2)

If the Supervising Solicitor decides that the Defendant is entitled to withhold production of any of the documents on the ground that they are privileged or incriminating, (s)he will exclude them from the search, record them in a list for inclusion in his/her report and return them to the Defendant.

(3)

If the Supervising Solicitor believes that the Defendant may be entitled to withhold production of the whole or any part of a document on the ground that it or part of it may be privileged or incriminating, or if the Defendant claims to be entitled to withhold production on those grounds, the Supervising Solicitor will exclude it from the search and retain it in his/her possession pending further order of the court.

12

If the Defendant wishes to take legal advice and gather documents as permitted, he must first inform the Supervising Solicitor and keep him/her informed of the steps being taken.

13

No item may be removed from the premises until a list of the items to be removed has been prepared, and a copy of the list has been supplied to the Defendant, and he has been given a reasonable opportunity to check the list.

14

The Premises must not be searched, and items must not be removed from them, except in the presence of the Defendant.

15

If the Supervising Solicitor is satisfied that full compliance with paragraphs 13 or 14 is not practicable, (s)he may permit the search to proceed and items to be removed without fully complying with them.”

The Search Order made the following provision for the delivery up of articles or documents. The provisions at paragraphs 18 and 19 are non-standard, and paragraph 17 was materially revised: (Footnote: ⁸)

“16 The Defendant must immediately hand over to the Claimant’s solicitors any of the Listed Items, which are in his possession or under his control, save for anycomputer or hard disk integral to any computer. Any items the subject of a dispute as to whether they are listed items must immediately be handed over to the Supervising Solicitor for safe keeping pending resolution of the dispute or further order of the court.

17

The Defendant must immediately give the search party effective access to the computers on the premises to include any online data storage, with all necessary passwords, to enable to computers to be searched, forensic images of the data to be taken, and access to all of the Defendant’s email accounts (including web-based email accounts) on which any of the listed items may be stored. If they contain any Listed Items, the Defendant must cause the listed items to be displayed so that they can be read and copied. The Defendant must provide the Claimant’s solicitors with copies of all Listed Items contained in the computers. All reasonable steps shall be taken by the Claimant, the Claimant’s solicitors and the Computer Experts to ensure that no damage is done to any computer or data. The Claimant and its representatives may not themselves search the Defendant’s computers unless they have sufficient expertise to do so without damaging the Defendant’s system.

18

The Computer Experts may take a copy of the files on any computers found on the premises for analysis by them following the completion of the search. Following this analysis, they may deliver into the safekeeping of the Claimant’s solicitors any further listed items which they recover.

19

For the purposes of this order, the term “computers” is not confined to conventional desk top or lap top computers but includes tablets, mobile telephones and any other form of storage or storage device for user generated computer readable information (including disks, USB sticks and external devices).”

The Search Order made provision for the Defendants to swear affidavits regarding the location of Listed Items. (Footnote: ⁹)

Schedules C to F to the Search Order contained various undertakings, notably (for present purposes):

In the Report, Mr Thomas described the search of the Premises used by G2A. (Footnote: ¹⁵) The Search Order, which (as I have described) was against both Mr Simons personally and G2A, was served on Mr Simons (both for himself and G2A). The report notes that whilst “understandably shocked at the events taking place, Mr Simons was cooperative, helpful and accommodating throughout the execution of the Order”. (Footnote: ¹⁶)

Turning, then, to the search itself, I propose to refer to “Non-Imaged Materials” and “Imaged Materials”. Non-Imaged Materials are those materials that have been identified pursuant to a subject-specific search (in the sense understood in paragraph 3(2) above): a subject-specific search, to retrieve specific data, requires a file-by-file review of this data. By contrast, Imaged Materials are those materials that have been obtained by the wholesale copying of digital data on or in a particular device, like a hard drive or memory stick. Self-evidently, Imaged Materials are not (unless coincidentally) subject-specific.

The distinction is not as straightforward as the distinction between “soft-copy” (i.e. electronic) and “hard-copy (i.e. physical) materials. It is possible, for instance, to search a file of soft-copy documents on a document-by-document basis, without imaging those files. Indeed, the Search Order envisaged this as an option (albeit with an alternative provision for imaging). (Footnote: ¹⁸) Had the Company obtained the Search Order Material through a file-by-file search seeking, in the case of each file, to ascertain whether that file was a Listed Item, then the Search Order material would have comprised Non-Imaged Materials. (Footnote: ¹⁹)

The Company did, pursuant to the Search Order, conduct a file-by-file review of some items, which appear to have been hard-copy materials:

“11 The Listed Items: During the search, Charlotte Waite of the Claimant’s Solicitors made a list of the items thought to fall within the ambit of Schedule B of the Order, a copy of which appears at Appendix 1 to this report. The Claimant’s solicitors took into their possession the originals of those documents, in accordance with paragraphs 6 and 16 of the Order, following discussions between all of the parties – including Mr Simons, Mr Simons’ solicitors and G2A’s solicitors – as to whether the documents fell within the ambit of the listed items in Schedule B of the Order.

12

There was some debate during the search as to whether some documents which were found at the Premises properly fell within the ambit of Schedule B of the Order. Mr Simons, Mr Simons solicitors and G2A’s solicitors took an accommodating approach. It was decided that where documents were not disputed items, but it remained unclear as to whether they properly fell within the ambit of Listed Items, the documents were given to the Claimant’s solicitors and were recorded as listed items, but that the three sets of solicitors at the Premises acting for the parties would seek to determine between them after the search whether they were all indeed documents which properly fall within Schedule B of the Order, with any unresolved points to be determined at the hearing on the return date…

13

Use was made of a scanner at the Premises. All of all of the listed documents were scanned and emails of them sent to each of the solicitors at the Premises. Copies of those documents appear at Appendix 2 of this report, comprising the listed items.”

Thus, the materials so identified were, using my terminology, Non-Imaged Materials.

There were two disputed hard copy items, which are described in paragraph 15 of the Report. Their nature is immaterial. What is of interest is how the Supervising Solicitor dealt with them:

“In any event, I provided a separate list of those items to Mr Simons, which he checked, in accordance with paragraph 13 of the Order. A copy of that list was also provided to Mr Simons’ solicitors and to G2A’s solicitors. I await the further instructions of the Court in respect of those two original documents in my possession…”

As I have noted, paragraphs 17 and 18 of the Search Order provided – so far as soft-copy materials were concerned – an option, either to conduct a file-by-file review or to image. The Report stated: (Footnote: ²⁰)

“16 Access to the images taken of the electronic devices: There was some discussion between the parties during the search as to how best to implement some provisions in paragraphs 17 and 18 of the Order, given that:

a.

Mr Simons confirmed that the images of the electronic devices preserved by the Computer Experts will contain listed items as well as otherdocuments which are outside the scope of the listed items in Schedule Bof the Order, access to which the Claimant is not entitled;

b.

Mr Simons indicated that the imaged documents might also includeprivileged documentation, again to which the Claimant is not entitled; and c. The imaging itself took place during the Search Period (and in some instances after the search had completed, over the course of the weekend), such that it was impractical to examine the content of the electronic devices whilst they were being imaged.

The first recital of the Order provides some context: (Footnote: ²⁴)

“UPON the adjourned hearing mentioned in paragraph 1 of the Order dated 4 January 2019 for consideration of the order to be made upon the application of the Second and Third Defendants by notice dated 20 November 2018 and upon the application of the First Defendant by notice dated 22 November 2018 and upon the return date of the Search Ordermade on 7 November 2018 and consequent to the judgment handed down on 4 January 2019”

The claim against the Third Defendant (Obcon) was struck out and the 4 July 2018 Order was discharged insofar as it related to the Third Defendant. (Footnote: ²⁵)

The Search Order was set aside insofar as it related to the home address of Mr O’Boyle.²⁶ Apart from that, the applications to have the Search Order set aside were dismissed. (Footnote: ²⁶)

Although the 18 February 2019 Order also made provision for amendments to the pleadings and for costs, there was no further consideration of matters that would ordinarily be the subject of a return date of a search order. That is, to say the least, curious, given that the first recital (quoted above) expressly refers to 18 February 2018 being the return date for the Search Order.

In a letter to Simon Burn Solicitors, dated 13 November 2018, the Company’s solicitors stated:

“If the return hearing is to be adjourned then we would suggest that the parties use the intervening period to discuss and attempt to agree the parameters for our client’s search of the electronic data copied during the search order. To this end, we propose to provide you with a key word list to be used by the computer experts in filtering the relevant documentation.”

Although this letter referred to Simon Burn Solicitors as acting for the First Defendant (Mr Simons), the Second Defendant (G2A) and the Third Defendant

(Obcon), this was not accurate as both the Company and the Company’s solicitors must have known. The First Defendant (Mr Simons) was represented by different solicitors at the time of the execution of the Search Order. (Footnote: ²⁸) There appears to have been no response to this letter.

On 15 November 2018, the Company’s solicitors again wrote to Simon Burn Solicitors, this time noting that Simon Burn Solicitors were acting for the Second and Third Defendants. This letter stated:

“Whilst the physical search has already uncovered a large amount of “listed items” considered relevant to the substantive proceedings, the scope of the search also extended to imaged data contained on electronic devices at the premises and we enclose a copy of the exhibit listing table provided by the instructed IT experts in respect of the same.

As you are aware, we are hoping to commence the electronic search of the imaged data as soon as possible as the information may assist the Court in dealing with matters raising [sic] at the return hearing. However, we appreciate that the parties must try to agree the parameters of the search and to this end our proposals are as follows:

1.

We intend to ask the experts to collate photographs, images and drawings so that all files can be reviewed. We are confident that this will not be subject to contention, as you and your client will appreciate that keywords are unlikely to register any positive responses against these file types.

2.

In respect of all other file types, we intend to apply a keyword search as per the attached draft. Please note that we have made further inquiries with the IT experts as to how the derivations of words are searched and await their response. Provided that the experts confirm that, for example, searching “trolley” will register positive responses for “bottle trolley”, “oxygen trolley”, etc, it is possible for the keyword list to be reduced accordingly.

We look forward to hearing from you as a matter of urgency and for the avoidance of doubt by no later than 4pm on Friday 16 November 2018.”

An equivalent letter was sent to Mr Simons’ solicitors (Hugh James Solicitors). In any event, despite chasers, no response was received from either firm.

Matters appear to have lapsed whilst the application to set aside the Search Order progressed. However, before the 18 February 2019 Order, on 14 January 2019, the Company’s solicitors again wrote to Simon Burn Solicitors. The letter is addressed to Simon Burn Solicitors as if that firm was acting for all three Defendants. This was clearly an error as far as Mr Simons was concerned – as the Company’s solicitors had previously corresponded with Hugh James Solicitors. By this time (as the recitals to the various orders at this time make clear), Mr Simons was acting in person. The letter to Simon Burn Solicitors stated:

“As you are aware, we are awaiting confirmation from the Court for the listing of the handing down of HHJ Keyser QC’s draft judgment and which will be combined with a CMCC. (Footnote: ²⁹)

On that basis, it is necessary for us to advance as far as possible all outstanding issues and in particular now undertake a proper analysis of the information that was seized as part of the search order undertaken on 9 November 2018. We would therefore be grateful if you could please now revisit the keyword schedule that was provided to you under cover of our letter of 16 November…We fully expect the Court will expect the parties to advance this issue as far as possible prior to the CMCC as inevitably this will have a bearing on the timetable and the appropriate directions.

As you are aware the search has already produced substantial information and which was exhibited by way of 9 lever arch files to the affidavit of Mr Simons…” This letter was not responded to by Simon Burn Solicitors.

Notwithstanding the letter to Simon Burn Solicitors, the Company’s solicitors also wrote, in similar terms, to Mr Simons on 18 January 2019.

On 22 January 2019, the Company’s solicitors noted that a hearing had been listed for 18 February 2019 before His Honour Judge Keyser, QC. The letter was, again, erroneously addressed to Simon Burn Solicitors as the solicitors for all three Defendants (which continued not to be the case). The letter sought a response to previous letters regarding the searching of the Search Order Materials. Again, there was no response.

On 1 February 2019, the Company’s solicitors wrote to Simon Burn Solicitors expressing astonishment at the absence of a substantive response and stating:³¹

“With your application on behalf of G2A to set aside the search having been dismissed it is sensible for the hearing listed for 10:30am on 18 February 2019 to deal with the outstanding issues from the part-heard handing down, the proposed keywords list being one of increasing importance. We have provided you with sufficient opportunity to review, consider and provide further comment in respect of our client’s proposed keywords, however, it appears that neither you nor your client are prepared to sensibly engage on this issue. In fact, our requests and genuine attempts to agree this have simply been ignored.

We and our client cannot tolerate any further delays in the analysis of the data recovered from your client’s premises as evidently this will ultimately have a knock-on effect on the substantive proceedings and the issues for the Court to consider. We firmly believe it will considerably assist the Court at the hearing on 18 February if the analysis is already underway. We would remind you that it is now almost 3 months since the search order was executed and you have had the proposed word search in your possession as long. Accordingly, should we not hear from you in relation to any specific objections to any of the keywords by 2pm on Tuesday 5 February 2019, we will presume that they are agreedin their draft form and will proceed with our client’s IT experts on this basis. Counsel hasactually pointed out there is in fact no obligation on us to agree this with you.”

A letter, in similar terms, was written to the First Defendant (Mr Simons).

Although Simon Burn Solicitors did not respond to this letter, Mr Simons did. In an email expressly referring to the 1 February 2019 letter, Mr Simons raised a series of objections to the keywords suggested by the Company for the purposes of reviewing the Imaged Materials. It is – for reasons that I give below – unnecessary for me to consider the cogency (or otherwise) of Mr Simons’ points. What is important is that he made clear that he had concerns and objections.

The Company’s solicitors responded to Mr Simons’ email in a letter dated 7 February 2019. It is unnecessary to set out the detail of this response, save to note that the Company’s solicitors took issue with the points raised by Mr Simons. Again, for reasons that I will give, it is unnecessary to consider these specific responses further. The letter concluded:

“On a general note, we highlight that the word search is not conclusive either way of the outcome of this claim or the pleaded issues but relates to potentially relevant information that has been gathered as a result of the search. We cannot see any of your objections to be remotely reasonable in the circumstances to prevent this information being looked at and, if having considered our explanation, it remains your case that all of these words are objected to then the only alternative would be to incur further costs in disputing this with you at the hearing on 18 February. We sincerely hope that can be avoided and would ask you to reflect immediately on the objections and/or properly particularise these in light of the above facts.”

Mr Simons responded, on 15 February 2019, further articulating his objections.

To seek to commence committal proceedings against Mr O’Boyle. As to this:

To join other Defendants. A matter of days before the application for permission to commence committal proceedings against Mr O’Boyle, the Company applied to amend its pleadings. The application for permission to commence committal proceedings was issued on 22 May 2019; the application to amend was issued two days earlier, on 20 May 2019. Permission to amend was granted by order of His Honour Judge Keyser. By the amendments, the Third Defendant (Obcon) was rejoined to the proceedings and the Fourth (OSL), Fifth (Mr O’Boyle), Sixth (Kelf) and Seventh (Mr Pommellet) Defendants were joined. The basis for the joinder was that all of these Defendants were involved in the conspiracy against the Company. The details do not matter for present purposes. It is sufficient to say that the basis for the joinder of the Applicants – the Third to Fifth Defendants – is, at least in part, the Searched Material.

To support committal proceedings against Mr Simons. The Company also applied for permission to begin committal proceedings against Mr Simons. As to this:

To obtain evidence from third parties. The Applicants have identified letters written to third parties by the Company’s solicitors, using Searched Material in order to obtain further information. For example, on 8 April 2019, the Company’s solicitors wrote to the accountants of G2A regarding the ownership of G2A. It will be recalled that the basis for the claim against the Third Defendant (Obcon) was that it was the owner of the shares in the Second Defendant, i.e. its parent. This is denied by the Defendants, and the letter to the accountants sought to explore this point. In doing so, the Company referenced the Search Order material. (Footnote: ³⁵)

To strike out various parts of the Amended Particulars of Claim which are based, or appear to be based, on the Searched Material. In particular, they seek to strike out the claims against the Applicants.

Disclosure of the third parties to whom the Searched Material has been disclosed.

An injunction enjoining the further disclosure of such material.

Protection in relation to any privileged material contained in the Search Order Material.

Security for costs.

It was suggested that this was disproportionate litigation, in that “the game was not worth the candle”, and that the claim should be struck out on this basis. The Applicants relied upon Sullivan v. Bristol Film Studios, (Footnote: ³⁶) where the Court of Appeal upheld the strike out of a copyright and breach of contract case where the damages were far outweighed by the costs, and where a disproportionate amount of court time would be taken up were the claim to proceed to trial.

It was suggested that the Company’s overall conduct of this litigation warranted, if not a striking out of the claim, then some other form of court control. The Applicants relied upon the following contentions (which, it goes without saying, were by no means accepted by the Company):

was worth significant amounts of money, and even without this evidence I was not in a position to be able to say that the Company’s claim was so insubstantial that – even though arguable – it should not proceed because “the game is not worth the candle”.

First, has there been a breach of the Search Order and, if so, just how serious?

Secondly, assuming a breach of the Search Order, is this a matter that the Applicants can rely upon, given that the Search Order was made not against them, but against the First and Second Defendants?

Thirdly, assuming (i) a breach of the Search Order and (ii) standing on the part of the Applicants to raise the matter, what (if any) remedy should the Court impose?

case management armoury and should not be deployed unless its consequences can be

justified”. (Footnote: ⁶⁴)

In the first place, it seems to me highly likely that had the Company, at the return date for the Search Order, sought some form of disclosure of the Search Order Material, this would have been granted by the court. Given Mr Simons’ statement that the imaged files contained privileged material, I doubt very much whether a key-word approach would have been acceptable. Nor would it have been possible to have the First and Second Defendants’ solicitors go through the material on an undertaking not to allow their clients to interfere in the process: that is because neither party actually had solicitors on the record at this time. Nor – given that it was not their documentation – would it have been appropriate to entrust this task to the Applicants’ solicitors. In my judgment, a likely outcome would have been to instruct third-party solicitors to undertake a privilege, self-incrimination and relevance review. I strongly suspect that the outcome of such a review would have been to disclose the material which has been used to join the Applicants. So there is to my mind no necessary injustice in the Applicants being joined.

Secondly, the Applicants do not know the composition of the Search Order Material, still less the composition of the Searched Material. They know the Searched Material comprises some 100,000 documents, and they know what some of those documents are – because these documents have been deployed by the Company in the manner described in paragraph 31 above. However, the Applicants simply cannot say what (if any) privileged, incriminatory or confidential material the Company actually holds as part of the Searched Material.

Thirdly, Mr Butler, QC made the point that it is rare for a court in this jurisdiction to strike out a statement of case because it, or the claim it articulates, is based upon evidence improperly obtained. (Footnote: ⁶⁵) There is force in this submission: I would – and should – be reluctant to strike out what would otherwise be a perfectly good claim because the evidence on which it rests has been obtained in some way improperly.

The Company will have to provide, in short order, a comprehensive list of the documents comprising the Searched Material.

The Company will hand over all of the imaged files – that is, all of the Search Order Material – to a third-party firm of solicitors, who will carry out the process I described in paragraph 78(1) above, although it seems to me that instead of searching for Listed Items, the exercise that should be conducted is as follows:

The Company must also explain, in detail (but without invading any privilege that may exist) what use it has made of the Search Material in terms of approaches to third parties.

Until this process is complete, the Proceedings will be stayed in all other respects, and the Company will be enjoined from deploying the Search Order Material and/or the Searched Material in any way.

or should be made and – if made – whether it should succeed. However, I should be clear that nothing in this Judgment precludes the making of such an application by the Applicants, if so advised.

The committal proceedings commenced (or attempted to be commenced) by the Company, as described in paragraphs 31(1) and 31(3) above.

The question of security for costs.

Company, to commit Mr Simons and Mr O’Boyle. I nevertheless raised the matter with Mr Butler, QC, who contended that it remained in the public interest that the prospect of committal continue both as against Mr Simons and Mr O’Boyle. I am not persuaded that that is the case, for the following (related) reasons:

Committal for contempt of court is a public remedy often brought, not by a public officer like the Attorney-General, but by the counterparty in other litgation against the alleged contemnor. In other words, a party to previous litigation then separately brings committal proceedings. Inevitably the motivations for such a course – which is rarely inexpensive – may have little to do with the public interest. For this reason, the courts tread carefully when giving a private person permission to pursue committal proceedings. (Footnote: ⁶⁶)

Here, I am very conscious that permission to proceed against Mr Simons has already been given; and that the question of permission to proceed against Mr O’Boyle has been “parked” until the Proceedings have concluded. In these circumstances, it is right that I should be most careful not to intervene in matters that have already been the subject of judicial consideration, unless new factors, not before the court previously, have come to my attention and are material to these matters.

In the present case, the new factor, which I consider to be material, is the fact that the Company is in clear and material breach of the Search Order. That has resulted in the Company having material that it should not have. I have already commented on the fact that English law does not have a particularly strong exclusionary rule when it comes to evidence improperly obtained. I have taken that rule into account

In my judgment, the proceedings against Mr O’Boyle ought to be stopped, in their tracks, now. I discern a regrettable over-enthusiasm in the Company’s pursuit of committal proceedings against Mr O’Boyle, which is evidenced both by the aggressive nature in which such proceedings have been threatened, the fact that the

“letter before action” has been sent, not merely to Mr Boyle, but to third-parties, and the fact that it was attempted to gain permission to bring committal proceedings whilst the Proceedings (which involve Mr O’Boyle and traverse the same subjectmatter) were on-going. His Honour Judge Keyser, QC was – if I may respectfully say so – entirely right in pushing off the application to commit Mr O’Boyle until the trial of the Proceedings had concluded. However, the present factors militate strongly in favour of ensuring that the threat of committal proceedings do not continue to hang over Mr O’Boyle’s head.

The same, I consider to be true of the proceedings against Mr Simons, for which permission to proceed has been obtained, but where the Company has failed to take matters further. Although, as I have noted, Grounds 1 and 2 against Mr Simons do not depend upon the Search Order Material, Ground 3 almost certainly does. (Footnote: ⁷⁰) Equally, it seems to me that if it is against the public interest to proceed against Mr O’Boyle, the same is true of Mr Simons, particularly given the premise of the

The permission that has been given to the Company to proceed against Mr Simons for committal (but which has not yet been exercised) is revoked.

It is satisfied, having regard to all the circumstances of the case, that it is just to make such an order; (Footnote: ⁷¹) and

The claimant is a company or other body (whether incorporated inside or outside Great Britain) and there is reason to believe that the claimant will be unable to pay the defendant’s costs if ordered to do so. (Footnote: ⁷²)

First, it was contended that this was one of those cases where the conduct of Mr O’Boyle (and the companies in which he is involved, notably G2A and Obcon) should be taken into account as a factor pointing against the granting of security.

Secondly, it was contended that an award of security for costs would stifle the Company’s claim. This was because the amount of the security sought by the Applicants was in the region of £1,000,000, representing their total anticipated costs of defending the claims against them. The Company submitted that it would not be able to pay costs in this amount, and that the Proceedings would, if such an order were made, be stifled.

cost exposure. That, however, is precisely the matter in dispute and I cannot determine this (highly contentious) matter against the Applicants. As I have noted, the Company’s lawyers have labelled this contention as “beyond any doubt”. (Footnote: ⁷⁶) I do not accept this: it seems to me that the point is arguable: but I am not prepared to say (at this stage at least) that the point has any more weight than that.

The Company provided me with some evidence regarding the Company’s financial affairs, notably the evidence of Mr Hitchcock (a solicitor retained by the Company) and the evidence of Mr Steve Meredith, the managing director of the Company.

The most important document is the annual report of the Company for the year ended 31 March 2018. This report is dated 21 December 2018 and it represents the most recent reliable statement of the Company’s financial position. It is not a very recent report, and I infer that the annual report of the Company for the year ended 31 March 2019 must be in fairly advanced draft, given that I heard this application on 28 and 29 November 2019. However, no draft annual report, showing figures for the year ended 31 March 2019 was produced to me.

The report for the year ended 31 March 2018 shows:

for the Applicants’ costs. Indeed, I note that the Company is paying its solicitors a monthly retainer of £25,000.

There has been a most serious breach of the Search Order by the Company and those instructed by it: see Section D above.

Although not the subject of the Search Order, the Applicants are entitled to raise these breaches with the court, for the reasons I give in Section E above.

I do not consider that it appropriate, as matters stand, for the Company’s Amended Particulars of Claim to be struck out, either in whole or in part. However, I consider that that question may have to be revisited after the steps that I habe described in paragraph 80 above have been completed. I do consider, however, that certain steps to remedy – or, perhaps more accurately, ameliorate – the breaches of the Search Order that have occurred need to be taken. These involve:

O’Boyle be adjourned until after the Proceedings had concluded. That application will now not take place, by reason of this Judgment. However, I have been asked to determine who should bear the costs of this application. In my judgment, the Company should bear these costs, because it should have appreciated that committal proceedings against Mr O’Boyle constituted separate proceedings, such that any use of the Searched Material would require the consent of the court. It seems to me that the failure to draw this to the Judge’s attention was principally that of the Company, and that this would have made a material difference to the outcome of the hearing.