ORB a.r.l.; & Ors v Fiddler

In section C2 below I deal with the content of the 14 December Fiddler order. In that regard I mention some of the points of detail in the order and the reasons for them. As to the 14 December 2015 Fiddler order as a whole, I describe the reasons for making that order in section C3.

The 14 December Fiddler order was made in private. I set out below my reasons for concluding that this was an appropriate course. The order began with a penal notice. In addition to warning of the danger of contempt of court, the penal notice advised Mr Fiddler of the privilege against self incrimination. I describe in the 14 December Oscar assistance judgment contentions to the effect that self incrimination would not arise. I express no view on whether those contentions are right. It seemed to me desirable that advice as to the privilege against self incrimination should be included so that Mr Fiddler was informed that there is such a privilege and could, if appropriate, seek legal assistance in that regard.

Paragraph 1 of the order noted, among other things, that I had accepted undertakings in schedules A and B. The undertakings in schedule A were given by Mr Robson as Independent Solicitor. Those in schedule B were given by the claimants in the present claim, namely the claimants in the main action with the addition of Pro Vinci. As explained in the claim form, Pro Vinci asserted that it had been acting in its own right as well as on behalf of the claimants in the main action in reaching an agreement with Oscar, and that it was entitled to claim against Oscar both for breach of contract and for deceit. The undertakings in schedules A and B, taken as a whole, appeared to me to give appropriate protection to Mr Fiddler.

Paragraphs 1.3 and 2 of the order recorded that I had considered section 12 of the Human Rights Act 1998 and that I had identified reasons why notice should not be given to Mr Fiddler. I deal with these matters, and the “in private” status of the order, generally below.

Provision for a further hearing on 21 December 2015 (“the Return Date”) was made in paragraph 3 of the order. Paragraph 4 dealt with access to court documents: the restrictions in that paragraph are dealt with in the general discussion of the “in private” status of the order below.

The order contained injunctions in paragraphs 5 to 7 and 10 and 11. I shall refer to paragraphs 5 to 7 as “the primary injunctions”. Paragraph 5 required Mr Fiddler to disclose his knowledge regarding the identity of, and all methods which might reasonably be considered to enable communication to be made with, Oscar and Oscar’s father. Paragraph 6 required Mr Fiddler to retain and preserve the video recording referred to in Irving 3 (“the Video Recording”), Metadata associated with the recording (“the Metadata”), and the mobile telephone which, according to Irving 3, was used to play the Video Recording, including relevant data storage devices (collectively “the Property”). The Metadata was specified in schedule D to the order, and seemed to me to be data which could properly be required and which had been described sufficiently clearly to identify what was required. Paragraph 7 of the order required supply by Mr Fiddler to the Independent Solicitor of the Video Recording or access to it, the Metadata, and necessary information, codes and passwords in order to access the Video Recording. This would then enable the Independent Solicitor to provide this material to the claimants’ solicitors.

After setting out the primary injunctions in paragraphs 5 to 7, paragraph 8 of the order provided for the Independent Solicitor to send a notification (“the Notification”) stating whether paragraph 7 had been complied with in full. If the Notification stated that paragraph 7 had been complied with in full, then the additional injunctions in paragraphs 10 and 11 would not apply. However, as stated in paragraph 9 of the order, if the Notification did not state that paragraph 7 had been complied with in full, then the injunctions in paragraphs 10 and 11 (which I shall call “the secondary injunctions”) would have effect, as would the authorisation contained in paragraph 12.

Under paragraph 8 of the order the Notification was to be given at 7:30pm on 17 December 2015. If it did not state that paragraph 7 had been complied with in full, then under paragraph 10, subject to paragraph 11, the defendant was required by 12:30pm on Friday 18 December 2015 to deliver to the Independent Solicitor the Property, necessary information, codes and passwords, and power supply cables and cognate devices to render the Property functional and operational. Paragraph 11 provided that, by the same deadline, if Mr Fiddler asserted that he was unable to comply with paragraphs 7 or 10, then he should email the Independent Solicitor for onward transmission to the claimants’ solicitors an affidavit stating the reason(s) and identifying the steps he had taken to comply with paragraph 6 of the order.

What was permitted to happen upon receipt of the Property and other items was set out in paragraph 12 of the order. This paragraph gave authority to the Independent Solicitor to inspect the Property for the purposes only of locating on the Property the Video Recording and the Metadata, to view the Video Recording and the Metadata, to copy the Video Recording and the Metadata and to do all such things as were incidental in that regard. Paragraph 12 also contained provision enabling the Independent Solicitor to seek assistance and to appoint an Independent Forensic Computer Expert. The history of events on that aspect, and my reasons for making provision for such appointment and authorising the Independent Forensic Computer Expert to do the things which the Independent Solicitor was authorised to do, are set out in section E6 of the 14 December Oscar assistance judgment.

Obligations of confidentiality were imposed on Mr Fiddler under paragraph 13 of the order: I deal with these when discussing privacy generally below. Paragraph 14 of the order made it clear that Mr Fiddler was entitled to use the Property in the ordinary way prior to delivery up, should a failure to comply with paragraph 7 render such delivery necessary, provided that such use was consistent with the order. There is a slip in paragraph 14: it refers to “delivering [the Property] to the Claimants” when it should refer to delivery to the Independent Solicitor. This will need correction.

Paragraph 15 of the order made provision for alternative methods of service. In that regard it seemed to me that both CPR 6.15, as regards the claim form, and CPR 6.27, as regards other documents, were relevant. It appeared from Ms Irving’s evidence that the only location at which documents could be physically delivered was an address of a company, and that the status of the company was unclear. In any event, it seemed to me to be important that methods of service most likely to achieve speedy communication with Mr Fiddler should be used. The order accordingly required the claimants to use such methods, while permitting them also to serve at the address of the company.

The remaining provisions concerned the time for filing an acknowledgement of service, for the ability to apply for variation or discharge, for communications with the court, for the claimants to pay the costs of the application, and liberty to apply. These were largely in standard form. Special provision was made for communications with the court to be kept private, for reasons explained in the general observations below about privacy.

The account given of the approach by Mr Fiddler, of what he said, and of what he did, appeared to me credible. In that regard I did not rely on evidence of Dr Smith: I had no such evidence. What I had was direct evidence from Ms Irving. I had been concerned that information relevant to the September 2015 application might have been deliberately withheld. However, as explained in section F2 of the 14 December Oscar assistance judgment, it seemed to me that that it would be wrong to reach that conclusion on the material now before me.

Accordingly on the material before me there is very strong evidence that Oscar has broken an express or implied agreement to supply material which would be accessible, and has knowingly made false representations as to his intention if the agreement were to be made and as to ease of accessibility of the material when the cigarette lighter and USB stick were handed over. There is also very strong evidence that Mr Fiddler has been involved in an attempt by Oscar to communicate with Dr Smith in that regard. Thus Mr Fiddler appears, wittingly or unwittingly, to have involved himself in Oscar’s wrongdoing. There is a strong public interest in allowing the claimants to vindicate their legal rights. I have no information to suggest that the information could be obtained from another source. There is ground for thinking that Mr Fiddler knew or ought to have known that he was facilitating arguable wrongdoing. He may be a joint wrongdoer, but if so that strengthens the case for an order: see X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 at 54, per Lord Lowry. There is no reason to think that the order might reveal the names of innocent persons. As to Oscar’s right to claim confidentiality as to his identity and how he can be contacted, Oscar’s privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and his rights and freedoms under the EU data protection regime, in my view they are clearly outweighed by the considerations set out above.

I had also had concerns as to whether the order proposed in the November application would have practical utility. Their origin, in part, lay in remarks of Inspector Ellwood recorded at paragraphs [7] to [10] of the attendance note set out in section E4.3 of the 14 December Oscar assistance judgment. Ms Irving’s account in section IV of Irving 5, however, satisfied me that both DC Roberts and Inspector Ellwood consider that an order of the kind proposed could be beneficial. In the light of this, of what is said in section VII of Irving 5, of the express provision made in CPR 25, and of the considerations identified by Lord Kerr in Rugby Football Union, I consider that it is in the interests of justice to require that Mr Fiddler comply with the primary injunctions, and that in the circumstances described in the order it is in the interests of justice to require him to comply with the secondary injunctions.

The order was made in private and without notice to Mr Fiddler, it requires him to observe obligations of confidentiality, and it contains provisions designed to maintain privacy and confidentiality. They include restrictions on access to court documents. At the present stage, after taking full account of section 12 of the Human Rights Act 1998, I consider that these provisions are necessary until the return date. Elementary principles of justice require that Mr Fiddler be given the background to the order, and thus be informed of the September 2015 order, what led to it, and what has taken place pursuant to it. The account given by Ms Irving of communications with Mr Fiddler causes concern that prior notice of the order would give rise to a strong risk that he would both destroy evidence and make use of what he has learnt to warn Oscar and possibly others of what has happened thus far and may happen in the future. Notice to Mr Fiddler, and wider publicity, at the present stage would for that reason alone defeat the object of the order.

This judgment, and the 14 December Oscar assistance judgment, must be provided to Mr Fiddler without delay. It remains private and confidential until 6pm on the return date. If the claimants conclude that the September order should cease to have “in private” status after 21 December 2015, then they may also consider that obligations of privacy and confidentiality under the 14 December Fiddler order should cease at the same time. If, however, the claimants consider that there may be circumstances in which this judgement, and other matters dealt with by the 14 December Fiddler order should continue to attract obligations of privacy and confidentiality, then they must issue an application notice for that purpose and serve it on Mr Fiddler in sufficient time to enable him to consider it prior to the return date. This will also be the case in relation to any other variation of the order which the claimants intend to propose on the return date.