AB v Barristers Benevolent Association Ltd (Rev 1)

The Barristers Benevolent Association Ltd (“BBA”) provides support to barristers in many different circumstances, including by way of loans. The claimant is a barrister who sought a loan from the BBA about six or seven years ago. On 5 December 2011 it was brought to her attention that confidential correspondence between herself and the BBA was available on the internet. She conducted a search through Google and found the information herself. Understandably, she was very upset by this.

On 6 and 7 December 2011 the judge on out of hours duty granted an injunction, without notice to the BBA, as set out below. The injunction was in a form submitted to him by the claimant, who was at that time acting as a litigant in person. The form of injunction contained a prohibition on disclosing the existence of the proceedings. It was an error to include this provision. On 8 December the BBA submitted to the same judge that the order was too wide and he varied the order. He ordered a return date of 13 December, when the matter came before me. By that time the claimant had instructed Ms Mansoori.

In the light of the information then available Ms Mansoori did not ask for the injunction to be continued, and it was discharged. It was discharged because an injunction against the BBA was unnecessary. There was no dispute that the documents in question contained confidential information, and that its confidentiality should be preserved. The claimant and the BBA are in agreement upon that, as is clearly correct.

If Ms Mansoori had not adopted that course, the BBA would have applied to discharge the injunction on a number of grounds. In the event I did not have to rule upon any of those grounds, even for the purposes of making an order for costs. The parties agreed the order for costs. My account of events set out below must be read with that qualification in mind.

All that Ms Mansoori asked for on 13 December was anonymity for the claimant. I granted anonymity for her. The BBA did not seek anonymity. I considered the principles in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645. Since I was about to prepare this judgment explaining what had happened, it was necessary to grant anonymity to the claimant. Had I not done so, then this judgment would have revealed confidential information.

On 5 December the claimant had contacted the BBA. The official she spoke to was already aware of the problem, which was as serious for the BBA as it was for the Claimant. There were two conversations between the Claimant and an official of the BBA on 5 December, and a third on 6 December. The BBA assured the Claimant that the BBA’s IT consultant was addressing the issue as a matter of urgency. It is clear that the telephone conversations between the Claimant and the official were not easy ones. The claimant was very upset and frustrated. On 5 December she also spoke to Mr Mowschenson QC who is the Chairman of the BBA, and he too told her that BBA was doing all it could.

The information remained accessible on Google throughout 6 December. The Claimant was not satisfied with the explanations for this. She had been referred to the IT consultant who was dealing with the problem, but was not satisfied with his responses. They exchanged numerous text messages during 6 December. The IT consultant said he was doing everything he could. He explained that the problem lay with Google, and that it might take some time for all their servers to be synchronised so as to remove the information from the caches. He explained he had been calling Google offices all over the world to try to get action, without success. As early as 13.02 she wrote to him of the possibility of her obtaining an injunction.

Sometime after 6pm on 6 December she applied by telephone to the judge on duty out of hours for an injunction against the BBA. Although she is a barrister, she has no experience of obtaining interim injunctions in civil proceedings relating to confidential information. The procedure for obtaining such injunctions is set out in Practice Direction 25A and in the “Practice Guidance: Interim Non Disclosure Orders” issued by the Master of the Rolls on 1 August 2011. Unfortunately the claimant does not appear to have read either of these and she certainly did not make her application in accordance with them.

Practice Direction PD25A at paras 4.3 and 4.4 requires that applications made before the issue of a claim form (as this one was) must be made in accordance with the provisions of para 4.3, and that includes:

“(3)

Except in cases where secrecy is essential, the applicant should take steps to notify the respondent informally of the application”.

It was not essential to keep the application secret from the BBA, or, for that matter, from the IT consultant. Moreover, since the Claimant had been in frequent communication with both the BBA and the IT consultant during that day, it is hard to see why the Claimant should not have notified both of them of the precise time at which she was going to make the application. If she had given to them, and to the judge, the time and contact details, he could have spoken to them while she made her application. This is commonly done in out of hours applications, either in a conference call, or in sequential telephone calls, in which the judge speaks first to one party and then to the other. The fact that the claimant had told the IT consultant in general terms that she was proposing to apply for an injunction does not satisfy the requirements of the Practice Direction. I do not know why this did not happen, and so attribute no blame to anyone.

An applicant is also required to support applications for an injunction by a witness statement, and to keep a note of everything that is said by the applicant to the judge, and by the judge to the applicant, during the course of the application. In extremely urgent cases there may not be time to put down in writing the information to be communicated to the judge, but if that is not done it must be recorded in writing immediately afterwards. These documents must be provided forthwith to the Respondent when the Respondent is notified of the order.

The claimant did prepare a note on 7 December 2011. The only material information that she recorded about what she told the judge was:

“1 … I sought an urgent injunction against the BBA who have unlawfully published on the internet personal correspondence to me regarding a confidential request …

2.

… that she was a practising barrister but was acting as a private individual/litigant in person…

3.

… I had been in contact with the BBAL and its IT person … and they had been unable to completely remove the offending data. I explained that [he] had informed me that the issue was removing the date from Google’s cache history or memory. I also informed the Learned Judge that I had contacted Google (via its online website) in order to get the material taken down but without success. I said that Google’s online FAQs state that they will not remove material from the cache but rely on the webmaster who published the data to do so or provide authority for its removal. However, Google state that they will honour orders of the court”.

If that is all she told him, she did not tell him that when she had been in touch with both the BBA and the IT consultant the previous day, and on that day, on numerous occasions, they had told her they were doing their best. If I had had to make any findings of fact or rulings, it is likely that there would have been some investigation of whether the note really does record all the material information that was given to the judge. My first impression is that it is unlikely that it does. Ms Mansoori made clear that if she had had to justify the course that the claimant had adopted, she would have submitted that an injunction was necessary, or at least helpful, in getting Google to remove the information from the caches.

On 6 December, after she had spoken to the judge, the claimant sent to him an e-mail at 18.33. It had attached to it a draft of the order. At 18.49 the Judge returned by e-mail confirming that he had made the order at 18.46.

The order was in the form of a mandatory injunction. It included in para 5 an unqualified requirement that the BBA remove three private letters (which are identified) from the internet, “including from the ‘Cache’ of any online service provider”. A Confidential Schedule included a list of four separate URL locations, together with other confidential information. Para 6 read:

“The respondent must not use and must not publish or communicate or disclose to any other person (other than by way of disclosure to legal advisers instructed in relation to these proceedings), all or any part of the information or purported information concerning the matter detailed above or the existence of these proceedings or the Applicant’s interest in these proceedings or any part of the documents described in the Confidential Schedule at the end of this order or any information or purported information derived solely from any of these documents”.

The following morning, 7 December, after a further e-mail exchange the Judge amended the form of order before it had been sealed to include further correspondence which the claimant had become aware of. He e-mailed it to the claimant at 8.58 am. In her note the claimant states that by fax and e-mail she served the injunction on the BBA, the IT consultant and Google USA and UK on the fax numbers she was given by the IT consultant.

On 8 December, the BBA itself made an application to the Judge. He discharged paragraphs 5 and 6 of the order that he had made. He ordered the claimant to serve any evidence in support of her application notice by 5pm on 8 December. The BBA also gave to the Judge undertakings, which were qualified by reference to that material over which it exercised control, and expressed in terms of best endeavours in so far as they concerned the Google Cache. The undertaking also permitted disclosure of the existence of the proceedings to the IT consultant, and to other bodies to whom information needed to be notified for the purpose of effecting the removal from public access of the documents which the claimant was seeking to protect. The BBA and the IT consultant apologised to the court for the breaches of the para 6 of that order described below.

What had happened to give rise to this affair is explained by the IT consultant in a witness statement dated 12 December 2011. The main events are as follows.

In 2005 or 2006 his firm had been asked by the BBA to assist in removing data from one hard drive to a new one. The process was carried out by copying data to a temporary file, which should have been deleted, but was not. It was retained inadvertently on a server. At the time that did no harm, because the server was not publicly available. However a technical change by the firm’s broadband supplier O2 led to the server becoming available to Google to pick up the data without the firm knowing that that was happening.

On Friday 2 December 2011 the BBA became aware that the information was available through Google. The BBA immediately contacted the IT consultant and asked him to deal with it as a matter of extreme urgency. The IT consultant’s firm identified what had happened. He removed the source of information from its server and disconnected the server from the internet. All the data that had been inadvertently stored was deleted. He then contacted Google via the webmaster tools requesting the removal of the material from the Google cache. This is where the problem arose.

On 2 December 2011 the IT consultant also e-mailed the firm’s broadband provider, 02 (Telephonica UK Limited), asking for the information derived from the BBA to be removed.

On 5 and 6 December the IT consultant made numerous further attempts to contact Google to have the information removed from the caches as a matter of urgency. According to his evidence, and the e-mails that he has exhibited, he could not have expressed himself more forcefully, or more urgently, but he received no prompt response from Google. It was not until 10 pm on Tuesday 6 December that he found some files had been removed by Google.

Although the IT consultant was not a defendant to the action, or respondent to the application, the claimant faxed a copy of the judge’s order to him at 19.12 hours on 6 December. He sent a scanned copy to Google at 20.23 hrs. The claimant spoke to him again at 21.18 and 22.35. He told her that the action that Google had taken was in response to the instructions he had already given, and not in response to the judge’s order.

On the morning of 7 December he discovered that there was still information that had not been removed from the caches. He contacted Google again on more than one occasion. On 7 December 2011 he wrote again to 02. He repeated his request, referring to the injunction, and providing a copy, together with the confidential schedule which identified the URLs. But the legal counsel for 02 immediately pointed out that the terms of the order meant that the Confidential Schedule should not be disclosed to third parties. So she declined to act on it until she received the consent of the court.

He had not understood that the terms of the order precluded him from sending copies of it as he had done. It was not until Friday 9 December that it appeared to him that Google had fully complied with his request to remove the information in its entirety.

In preparation for the hearing before me on 13 December, Ms Mansoori drafted a form of injunction which was closely based on the model form in accordance with the Practice Guidance issued by the Master of the Rolls on 1 August 2011. However, when she had seen the witness statement of the IT consultant of 12 December she appreciated that the form of the order was neither necessary nor appropriate.

On the basis that all that was sought on 13 December was anonymity, Ms Reid confined her submissions to reminding me of the obligations for court in relation to derogations from open justice.

I have prepared this judgment in accordance with what is now the usual practice in such case. It may also serve the purpose of reminding practitioners of the importance of giving notice, however late, of any application by telephone to the Judge on duty out of hours. In these days of mobile phones and emails it is almost always possible to do this. And it is equally almost always possible for the Judge to communicate with the intended defendant or respondent, either in a three way telephone call, or by a series of calls, or exchanges of e-mail. Cases where no notice is required for reasons given in PD 25A para 4.3(3) are very rare indeed. I am confident that, if that had been done, the BBA would have ensured that the proper form of order was put before the judge, if he had thought it appropriate to make any order against BBA.

This judgment may also alert practitioners to the possibility that information stored on a cache by Google may take several days to have removed.