IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
INTERIM APPLICATIONS COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE NICKLIN
Between :
Faye Clementina Ho | Applicant |
- and – | |
Adam Bragg | Respondent |
Richard Walford (instructed by Farrer & Co) for the Applicant
The Respondent did not attend and was not represented
Hearing date: 7 February 2018
Judgment Approved
The Honourable Mr Justice Nicklin :
At 2pm yesterday, I heard an urgent application for an interim injunction. The application was made without formal notice to the Respondent, but an email was sent to him just after midday yesterday. I do not know whether he received that email, but as the Respondent lives in the North West of England, there would be little practically that he could do in terms of arranging representation.
I granted an injunction and ordered the application to be listed for further consideration on 14 February 2018 (“the return day”). I am giving this written judgment explaining my reasons because the application sought (and the order included) an interim non-disclosure order. In such cases, it can sometimes prove important that there is an accurate (and accessible) record of the Court’s decision and the reasons for it.
The application was heard in open court and no orders were sought by the Applicant that would derogate from the principles of open justice. The Claim Form has not yet been issued, but, included within the usual undertakings given to the Court, the Applicant has undertaken to issue and serve of the Claim Form.
At the hearing I was provided with Affidavits from the Applicant and her solicitor. I will now set out the basic facts that emerge from that evidence. Before doing so, it is right that I record that this account comes from only the Applicant’s evidence. The Respondent has not had an opportunity to answer this evidence. The following facts therefore represent, at this stage, only allegations made by the Applicant against the Respondent. The Court is not, at this stage, making any findings. Such findings could only be made later in the proceedings after the Respondent has had an opportunity to advance such evidence in answer as he wishes. The Court is deciding whether the Applicant has demonstrated a case on the facts sufficient for the grant of interim relief at least until the return day. At that hearing, the Respondent will have an opportunity to put before the Court any evidence upon which he wishes to rely.
The Applicant and the Respondent used to be in a relationship. That relationship ended, I understand, sometime last year.
In her Affidavit, the Applicant states that on or around 21 November 2017, the Respondent removed a large number of her documents contained in various files from her home (“the Documents”). The Respondent, at that stage, still had a key to gain access. A description of the Documents is given in the evidence. The Applicant says that the Documents are private and confidential; some contain sensitive information. Given the apparent delay between then and now, I asked when the Applicant had become aware of that. Mr Walford for the Applicant told me that she had only discovered very recently that this had happened because of the matters I shall now explain.
Last week, on 1 February 2018, the Respondent contacted the Applicant. He made a demand for a substantial sum of money and told the Applicant that, if he did not receive the sum, he would, on 8 February 2018, disclose documents to third parties to the detriment of the Applicant. The Applicant contends that such a demand was an effort to blackmail her. She reported the matter to the police. I have no information about what, if any, contact the police have had with the Respondent.
On Friday 2 February 2018, the Applicant’s solicitors wrote to the Respondent to demand, amongst other things, delivery up of the Documents. There has been no response to that letter, but there is no indication whether the Respondent has received it. A deadline was set for the Respondent to deliver up the Documents by midday on 7 February 2018. In default, the Applicant’s solicitors said that they would apply to the Court for an interim injunction.
By the time of the hearing, there had been no response to that letter.
The Applicant has therefore applied on an urgent basis for an injunction. Originally, the Applicant had concentrated her efforts on an order for delivery up, but the Applicant’s legal advisers widened the relief sought to include an order preventing the disclosure of information contained in the Documents. That was no doubt a recognition that physical delivery up of the Documents would not necessarily be a complete bar to disclosure of their contents. The draft order that was put before the Court included therefore an interim non-disclosure order. However, the draft was not in accordance with the Practice Guidance for such order (Practice Guidance: Interim Non-Disclosure Orders [2012] WLR 1003.
Once this was drawn to Mr Walford’s attention, he modified the terms of the order that he sought to reflect the Guidance.
An interim non-disclosure order is “relief which, if granted, might affect the exercise of the Convention right to freedom of expression” and so the Court must consider the terms of s.12 Human Rights Act 1998 before deciding whether any order should be made and if so in what terms.
Notice to the Respondent
Section 12(2) provides:
If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied—
that the applicant has taken all practicable steps to notify the respondent; or
that there are compelling reasons why the respondent should not be notified.
Here, the Applicant’s solicitors sent an email to the Respondent at 12.06 yesterday. Mr Walford submits that he has therefore been notified. However, Mr Walford relies additionally upon s.12(2)(b). He contends that given the element of blackmail in this case, represents ‘compelling reasons’ justifying the court granting relief even if s.12(2)(a) was not satisfied.
I am satisfied that the blackmail element that appears clearly on the evidence of the Applicant does provide a compelling reason why, if the respondent has not, in fact, been notified, relief can be granted.
Prospects of Success
The application for the interim injunction for delivery up would fall to be assessed in accordance with the familiar principles from American Cyanamid Co Ltd -v- Ethicon Ltd [1975] AC 396. However, s.12(3) mandates a higher threshold for interim non-disclosure orders. It provides:
“No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.”
“Likely” in this context has been held to mean “more likely than not”: Cream Holdings Ltd -v- Banerjee [2005] 1 AC 253.
On the evidence, I am satisfied that the Applicant would be likely to establish, at trial, that the threatened publication by the Respondent of the Documents (or information contained therein) would not be allowed. The reasons for this are: (1) the confidential and private nature of the Documents; (2) the absence of any apparent justification for the threatened publication; and (3) the blackmail element. At this stage, I cannot easily imagine a public interest justification for the threatened publication, but the Respondent will have an opportunity to raise this or any other defence at the hearing on the return day. At this stage, I am satisfied on the evidence that the Applicant is entitled to the relief sought until at least that point.
Terms of the Order
As I have indicated, modifications were made to the terms of the order sought by the Applicant during the hearing to ensure, amongst other things, compliance with the Practice Guidance. I should mention two specific matters:
In relation to the order for delivery up, there was a tension, that Mr Walford recognised, between ordering the immediate return of the Documents to the Applicant’s solicitors and allowing the Respondent, until the return day, to retain control of them. In favour of the former was the apparent strength of the proprietary claim and the legitimate interest of the Applicant in seeking to prevent any disclosure of the Documents or their contents. Against that, requiring the Respondent to deliver up the Documents would potentially seriously hamper his ability – if he wishes and is able to – to advance on the return day a defence or answer to the Applicant’s claim. A compromise has been reached. I have ordered delivery up of the Documents but required the Applicant’s solicitors to copy them and to provide the copies to the Respondent upon his written irrevocable undertaking that he will use these copies only for the purposes of the proceedings. He will, of course, remain subject to the non-disclosure order until the return day. On the return day, the Court can then consider what should happen to these copies.
I have made orders requiring the Respondent to provide information about the Documents and, in particular, whether there has already been any disclosure of them or their contents to any third party.
I am satisfied that the orders made in the balance of the injunction, which follows the model order in the Practice Guidance, are necessary and should be made pending the return day.