![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Commercial Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just Β£5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> ORB A.R.L & Anor v Fiddler & Anor [2016] EWHC 361 (Comm) (26 February 2016) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2016/361.html Cite as: [2016] EWHC 361 (Comm) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Fetter Lane, London, EC4A 1NL |
||
B e f o r e :
____________________
(1) ORB A.R.L (2) ROGER JAMES TAYLOR (3) NICHOLAS THOMAS (4) PRO VINCI LIMITED |
Claimants |
|
- and - |
||
(1) STEPHEN RICHARD FIDDLER (2) DOMINIC ANCIANO |
Defendants |
____________________
Mr Patrick Lawrence QC and Mr Shail Patel (instructed by Enyo Law LLP) for the
2nd Defendant
Hearing date: 18 February 2016
____________________
Crown Copyright ©
The Hon. Mr Justice Popplewell :
Introduction
Parties
The events giving rise to the Norwich Pharmacal Application
(1) On 3 September 2015 Ms Irving was approached by a person using the pseudonym "Oscar" who wanted to speak to Dr Smith. At meetings on 7 and 10 September 2015 between Oscar and Dr Smith alone, Oscar explained that he was a computer hacker and that he had been offered £50,000 by an anonymous agent to perform a file drop of child pornography onto Dr Smith's or Pro Vinci's computer systems. Oscar said that he had evidence that the source of the instruction was an IP address associated with a boat in a harbour in Palma, Mallorca, and that he needed £30,000 to buy specialist equipment to enable him to provide evidence which would trace the source of his instructions. The impression which Oscar gave was that the source of his instructions was connected to Mr Ruhan.
(2) On 14 September 2015 Oscar met Ms Irving and Dr Smith at the Westbury Hotel, together with Mr Upson and Mr Erusalimsky of the Claimant's solicitors, Stewarts Law LLP. At that meeting Oscar was given £30,000 in cash for the purpose of buying equipment he said was necessary in order to trace the source of his instructions and provide evidence thereof.
(1) At a further meeting with Oscar at Pro Vinci's offices on 1 October 2015, at which Ms Irving and representatives of Stewarts Law LLP were present, Oscar handed over three memory sticks said to include the child pornography. The Claimants say that on that occasion Oscar was paid a further £100,000 in cash, which he had said he required in order to be able to produce the evidence of the source of his instructions. He said the material on the data sticks was encrypted; he declined to provide the password but said that any expert worth his salt would be able to get past the encryption.
(2) Matters then went quiet and the Claimants lost touch with Oscar.
(3) The next the Claimants heard was a telephone call from Mr Fiddler to Ms Irving on 22 November 2015 seeking to speak to Dr Smith about Oscar. A meeting was arranged, which took place on 24 November 2015, initially at Starbucks and then at Pro Vinci's offices, attended by Mr Fiddler, Dr Smith and Ms Irving. At that meeting Mr Fiddler played to them a video on his telephone, which portrayed Oscar, apparently reading a script from prepared cards, making the allegation that contrary to his earlier assertions, in fact he had been engaged by Dr Smith to file-drop child pornography on Dr Smith's/Pro Vinci's servers and to make it look as though he had been instructed to do so by Mr Ruhan.
The Norwich Pharmacal Application
(1) Mr Mason was approached by Mr Fiddler in late July/early August 2015. The approach came about because a longstanding friend said there was someone who wanted to make contact with him; Mr Fiddler was known to his friend's father "as he and Mr Fiddler operated in the criminal world". At a meeting at Mr Mason's house in Chester in late July/August, Mr Fiddler asked Mr Mason to carry out a job for his "mate" (who was not named) which involved hacking into three email accounts related to Dr Smith. Mr Fiddler gave him the email addresses of Dr Smith, Ms Stickler and Ms Irving at Pro Vinci. Mr Fiddler showed Mr Mason press reports on the Internet relating to the litigation between Orb and Mr Ruhan, identifying that there were hundreds of millions of pounds at stake. Mr Fiddler explained the task by saying that Dr Smith had an email proving, that he, Dr Smith, was corrupt; and that if Mr Fiddler's mate could get hold of that email then "he could 'bury' Gerald Smith". Mr Fiddler suggested that there was a 7-digit sum of money which might be obtainable for Mr Mason if he succeeded.
(2) Despite his reluctance to get involved, Mr Mason was pressed in phone calls by Mr Fiddler during August 2015 and at some point in August received a long text message from Mr Fiddler telling him off because he had not done what he had promised to.
(3) At that point, Mr Mason himself came up with the idea that he should contact Dr Smith and Pro Vinci, explain that he had been hired to hack into their systems with a view thereby to gaining their trust and thus gain voluntary access to the Pro Vinci server so as to be able to download all the emails and find the incriminating email. He discussed this plan with Mr Fiddler who, having apparently discussed the idea with someone else whom Mr Mason assumed to be his "mate", agreed with such plan. Mr Fiddler and Mr Mason met over the following days in August to discuss what was to be said to Dr Smith. The idea that it should be suggested that Mr Mason had been asked to file-drop child pornography onto the server was Mr Fiddler's. That was what gave rise to the approach to Dr Smith on 3 September 2015 and the meetings on 7, 10 and 14 September 2015. Mr Mason was driven to and from the meeting on 14 September 2015 by an associate of Mr Fiddler's.
(4) Over the following weeks Mr Fiddler and Mr Mason discussed how to make the evidence which was to be provided to the Claimants seem convincing. Mr Mason produced the data sticks containing the evidence of the alleged file-drop. He pretended to Mr Fiddler that there was child pornography on them, but because he found the idea of obtaining it so repulsive he made sure that they contained no such material. Accordingly the data sticks he handed over at the meeting with the Claimants on 1 October 2015 at Pro Vinci's offices did not in fact contain child pornography.
(5) Mr Mason said that at that point he was sickened by the whole affair and wanted to get out of it and disappear, but was constantly being pressed by Mr Fiddler.
(6) Until October 2015, Mr Mason had assumed, for reasons which he could not clearly recall, that Mr Fiddler's "mate" was a man called Harry Harvey. However, as a result of events in October it became clear to him that Harry Harvey was not the "mate" who had initiated matters.
(7) Mr Mason was approached again by Mr Fiddler on 19 November 2015, whom he met at a Costa Coffee in Chester. Mr Fiddler seemed determined to obtain the large sum of money available and suggested that they should "spin the story" so that it looked as though Dr Smith had initiated the child pornography plot from the outset. He suggested that a video should be made, the purpose of which was to blackmail Dr Smith to bury the story in the video; and that if Dr Smith would pay to stop the revelation of what was in the video, that would be an admission which could be taken to Mr Ruhan to extract money from Mr Ruhan. Accordingly, on that day the video was made at Mr Mason's house with that account of events. After making the video, Mr Mason was told by Mr Fiddler to leave it all up to him.
(8) In the week of 30 November 2015, Mr Fiddler came to Mr Mason's house to say that they would be selling the video to Mr Ruhan. Mr Mason was to speak to Mr Ruhan.
(9) On 10 December 2015, Mr Mason called Mr Ruhan on his mobile and gave the account which was on the video, namely that Dr Smith had engaged him to drop child pornography on his own/Pro Vinci servers and to make it look as though Mr Ruhan was responsible in order to incriminate Mr Ruhan. The matter was left that Mr Fiddler would then get in touch with Mr Ruhan. The following day Mr Mason was told by Mr Fiddler that the latter had met Mr Ruhan, together with an associate of Mr Ruhan's called Dom or Don (this was subsequently identified as Mr Anciano).
(10) On 15 December 2015, Mr Mason and Mr Fiddler had a meeting at Manchester Piccadilly station with Mr Ruhan, Dom (Anciano) and another gentleman (who proved to be a lawyer from Mills & Reeve called Adrian Kwintner). Mr Mason repeated the story in the video. Mr Anciano and Mr Fiddler seemed very friendly. Mr Anciano asked Mr Mason a series of questions about the story in the video in a way that seemed to be testing him out. Mr Anciano also asked Mr Mason to call Miss Irving in order to try to get her to come over to Mr Ruhan's camp. Mr Anciano and Mr Fiddler left to have a discussion; when they returned Mr Ruhan asked if it was all sorted and they said yes.
(11) Following the First Fiddler Order, and agreement that Mr Mason would provide an account to the Claimants, Mr Mason gave an account to Stewarts Law LLP on 21 December 2015 in which he was told by Mr Fiddler to say (falsely) that:
(a) he, Mr Mason, overhead Mr Fiddler talking to Harry Harvey about Mr Ruhan and Dr Smith;
(b) without telling Mr Fiddler, it was he, Mr Mason, alone who had decided to make up the story about child pornography to extract money;
(c) he had obtained Miss Irving's number by subterfuge from Mr Fiddler's phone;
(d) he had contacted Pro Vinci alone;
(e) he had only brought Mr Fiddler in when he was over his head by showing him the video and presenting that story as real;
(f) Mr Fiddler believed the story in the video was real right up to the point when at Manchester Piccadilly station, under Mr Anciano's questioning, he got some of the details wrong. Mr Fiddler then began to have doubts.
(12) Having gone on holiday over the Christmas period to South East Asia and "done a lot of soul searching" he had decided that the only way to end the nightmare episode was to tell the complete truth which was as set out in his affidavit.
"5.4 (1) For the purposes of this Order, "the Scheme" means as follows:
(a) The conduct of Mr Oliver Mason (also known as "Oscar") and [Mr Fiddler] and other unidentified person or persons (possibly including [Mr Anciano]):
(b) during the period from around 1 July 2015 to date;
(c) by which Mr Mason and [Mr Fiddler], acting together and with unknown others (possibly including [Mr Anciano] agreed to do the following things:
(i) In the first instance, for Mr Mason to gain unlawful access (to "hack") into the computer servers of the [Pro Vinci] (in particular into the email accounts of Dr Smith, Ms Stickler and Ms Irving) and to obtain information therefrom, and pursuant to which to make the false representations to [Pro Vinci] and to Dr Smith that:
(1) Mr Mason had been approached by an anonymous agent and offered payment of £50,000 in return for planting child pornography on to the computer servers of the [Pro Vinci]and to make it appear as if the material had been accessed repeatedly;
(2) the source of the approach indicated that it was something to do and/or connected with Mr Andrew Ruhan and had originated from an IP address associated with a yacht in Palma, Mallorca;
(3) in order for Mr Mason to verify that association, Mr Mason would need to purchase specialist equipment at a cost of no less than £30,000;
(4) Mr Mason had possession of the relevant data on two data storage devices, one of which (containing child pornography) in encrypted form; and
(5) Mr Mason would require payment of a sum of £100,000 for provision of the data and documents relating to the matters set out in 5.4(c)(i)(1)-(4) above and for related services.
(ii) In the second instance, to procure an advantage by unlawful means from Dr Smith and/or [Pro Vinci] by making (the false) allegation that Dr Smith had contacted Mr Mason in August 2015 and that he, Dr Smith, wanted to place child pornography on [Pro Vinci's]computer servers and to make it look as if someone else had done so."
"THIS ORDER
1.1 pre-read the evidence referred to in Schedule A to this Order;
1.2 accepted the undertakings set out in Schedules B and C at the end of this Order; and
1.2 considered the provisions of theHuman Rights Act 1998 ("HRA"), section 12.
JOINDER OF SECOND DEFENDANT
8. Mr Dominic Anciano shall be added as a Second Defendant to these proceedings.
INJUNCTION REGARDING THE SECOND DEFENDANT
9. The Second Defendant shall forthwith take all necessary and reasonable steps to retain and preserve:
9.1 any mobile telephone or other communication device or account which he owns or controls and which he has used to communicate with the First Defendant and any third party in relation to the Scheme during the Relevant Period ("the Anciano Telephones"); and
9.2 the last eight (8) months of itemised invoices or other records of communications corresponding to each of those mobile telephones or communication devices ("the Anciano Telephone Records").
10. The Second Defendant shall not later than 5.00pm on Monday, 18 January 2016 (or such later date as the Claimants may agree in writing) deliver to the Independent Solicitor ..Mr Malcolm Robson:
(a) the Anciano Telephones;
(b) all necessary information, codes and passwords that he may require in order to access the Anciano Telephones;
(c) the power supply cables and cognate devices that he may require to render the Anciano Telephones functional and operational; and
(d) the Anciano Telephone Records.
11. The Second Defendant shall no later than 500pm on Friday, 22 January 2016 (or such later date as the Claimants may agree to in writing) provide the Claimants (via the Claimants' solicitors, Stewarts Law LLP with a sworn affidavit that:
11.1 identifies all those persons for whom he was acting in relation to the Scheme and/ or from whom he took instructions and/or with whom he consulted in relation to the Scheme and/or the Unidentified Principal(s) [which were defined as the unknown person or persons in the definition of the Scheme in paragraph 5.4 of the Order, set out above], and discloses the means by which to contact such person(s) (including the postal address(es), telephone number(s) and email address(es) of such person(s));
11.2 provides the dates, times, content and other particulars of all communications in relation to the Scheme and/or the matters described in Woodhead 1 and which have occurred between the Second Defendant and any third party in the Relevant Period, including in particular communications with Mr Ruhan, the First Defendant, Mr Harvey and/or Mr Darren Woodhead, and, where the communication was with someone via an intermediary, details of both the intermediary and the principal;
(a) for the avoidance of doubt, the details to be provided in respect of the matters set out in paragraph 11.1 above shall include particulars of the matters discussed at the meetings attended by the Second Defendant with one or more of the persons listed in that paragraph on 11, 15 and 19 December 2015;
11.3 provides the telephone numbers and/or other relevant identifying details of any mobile telephones or other communication devices owned or controlled by the Second Defendant and which were used in the communications set out in paragraph 11.2 above;
11.4 provides the details of all money, benefits and/or other consideration he has been offered or received in relation to the matters set out in paragraph 11.2 above, including the value, means of payment offered or made or the means of transfer, date of offer or receipt, and name, address and other relevant contact details of the offeror or payor of any such consideration;
11.5 provides the particulars of any agreement made with or offered to Mr Mason, including the details of all money, benefits and/or other consideration offered to Mr Mason and the consideration which Mr Mason was required to provide in return;
11.6 provides the particulars of any agreement made with or offered to the First Defendant, including the details of all money, benefits and/or other consideration offered to the First Defendant and the consideration which the First Defendant was required to provide in return; and
11.7 discloses the full name(s) of the person(s) who have worked or are working with or for the Claimants and who was or were or is or are providing the Claimants' confidential information to third parties.
THE INDEPENDENT SOLICITOR
12. Upon receipt of the Fiddler and Anciano Telephones, the Fiddler and Anciano Telephone Records and/or the Property delivered to him pursuant to the December Order (as defined therein):
12.1 the Independent Solicitor is authorised to inspect, view, copy and do all such things incidental to the foregoing in relation to the Fiddler and Anciano Telephones, the Fiddler and Anciano Telephone Records and Property for the purposes only of ascertaining the matters to be reported upon pursuant to paragraph 12.2 below;
12.2 the Independent Solicitor shall within 14 days of this Order prepare and submit to the Claimants (via the Claimants' solicitors, Stewarts Law LLP, .a report on the following matters in relation to the Relevant Period:
(a) whether directly or indirectly through one or more intermediaries, the dates, times and (where known) substance of all communications between the First Defendant, and:
(i) Mr Ruhan, the Second Defendant and/or Mr Harvey;
(ii) any other third party identified by the First Defendant pursuant to paragraph 7 above;
(iii) any other third party where the Independent Solicitor reasonably believes that the communications with that third party were related to the Scheme;
(b) whether directly or indirectly through one or more intermediaries, the dates, times and (where known) substance of all communications between the Second Defendant, and:
(i) Mr Ruhan, the First Defendant and/or Mr Harvey;
(ii) any other third party identified by the Second Defendant pursuant to paragraph 11 above;
(iii) any other third party where the Independent Solicitor reasonably believes that the communications with that third party were related to the Scheme; and
(c) whether any voice, text and/ or other recorded messages and/or call logs and/or other records of communications in connection with the Scheme have or have apparently been deleted;
12.3 the Independent Solicitor has permission to seek assistance from one or more persons with expertise in analysing mobile telephones, in accordance with Part 35 of the CPR, to assist him in carrying out the tasks set out in subparagraphs 12.1 and/or 12.2above;
12.4 the Independent Solicitor may appoint one such individual to act as Independent Forensic Computer Expert if satisfied that that individual is appropriately qualified, has no conflict of interest, and has given undertakings to comply with CPR 35 and to take reasonable care not to damage the Property; and
12.5 the Independent Forensic Computer Expert, as so appointed, is authorised to do the things set out at sub-paragraph 12.1 above.
INABILITY TO COMPLY AND SELF-INCRIMINATION
13. To the extent that either of the Defendants asserts that he was or is unable to comply with paragraphs 5, 6, 7, 9, 10 or 11 of this Order, he shall, no later than 1230pm on the day after the date for compliance, email to the Claimants' solicitors an affidavit stating the reason(s) and identifying the steps he has taken to comply with those paragraphs.
14. If the provision of information in accordance with this Order is likely to incriminate a Defendant, that Defendant may be entitled to refuse to provide it, but is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Defendant liable to be imprisoned, fined or have his assets seized.
ORDINARY USE OF THE PROPERTY
16. Nothing in this Order prevents either Defendant from using the Fiddler Telephones or Anciano Telephones and/or the Fiddler Telephone Records or Anciano Telephone Records in the ordinary way prior to delivering them to the Claimants, provided that such use is consistent with this Order.
SCHEDULE A
MATERIAL PRE-READ BY THE JUDGE
1. Draft Amended Claim Form initialled by the Judge.
2. Draft Application Notice initialled by the Judge.
3. Judgments of Walker I dated 14 December 2015:
3.1 in these proceedings; and
3.2 in claim no. CL-2012-000625.
4. The December Order.
5. The following evidence:
5.1 First Affidavit of Mr Oliver Mason sworn on 14 January 2016 ("Mason 1");
5.2 First Affidavit of Mr Darren John Woodhead sworn on 14 January 2016 ("Woodhead 1");
5.3 First Affidavit of Ms Sinead Catherine Irving in these proceedings sworn on 14 December 2015 ("Irving (Fiddler Claim) 1");
5.4 Second Affidavit of Ms Sinead Catherine Irving in these proceedings sworn on 21 December 2015 ("Irving (Fiddler Claim) 2");
5.5 First Affidavit of Mr John Henry Harvey sworn on 21 December 2015 ("Harvey 1").
6. Written submissions filed on behalf of the Claimants:
6.1 in these proceedings:
(a) on 13 January 2016 (inter partes); and
(b) on 14 January 2016 (ex parte); and
6.2 in claim no. CL-2012-000625 on 12 January 2016.
SCHEDULE C
UNDERTAKINGS BY THE CLAIMANTS
The Claimants provide the following undertakings to the Court and to the Defendants:
1. to pay any damages to the Defendants that the Court considers should be paid in respect of any loss that either or both of the Defendants sustains as a result of this Order;
2. if the carrying out of this Order has been in breach of the terms of this Order or otherwise in a manner inconsistent with the Claimants' solicitors' duties as officers of the Court, to comply with any order for damages the Court may make;
3.to file with the Court as soon as is reasonably practicable upon the making of the Order an amended Part 8 claim form and an application notice in the form of the drafts initialled by the judge;
4. to serve on each of the Defendants as soon as is reasonably practicable upon the making of the Order:
4.1 this Order;
4.2 the issued application notice and amended Part 8 Claim form pertaining to the application in respect of which this Order has been made;
4.3 the evidence listed in Schedule A, sub-paragraphs 1.1 to 1.5 (save, in the case of the First Defendant, where such evidence has already been provided);
4.4 a copy of the transcript of the hearing in relation to this application before Mr Justice Popplewell on 14 January 2016; and
4.5 the Claimants' written submissions for the hearing at which the Order was made; and
5. prior to the Return Date, to use information and material supplied by the Defendants pursuant to this Order only for the purposes of this claim."
The Grounds for the Discharge Application
(1) There has been a failure to make full and frank disclosure in a number of respects.
(2) The evidence of wrongdoing put before the Court by the Claimants is incomplete, unreliable and in places incredible; and falls short of the solid, credible, candid and comprehensive evidence which is required, particularly in circumstances in which these Claimants have a history of abusing the Court's processes and misleading the Court.
(3) For the same reasons the evidence put before the Court as to Mr Anciano's involvement falls short of the cogent evidence needed to establish that he was sufficiently involved in the alleged wrongdoing to come within the Norwich Pharmacal jurisdiction.
(4) The purpose for which the information is sought is an illegitimate one: the Claimants do not seek the information in order to achieve legal redress against the perpetrators of any alleged wrongdoing, but are merely hoping to acquire evidence with a view to damaging the credibility of Mr Ruhan for the purposes of forensic advantage in relation to the main action and the dispute with which it is concerned.
The Main Action
Full and Frank Disclosure
"In considering whether there has been relevant non-disclosure and what consequence the court should attach to any failure to comply with the duty to make full and frank disclosure, the principles relevant to the issues in these appeals appear to me to include the following.
(1) The duty of the applicant is to make "a full and fair disclosure of all the material facts:" see Rex v. Kensington Income Tax Commissioners, Ex parte Princess Edmond de Polignac [1917] 1 K.B. 486, 514, per Scrutton LJ.
(2) The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers: see Rex v. Kensington Income Tax Commissioners, per Lord Cozens-Hardy M.R., at p. 504, citing Dalglish v. Jarvie (1850) 2 Mac. & G. 231, 238, and Browne-Wilkinson J. in Thermax Ltd. v. Schott Industrial Glass Ltd. [1981] F.S.R. 289, 295.
(3) The applicant must make proper inquiries before making the application: see Bank Mellat v. Nikpour [1985] F.S.R. 87. The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.
(4) The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant: see, for example, the examination by Scott J. of the possible effect of an Anton Piller order in Columbia Picture Industries Inc. v. Robinson [1987] Ch. 38; and (c) the degree of legitimate urgency and the time available for the making of inquiries: see per Slade L.J. in Bank Mellat v. Nikpour [1985] F.S.R. 87, 9293.
(5) If material non-disclosure is established the court will be "astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure is deprived of any advantage he may have derived by that breach of duty:" see per Donaldson L.J. in Bank Mellat v. Nikpour, at p. 91, citing Warrington L.J. in the Kensington Income Tax Commissioners' case [1917] 1 K.B. 486, 509.
(6) Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was or perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.
(7) Finally, it "is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes afforded:" per Lord Denning M.R. in Bank Mellat v. Nikpour [1985] F.S.R. 87, 90. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.
"when the whole of the facts, including that of the original non disclosure, are before [the court, it] may well grant a second injunction if the original non-disclosure was innocent and if an injunction could properly be granted even had the facts been disclosed:" per Glidewell L.J. in Lloyds Bowmaker Ltd. v. Britannia Arrow Holdings Plc., ante, pp.1343H-1344A."
(1)The findings of Ms Registrar Barber
" The conduct of all the parties including the Claimants, has been criticised by the Court. I refer in this regard to the following example of criticisms made in judgments:
a. Judgment of Registrar Barber dated 19 December 2014 [SCI1 pages 151 to 152] in respect of Skypark Limited's unsuccessful petition heard on 29 and 30 October 2014 in the High Court in bankruptcy to bankrupt Mr Ruhan which was dismissed with indemnity costs and in which the Registrar described the Skypark Limited's petition as a tool of oppression against Mr Ruhan "
(1) In a without notice application of the kind with which I was concerned, it is not sufficient that something important which needs to be drawn to the attention of the Court is merely to be found somewhere amongst the material before the Court. What is required is that attention should specifically be drawn to it as something which is potentially adverse to the claimant's case insofar as it is relevant to the issues which the Court is being asked to decide. In this case, a specific section was devoted to full and frank disclosure in the skeleton argument put before me. It can now be seen to be derived from the fuller account in Ms Irving's first affidavit, but to have been edited to remove any reference to Ms Registrar Barber's Judgment. The Court was entitled to expect that any material matters would be included in the skeleton which purported to address them. The duty to draw specific attention to matters in the evidence which are potentially adverse to the granting of the relief sought is all the more important in a case such as the present where a Judge is coming for the first time, on an urgent and expedited basis, to a case with a lengthy and complex background, involving a substantial body of documentary material.
(2) In any event, there were a number of important aspects of the findings of the Registrar and the terms in which they had been expressed which ought to have been drawn to the Court's attention and were absent even from the summary in Ms Irving's affidavit quoted in the Judgment of Walker J. They include the following:
(a) The criticisms had been made not only in relation to Skypark but also in relation to Mr Harvey. That was important, not least because Mr Harvey's evidence was relied upon before me as evidence upon which I could rely for the purposes of corroborating the Claimants' evidence and that of Mr Mason.
(b) There was no mention of the fact that the Registrar found that the invoices on which the statutory demand of Bridgehouse Cannizaro bore the indicia of having been doctored.
(c) Although Ms Irving's affidavit referred to Skypark's petition being used as a tool of oppression against Mr Ruhan, it did not capture the full flavour or seriousness of what the Registrar found in paragraphs 222-228. In those paragraphs she accepted the submission on behalf of Counsel for Mr Ruhan that those petitions and statutory demands formed part of an abusive and concerted attempt on the part of Dr Smith and Dr Cochrane and the Claimants to force Mr Ruhan to settle the main action. It was material to draw attention to that aspect, because it is highly relevant to the Norwich Pharmacal relief which was being sought for the Court to consider what was the Claimants' true purpose in seeking the relief, and whether it was in fact merely to seek advantage against Mr Ruhan in order to force him to settle the main action. It was also material to the weight which could be attached to Mr Harvey's evidence, because it indicated that Mr Harvey was prepared to indulge in abusive process for the same purpose at the behest of Dr Smith and Dr Cochrane.
(2) The Judgments of Cooke J of 11 February 2015 and 20 March 2015
"This is hard fought litigation with no holds barred between parties who are at enmity with one another and where a war of attrition is being waged in the shape of this action and other litigation being waged by the claimants against Mr Ruhan. The history of proceedings in the Isle of Man and of bankruptcy applications launched at the claimants' instigation and dismissed, with indemnity costs, because they were being used as a tool of oppression, speaks for itself. The Court will not give aid to a party who seeks to harass another in this way. It is not just and convenient to do so."
"It is clear from Dr Smith's approach, as mentioned earlier, that he uses the process of litigation, and abuses it, for the purpose of obtaining leverage and harassing others "
"53. The litigation has been described as no holds barred litigation. The proceedings between the First to Third Applicants and Mr Ruhan are bitterly contested and no expense has been spared by any party in litigating the case. The claimants, Mr Ruhan and their associates have also engaged in related litigation in BVI and the Isle of Man. The conduct of all parties, including the Claimants has been criticised by the Court.
54. By way of example, in the judgment of Cooke J in respect of the first to third applicants' failed application on 11 February 2015 to join Mr Stevens and three companies owned and/ controlled by Mr Stevens as co-defendants to these proceedings and for a freezing injunction against those parties and Mr Ruhan, the claimants were criticised for making an over-recovery through self help. They were also criticised for the failure to make disclosure of a certain settlement agreement between the claimants and Mr Ruhan's former associates until midway through the hearing which the judge considered to show a lack of clean hands and a failure to offer full and frank disclosure. The claimants were ordered to pay Mr Stevens' costs on the indemnity basis, and to pay £1,000,000 on account of his claim for costs of £3.1m."
(1) The application had in substance been rejected not merely for a failure to give full and frank disclosure and to come to the Court with clean hands, but also, as revealed particularly in paragraph 47, because it was an abusive application in circumstances where although there might be arguable causes of actions against Mr Stevens and his companies, there could be no realistic recovery from them in view of the recovery which had already occurred through the remedy of self help. It was not, therefore, a case merely of non-disclosure/lack of clean hands but an example of the Claimants' abuse of Court procedures by seeking to join defendants for a collateral purpose when there was no justification for the ostensible purpose of pursuing claims against them.
(2) There was no attempt to draw attention to the findings at paragraph 139 that it was clear from Dr Smith's approach in that case that he was using the process of litigation and abusing it for the purpose of obtaining leverage and harassing others.
(3) The expression in the skeleton argument that "the Claimants were criticised for making an over recovery through self help" is insufficient to convey the true nature or gravity of the findings of Cooke J in relation to the Isle of Man Settlement, the "extraordinary" documents which were produced to evidence it, and the circumstances surrounding it.
"1. At the time of the hearing before me in February, the position being advanced on behalf of Orb parties was that the Arena assets were to be ring fenced and that the effect of the undertakings which had already been given prior to that date, on 26 September, together with the assurances effective as from 23 September, was that such assets had already been ring fenced. Reference to the transcript for Days 4 and 5 makes those points clear.
2. What the Court was not told, but is now being told in Dr Cochrane's third witness statement and in the StoneTurn report, is that by 24 September a considerable volume of the Arena Trust Assets had already been moved, such that they were not within the Arena Trust and had been expended as part of Dr Cochrane's "personal expenditure". The premise therefore upon which the order proceeded and upon which the undertakings which appear in the order were given, was therefore not a correct premise. The order made on 11 February was intended to protect the position pending trial, with schedules of the parties' undertakings to that effect, so that the Arena Trust assets were ring fenced and an order made by this court as to the entitlement of the ultimate beneficial owner would be effective."
"
(9) The Court has been further misled about the settlement between the Orb parties and Mr Cooper and Mr McNally. It now appears that the £10 million paid by Mr Cooper and Mr McNally was the subject of a further agreement on 16 September 2013 for repayment with a commission of 5 per cent to be paid by the Orb parties to these two individuals on all realised and unrealised assets of the Arena Settlement that they handed over to the Orb parties. There is no evidence before the Court that any such sums have in fact been paid, but the existence of the agreement is now plain and was not a matter disclosed to the Court at the time of the hearings in February.
10. The excuse or apology offered in breach of the order is in my judgment inadequate nor explains how it was that the Court came to make orders or accept undertakings on the basis of an unfounded premise that the Arena Trust assets remained within the Arena Trust at the relevant time. In my judgment, Mr Ruhan's complaint that the Orb parties cannot be trusted is well founded."
"Cooke J also made further criticisms of the claimants during his subsequent hearing in March 2015."
(1) the Court had again been deliberately misled by the Orb parties, both in relation to the assets which were going to be ring fenced by the undertakings which had already been given, and in relation to the £10 million; and
(2) Cooke J had concluded that the Orb parties cannot be trusted.
(3)The Judgment of Warby J of 17 March 2015
"I am concerned at the prospect that the Norwich Pharmacal jurisdiction might be subject to what in other contexts has been called "function creep" whereby the obtaining of information for one purpose enables the recipient to deploy it for another and distinct purpose. It is generally undesirable, in my judgment, for the valuable Norwich Pharmacal jurisdiction to be used as a tool to dig up evidence and facts which are in reality designed merely to impugn the credit of witnesses or parties in litigation. I recognise that the argument that it should be up to the Commercial Court to determine the extent to which this information is of use and relevance has some force. Nonetheless, it seems to me the applicants need to cross the preliminary threshold of demonstrating the need of the exercise of the Norwich Pharmacal restriction in their favour in this respect and I am not satisfied that they have succeeded in that task."
(4) What Doctor Smith said about the Claimants' intentions at the meeting with Mr Mason at the Beaumont Hotel on 8 January 2016.
"Mr Mason: as soon as I divulge, I am trusting you not to harm me
Dr Smith: without wanting to sound rude we are not interested in you."
"The money has already gone. We have recovered the money from Ruhan [I interpose to say I understand this to be a reference to the self-help resulting from the Isle of Man Settlement]. This is all tidying up. He can't recover this. This is not a case where your testimony makes a difference to who recovers money. What we are interested in is stopping the case. I don't want to deal with AR [i.e. Mr Ruhan] again I have spent 10 years on this. The Genii guys [associates of Mr Ruhan] or Ruhan are not going to get an advantage or disadvantage from what you say Something induced you to come and see us and we would like to know what that is. Once we have that we can bring this to an end. It is ending it that we are interested in, not that you give us facts and we try to use it in a claim in court."
(5) Failure to disclose the notes of the meetings with Mr Mason on the 21 December 2015 and 8 January 2016, and draw attention to discrepancies between the account given on the latter occasion and that given in his affidavit.
" there is a certain part which I can't say. I would like to say but it would end me if I told you. Which party can I trust? Although there is an independent person if I tell you the key fact you could go straight to the civil court.
Smith: Ok so how did it start?
Mason: It started a bit differently. The key fact is that what I did was entirely my plan but someone asked me [to do something]-[to start something]
Smith: Do you know who that was?
Mason: I possibly know who that person was but I turned it into a completely different opportunity but one that benefitted me not anyone else. I did not take any money from the people who started me on that road. Someone contacted me. I don't necessarily know who that person was. If I had done what that person wanted me to do, in a sense I would have been offered money. The only reason I am here is because I want to be on your side but my life is on the line with the information.
..
Mr Upson: Those threats are from the people who instructed you at the start?
Mr Mason: No. There are a multitude of parties
Mr Mason: there is more than one side.
..
Mr Upson: Ok can I understand who the players are? You have us (Orb) and Pro Vinci, you have S Fiddler, you have Ruhan. Ruhan admits that he met you as well so everyone accepts he is a player in this issue at some level. I put Dom in his camp. Are there any other parties?
Mr Mason: Yes, everyone wants a piece of the cake. It would be pretty obvious if I said which piece.
Mr Upson: So there's a fourth group. Is it one other (fourth) group or several others?
Mr Mason: I believe there is a subsidiary group to the other (fourth) group.
Mr Upson: Of all these groups which instigated this whole affair?
Mr Mason: It is one of the groups
Mr Upson: Is it Orb, AR, SF or the others?
Mr Mason: If I tell you that it is definitive.
(6) The anomalies in the evidence of payment of £100,000 to Mr Mason
(7) Failure to give an adequate account of Dr Smith's dealings with Mr Mason on and between 21 December 2015 and 14 January 2016.
"27. When I saw Mr Mason at Denham we spoke for no more than about 10 minutes while the pilots of the Pilatus prepared that plane for Mr Mason's return flight to Manchester. It was cold so we moved into the waiting area. I recall that I started by saying that I did not want to discuss his day at Stewarts Law. I did however make a point of saying that he was a young guy who was potentially in serious trouble, and that I had been told that his explanation earlier in the day made no sense.
28. Mr Mason appeared very nervous, downcast and apologetic during this short conversation. He said that he had had a difficult life and was only concerned about his young son.
29. Mr Mason also made rather repetitive, rambling excuses for his involvement and apologies for the difficulty he has caused. I said to him that I believed that the only way through all of this was for him to tell the truth, whatever that was. That way the Court process (and the police) could find the wrongdoers in it all. I told him that I thought that, if he needed protecting from someone, this was the best way for him to get that protection.
30. I suggested that he think about matters over Christmas and, if he felt able, to make a further appointment to see Stewarts Law to give them the full story between Christmas and the New Year. Mr Mason said that it would not be possible to have a meeting as he was about to go on holiday to the Far East.
31. I said that I was sure a meeting could be arranged at his holiday destination if necessary.
32. Mr Mason asked 'hypothetically' what I thought would happen if he told the truth about his and others' involvement. I said that was for others to answer, but if he had been coerced in some way into becoming involved, the police and/or the courts might be able to offer him some protection if he was being intimidated.
33. I asked if he would email me his holiday itinerary, as a good faith gesture, so that I could pass it on to Stewarts Law to consider the location and timing of a further meeting. I repeated that I believed the truth was the way through the mess he was in. At this point the conversation ended and Mr Mason went to board his flight."
78. As I have already mentioned, Dr Smith also spoke to Mr Mason for the first twenty minutes of the meeting at the Beaumont Hotel on 8 January 2016. The note of that meeting reveals Dr Smith's extensive involvement in that part of the discussions, including discussion of what could be done to encourage Mr Mason to provide information and how protection for him might be arranged. As I have already adverted to, it involved giving Mr Mason the impression that the Claimants were not interested in pursuing him.
(8) The Narrow Ground
Conclusion on failure to make full and frank disclosure
Ground 4: the purpose for which the information is sought
The Norwich Pharmacal jurisdiction
"They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration."
"Later cases have emphasised the need for flexibility and discretion in considering whether the remedy should be granted: Ashworth Hospital Authority v MGN Ltd [2002] 1 WLR 2033, para 57, per Lord Woolf CJ; Koo Golden East Mongolia v Bank of Nova Scotia [2008] QB 717, paras 37-38, per Sir Anthony Clarke MR. It is not necessary that an applicant intends to bring legal proceedings in respect of the arguable wrong; any form of redress (for example disciplinary action or the dismissal of an employee) will suffice to ground an application for the order: British Steel Corpn v Granada Television Ltd [1981] AC 1096, 1200, per Lord Fraser of Tullybelton."
"59 One of the arguments Mr Browne placed before their Lordships for not adopting the non-technical approach which I regard as being correct was that if the disclosure was not linked with proceedings which would actually be brought, there would be no means of the court protecting a defendant against misuse of the material which was disclosed.
60 I agree that this is a matter for concern. However this concern will be met if an order for disclosure is not made unless a claimant has identified clearly the wrongdoing on which he relies in general terms and identifies the purposes for which the disclosure will be used when it is made. The use of the material will then be restricted expressly or implicitly to the disclosed purposes unless and until the court permits it to be used for another purpose."
"17 The essential purpose of the remedy is to do justice. This involves the exercise of discretion by a careful and fair weighing of all relevant factors. Various factors have been identified in the authorities as relevant. These include: (i) the strength of the possible cause of action contemplated by the applicant for the order: the Norwich Pharmacal case [1974] AC 133,199F-G, per Lord Cross of Chelsea, Totalise plc v The Motley Fool Ltd [2001] EMLR 750, para 27, per Owen J at first instance, Clift v Clarke [2011] EWHC 1164 (QB) at [14], [38], per Sharp J; (ii) the strong public interest in allowing an applicant to vindicate his legal rights: the British Steel case [1981] AC 1096, 1175C-D, per Lord Wilberforce, the Norwich Pharmacal case [1974] AC 133, 182C-D, per Lord Morris of Borth-y-Gest, and p188E-F, per Viscount Dilhorne; (iii) whether the making of the order will deter similar wrongdoing in the future: the Ashworth case [2002] 1 WLR 2033, para 66, per Lord Woolf CJ; (iv) whether the information could be obtained from another source: the Norwich Pharmacal case [I974] AC 133, 199F-G, per Lord Cross, the Totalise plc case [2001] EMLR 750, para 27, President of the State of Equatorial Guinea v Royal Bank of Scotland International [2006] UKPC 7 at [16], per Lord Bingham of Cornhill; (v) whether the respondent to the application knew or ought to have known that he was facilitating arguable wrongdoing: the British Steel case [1981] AC 1096, 1197A-B, per Lord Fraser, or was himself a joint tortfeasor, X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 54, per Lord Lowry; (vi) whether the order might reveal the names of innocent persons as well as wrongdoers, and if so whether such innocent persons will suffer any harm as a result: the Norwich Pharmacal case [1974] AC 133, 176B-C, per Lord Reid; Alfred Crompton Amusement Machines Ltd v Customs and Excise Comrs (No 2) [1974] AC 405, 434, per Lord Cross of Chelsea; (vii) the degree of confidentiality of the information sought: the Norwich Pharmacal case [1974] AC 133, 190E-F, per Viscount Dilhorne; (viii) the privacy rights under article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of the individuals whose identity is to be disclosed: the Totalise plc case [2001] EMLR 750, para 28; (ix) the rights and freedoms under the EU data protection regime of the individuals whose identity is to be disclosed: the Totalise plc case [zoo,] EMLR 750, at paras 18-21, per Owen J; (x) the public interest in maintaining the confidentiality of journalistic sources, as recognised in section 10 of the Contempt of Court Act 1981 and article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: the Ashworth case [2002] 1 WLR 2033 para 2, per Lord Slynn of Hadley"
Disclosure not necessary for a legitimate purpose
"It is possible, of course, that Oscar is not a fraudster and that he made the Video Recording under duress. (I note in this respect that he was reading from prompt cards). It is conceivable, in other words, that Oscar has been telling the truth all along and that someone did in fact approach him with a view to placing illegal pornographic material on to Pro Vinci's computer servers in an attempt to frame/discredit Pro Vinci or the Applicants generally. In light of this possibility, the Applicants also wish to identify Oscar so that Oscar can remove the encryption protecting the data, help in identifying the person or persons who contracted him to upload the child pornography to Pro Vinci's computer system, and assist in determining whether this incident is connected with the harassment that the Applicants have suffered."
"for example, if the only wrongdoers ever identified are Mr Mason and Mr Fiddler, then the Claimants may be justified in taking the view that there is no point throwing good money after bad seeking to recoup the £130,000 and other costs from them and electing not to pursue any legal action. However if the person(s) responsible for instigating the wrongdoing against the claimants is/are identified, then the claimants are presently minded to seek substantive relief against him/her/them in so far as possible to do so."
(1) The use of the statutory demands and petitions to harass Mr Ruhan for the purposes of the main action;
(2) The abusive attempt to join Mr Stevens and his companies in the main action; and
(3) The desire to use the material obtained on the Norwich Pharmacal application against Quest for the purposes of attacking Mr Ruhan's credit in the main action.