G & Anor v Wikimedia Foundation Inc

A Norwich Pharmacal order may require an innocent intermediary to disclose information capable of identifying an alleged wrongdoer. Orders restricting open justice, anonymity, reporting or access to court documents must be necessary and proportionate, and limited to what the circumstances require. Applications for urgent or without-notice relief must be supported by appropriate evidence and must address subsidiary orders as carefully as the substantive relief. The usual requirement for a return date should be observed unless a reasoned departure is justified. Applicants seeking relief affecting freedom of expression should generally provide the respondent with a full note of the hearing, whether or not the respondent requests one.

The applicants, a mother and her young child, sought a Norwich Pharmacal order requiring Wikimedia Foundation Inc to disclose the IP address of a registered Wikipedia user who had amended an article concerning them. They alleged that private and confidential information had been disclosed and wished to identify the alleged wrongdoer before seeking further relief.

The respondent did not oppose disclosure and agreed to comply with a properly issued, narrowly drawn order, although it disputed the court’s jurisdiction. The court granted disclosure and anonymity for the applicants, but declined or limited other proposed restrictions concerning the respondent, access to the court file, reporting of the order, and procedural safeguards. The central issues concerned the proper limits of derogations from open justice and the requirements governing urgent without-notice applications.

1. Order made. The court made a Norwich Pharmacal order requiring disclosure of the IP information. It also protected the anonymity of the applicants and limited public access to specified material.
2. Orders restricting open justice are derogations from an essential principle of English law. Under CPR 39.2, such restrictions must be necessary and proportionate to protect the rights in issue, and must be limited to what the particular circumstances require. The same approach applies to private hearings and restrictions under CPR 5.4C(4).
3. The court must scrutinise draft orders carefully. Applicants should provide evidence and submissions addressing subsidiary restrictions as well as the substantive application. Restrictions on reporting, access to documents and disclosure of identities should not be granted merely because the application is urgent or concerns private information.
4. Unless the court orders otherwise, an injunction made without notice must contain a return date under paragraph 5.1 of the Practice Direction to Part 25. The requirement should generally be complied with. A departure may be justified, but the advocate must draw it to the judge’s attention and explain it. Per the approach emphasised in Thane Investments Ltd v Tomlinson [2003] EWCA Civ 1272, the word must in the Practice Direction is significant.
5. Applicants for urgent without-notice relief affecting freedom of expression should normally provide the respondent with a full note of the hearing. This protects the respondent and promotes the least interference with freedom of expression necessary to protect the applicant’s rights. The duty was supported by the guidance in Memory Corporation v Sidhu and another (No 2) [2000] 1 WLR 1443 and the authorities cited in the White Book.
6. The respondent was not entitled to anonymity because no case of jigsaw identification was advanced and no other grounds for anonymity were apparent. The proposed restriction preventing non-parties from obtaining statements of case was narrowed so that documents could be obtained in edited form, removing the applicants’ names and the confidential user name.