AB v Barristers Benevolent Association Ltd (Rev 1)

Applications for interim injunctions concerning confidential information should ordinarily be notified to the respondent, even where made urgently and outside normal court hours. Non-notification is justified only where secrecy is essential, and such cases are very rare. The judge should, where practicable, communicate with the intended respondent before deciding the application. Applications should comply with Practice Direction 25A and the applicable practice guidance, including the provision of evidence and an accurate record of the application. A mandatory order should be no wider than necessary and should account for the practical effects of disclosure restrictions. Information retained in an internet cache may take several days to remove.

The claimant, a barrister, discovered that confidential correspondence relating to a proposed loan from the defendant benevolent association was accessible through Google. On an out-of-hours telephone application, an interim injunction was granted without notice. The order required removal of specified material from the internet and prohibited disclosure of the information and the existence of the proceedings.

The order was subsequently varied. At the return date the claimant no longer sought continuation of the injunction, because the evidence showed that an injunction against the defendant was unnecessary. The injunction was discharged. The remaining issue was whether the claimant should be granted anonymity so that the judgment would not reveal confidential information.

1. The interim injunction was discharged because it was unnecessary. The parties agreed that the documents contained confidential information and that their confidentiality should be preserved. The court therefore did not determine the other grounds on which the defendant would have sought discharge.

2. Applications made before issue of a claim form must comply with Practice Direction 25A. Under paragraphs 4.3 and 4.4, an applicant should notify the respondent informally unless secrecy is essential. The requirement applies even to urgent telephone applications.

3. Secrecy was not essential in this case. The claimant had been in frequent communication with the defendant and its IT consultant. The judge could have spoken to them while considering the application, by conference call, sequential telephone calls or email exchanges. A general warning that an injunction might be sought did not satisfy the notification requirement.

4. An applicant must support an injunction application with a witness statement and keep a contemporaneous record of what is said to, and by, the judge. If extreme urgency prevents prior written evidence, the information must be recorded immediately afterwards and supplied promptly to the respondent when the order is notified.

5. The judge observed that cases in which no notice is required under paragraph 4.3(3) are very rare. Early involvement of the intended respondent may assist the court in formulating an appropriate order. Information stored in a Google cache may also take several days to remove.

6. An anonymity order was made for the claimant because publication of her identity in the judgment would have revealed confidential information. The defendant did not seek anonymity.

The claimant made an out-of-hours application to a duty judge on 6 December 2011. An injunction was granted without notice and was varied on 8 December 2011. At the return date before the High Court, the claimant did not seek continuation of the injunction, which was discharged. The High Court then determined the anonymity issue.