Mattioli v XY

Before issuing proceedings, the court may grant a non-disclosure order without notice where advance warning creates a real risk of further disclosure and would defeat the purpose of the proceedings. The order should use the Model Order and include a return date. A private hearing and restrictions on access to documents may be justified where oral disclosure would defeat the application or unfairly expose allegations which the absent defendant cannot answer. Anonymisation is appropriate where identifying the defendant may identify a third party whose confidential information is protected. The court may accept undertakings substantially reflecting the injunction and stay the proceedings.

The claimant sought urgent interim protection concerning confidential correspondence between him and an unidentified third party. On 6 February 2014, the court granted a non-disclosure order without notice, directed that the defendant be identified by initials, ordered a private hearing and restricted access to documents. The matter returned on 12 February 2014, when the defendant was represented by solicitors. The court was asked to accept undertakings substantially reflecting the injunction and stay the proceedings.

1. The court confirmed the interim non-disclosure order substantially in the form sought. Non-disclosure orders were required to use the Model Order and, in particular, to include a return date.
2. The application was properly heard in private. The evidence had not yet been reduced to writing, and oral disclosure in open court would have defeated the purpose of the application. Because the application was without notice, public allegations which the defendant could not answer would also have been unjust.
3. Restrictions on supplying documents under CPR practice directions were necessary for the same reasons. The information concerned correspondence between the claimant and a third party and was information whose disclosure was prohibited by the law of confidentiality, whether or not it was also protected by privacy law.
4. Proceeding without notice was justified because the defendant had already disclosed the information to a limited number of publishees and there was evidence of a risk of further disclosure before the matter could be brought before the court.
5. The defendant’s solicitors signed undertakings substantially in the form of the injunction. The court accepted those undertakings, continued the use of initials and maintained restrictions on public access to the court file. All further proceedings in the action were stayed.