ORB a.r.l.; & Ors v Ruhan

The court may grant interim orders for the preservation, inspection and forensic examination of property relevant to a contemplated claim under CPR 25 or the inherent jurisdiction. The order must be confined to what is necessary and proportionate to the interests of justice and the overriding objective. An order authorising investigative steps does not determine whether any person has committed a criminal offence. An applicant seeking relief without notice must make full and frank disclosure. Where proceedings and evidence have been kept private, continuation of that status requires strong and continuing justification, and the court must keep the position under review.

The claimants in an existing Commercial Court action concerning an alleged joint venture and fiduciary breaches applied privately and without notice for authority to obtain, preserve, inspect and analyse digital material supplied by a person calling himself Oscar. They feared that handling alleged child pornography might expose those assisting them to criminal liability and sought orders under CPR 25 and the inherent jurisdiction.

The court granted an order on 25 September 2015 and varied it on 26 October. Further evidence was inconclusive, and the claimants later sought related relief against Stephen Fiddler, including disclosure of Oscar’s identity and preservation of a video recording. The judgment addressed the interim position, the applicants’ disclosure obligations, police involvement, and whether the private status of the proceedings should continue.

1. September order. On the evidence then available, there were substantial grounds for thinking that someone was attempting to use Oscar’s services to injure the claimants or prejudice a fair trial. The court could make the requested order under CPR 25 and, insofar as necessary, under its inherent jurisdiction. The order concerned four confined classes of material and authorised detention, custody, preservation, inspection, experimentation and reporting.
2. The proposed handling of the material was proportionate. It was directed to investigating possible wrongdoing and was unrelated to the sexual abuse and exploitation which the relevant criminal offences were intended to proscribe. Granting the order furthered the overriding objective.
3. The court’s order did not decide whether any individual was guilty or innocent of an offence. It authorised steps which appeared desirable in the interests of justice and did not provide a criminal-law determination or immunity.
4. The applicants had proceeded on the basis of a duty of full and frank disclosure. The court considered the information disclosed about Dr Smith, the parties’ conduct and the possibility that Oscar was untruthful before deciding that the order should be made. At the later stage reached in this judgment, the court declined to conclude that relevant information had deliberately been withheld.
5. The continuation of private treatment required review. Some original reasons for secrecy had weakened because Oscar had supplied the material and notifying Mr Ruhan would not necessarily accuse him of wrongdoing. Nevertheless, the possibility that the approach to Oscar was connected with Mr Ruhan, and that disclosure might cause evidence or assistance to be lost, remained to be examined. Strong justification would be required for continued secrecy.
6. The restored application was therefore to be reviewed at a further hearing on 21 December 2015. The claimants were directed to prepare evidence addressing all matters relevant to continuation of the orders and private status, and to ensure that the police were informed and able to comment.
7. As to the proposed relief against Fiddler, the court required further work before making an order. The principles identified in Rugby Football Union v Viagogo Ltd were relevant to an order requiring assistance with information, and the proposal for delivery of the mobile phone required revision, including consideration of delivery to an independent solicitor.