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

A court may grant interim disclosure and preservation relief against a person who may possess evidence relevant to arguable wrongdoing, including a person who may be a joint wrongdoer. The strength of the evidence, the public interest in vindicating legal rights, the absence of another source for the information and the likely practical utility of the order are relevant considerations.

An order may be made privately and without notice where notice would create a strong risk of destruction of evidence or warning others, so defeating its purpose. Such restrictions must remain necessary and proportionate, having regard to section 12 of the Human Rights Act 1998 and elementary principles of justice.

The claimants sought interim relief against Steven Richard Fiddler in connection with alleged wrongdoing by a person known as Oscar. Mr Fiddler had approached witnesses, described his involvement with Oscar and shown a video recording which allegedly concerned the underlying dispute.

The application was heard without notice. The court considered whether Mr Fiddler should be required to disclose information concerning Oscar, preserve and provide the video recording and associated metadata, and permit inspection by an independent solicitor or forensic computer expert. The central issues were the order’s practical utility, the protection of confidentiality and privacy, and whether notice should be withheld pending a return hearing.

1. Interim relief granted. The court made the 14 December Fiddler order in private and without notice. It required disclosure of information concerning Oscar, preservation of the video recording, metadata and mobile telephone, and delivery or access arrangements enabling inspection and copying by an independent solicitor.
2. The evidence of Mr Fiddler’s approach and conduct was credible on the material then available. There was very strong evidence that Oscar had breached an express or implied agreement, knowingly made false representations and that Mr Fiddler had been involved, wittingly or unwittingly, in an attempt connected with that wrongdoing.
3. The court considered that the claimants had a strong public interest in vindicating their legal rights and no information suggested that the material could be obtained elsewhere. If Mr Fiddler was a joint wrongdoer, the principle in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1 at 54 strengthened the case for relief.
4. The practical utility of the order was sufficiently established by the evidence concerning police views. Having regard to the express provision made in Civil Procedure Rules 1998 CPR 25 and the considerations identified by Lord Kerr in Rugby Football Union, it was in the interests of justice to require compliance with the primary injunctions and, in specified circumstances, the secondary injunctions.
5. Having considered section 12 of the Human Rights Act 1998, the court held that privacy and confidentiality restrictions were necessary until the return date. Prior notice created a strong risk that evidence would be destroyed and that Oscar or others would be warned, defeating the object of the order. The order and judgment were to be provided to Mr Fiddler without delay, while remaining private and confidential until 6 pm on the return date.