Clarkson Plc v Person Or Persons Unknown

A court may determine an application without a hearing under the Civil Procedure Rules 1998 where it considers a hearing inappropriate. Consent neither compels nor is essential to that course. When an order derogates from open justice, the court must independently justify the derogation and may preserve transparency through a public order and reasoned public judgment.

Default judgment and a final non-disclosure injunction may be granted against unidentified defendants who have been properly notified but have not acknowledged service or defended the claim. The court may act on unchallenged particulars of claim where the conditions for default judgment are satisfied and the pleaded case clearly establishes the need for substantive relief.

The claimant, a public company in the shipping business, alleged that unidentified persons had gained unauthorised access to its IT systems, obtained confidential information and threatened disclosure unless a substantial payment was made. Interim injunctions and restrictions upon access to confidential court documents had previously been granted at two public hearings.

The defendants were served through the email address used to make the threats but neither acknowledged service nor served a defence. The claimant applied under rule 12.3(1) of the Civil Procedure Rules 1998 for default judgment, a final non-disclosure injunction, continuation of the open-justice derogations and costs. The court considered whether the application could properly be decided without a hearing and whether the pleaded case justified final relief against persons unknown.

1. Application granted. Default judgment was entered against the unidentified defendants. The court made a final injunction prohibiting communication, disclosure or other use of the claimant's confidential information, continued the justified restrictions upon access to confidential documents and ordered costs against the defendants.

2. Rule 23.8(c) of the Civil Procedure Rules 1998 empowered the court to determine the application without a hearing where it considered a hearing inappropriate. Consent did not bind the court to proceed on the papers, and absence of consent did not invariably prevent it from doing so. A final determination opposed by an participating party would be unlikely to be suitable for disposal on the papers, but the defendants had not engaged with the proceedings.

3. The open-justice principle and article 6 of the Convention did not require a hearing in the circumstances. A hearing would have increased expense without serving a sufficiently useful purpose. A public order and reasoned public judgment adequately publicised both the result and its basis. The written judgment was also likely to make the proceedings more accessible than an oral hearing for which no transcript would routinely be published.

4. Orders derogating from open justice required independent judicial scrutiny because the parties could not surrender the public's rights. The restrictions upon access to exhibits, schedules and other designated confidential material remained justified because there was a good case that the material was confidential and should not be publicly available as of right.

5. The approach in Brett Wilson LLP v Person(s) Unknown [2015] EWHC 2628 (QB) was adopted. The claimant had taken all reasonable steps to notify the defendants. Their failure to participate was most probably attributable to their wish to avoid identification as the apparent blackmailers. The requirements of rule 12.3(1) were met, permitting the court to grant substantive relief on the unchallenged particulars of claim without receiving evidence.

6. The pleaded facts demonstrated a clear need to prevent the threatened disclosures. The principal injunctions were therefore granted in the same terms as the interim order. The claimant's application for costs was also allowed.

• High Court, 6 March 2018: Default judgment was entered and a final non-disclosure injunction, continuing confidentiality protections and costs order were granted.

• High Court, 14 December 2017: Warby J continued the interim relief, renewed derogations from open justice and directed service and the steps required to bring the proceedings to trial or default judgment.

• High Court, 27 November 2017: Teare J granted an interim injunction and related derogations from open justice.