NCL v MME

Where a defendant has threatened disclosure of confidential information, failed to provide requested undertakings, and then published the material, it may be reasonable for the claimant to seek an injunction without notice. If the application was reasonably made, the defendant may be ordered to pay the claimant’s costs despite asserting that the proceedings were unnecessary or that he cannot afford them. The court may assess those costs summarily.

The claimant obtained an injunction restraining the defendant from disclosing confidential information. At the return hearing, the defendant offered acceptable undertakings and stated that he had removed the relevant book from publication, so the injunction was not renewed.

The remaining dispute concerned costs. The defendant argued that the application had been unnecessary because he would have offered undertakings voluntarily and relied on his inability to pay. The issue was whether the claimant had acted reasonably in issuing the application without notice and, if so, what costs order should follow.

1. The injunction was not renewed because the defendant offered undertakings acceptable to the claimant and stated that he had removed the book from publication.
2. The hearing was properly held in private. Reference to confidential information, and information capable of identifying the claimant, was inevitable. Public disclosure would have defeated the purpose of the action and frustrated the administration of justice.
3. The claimant acted reasonably in making the application without notice. The defendant had failed to respond to an earlier request for undertakings, despite having been warned that proceedings might be issued, and had published the book after that warning.
4. The defendant’s assertion that he would have given undertakings if asked did not make the application unnecessary. His inability to pay costs did not displace the ordinary consequence of his conduct.
5. The defendant was ordered to pay the claimant’s costs of the application, summarily assessed at £42,000.