Barclay v Barclay

An application for an interim non-disclosure order made on short notice requires a positive and compelling justification for urgency. The justification must ordinarily arise, or become apparent, so recently that the ordinary notice period could not reasonably be given. The expiry of existing reporting restrictions, or the absence of an interim injunction, is insufficient by itself. A failure to give undertakings not to act unlawfully is also not a standalone basis for relief. It may contribute to the evidence of a sufficient risk of wrongdoing, but the court must still identify evidence of a threat, intention or risk of unlawful use or disclosure. Where substantial undertakings have been offered and the application could have been made earlier, the court may accept the undertakings and refuse an injunction.

The claimants sought an interim non-disclosure order in proceedings alleging breach of confidence, misuse of private information and breach of data protection rights. The claims arose from covert recordings of private conversations at the Ritz Hotel and subsequent handling of the recordings and transcripts.

Several earlier hearings had produced doorstep delivery orders, disclosure-related directions, joinder of additional defendants and reporting restrictions. Those reporting restrictions were due to expire on 24 February 2020. After negotiations concerning confidentiality undertakings did not resolve every point, the claimants applied on short notice for further protection against use or disclosure of the information. The central issues were whether sufficient notice had been given and whether an injunction was necessary.

1. Short notice. The application was governed by Human Rights Act 1998, section 12, but section 12(2) was not engaged because notice had been given to the defendants and the Press Association. Under Civil Procedure Rules 1998, rule 23.7 and Practice Direction 23A, paragraph 4.1, the ordinary rule is that an application notice is served at least three days before the hearing. The court could direct otherwise, but the claimants had to show a clear and compelling justification.
2. The mere expiry of reporting restrictions, and the absence of an interim non-disclosure order, did not justify urgency. The evidence showed no materially new threat or development. The alleged covert recording and the defendants’ apparent untrustworthiness had been known for weeks, during which there had been several opportunities to seek injunctive relief.
3. A refusal to provide undertakings not to act unlawfully could not itself justify an injunction. It could make an evidential contribution to the assessment of risk, but there still had to be evidence of a threat, intention or sufficient risk of unlawful use or disclosure. The defendants’ position and their negotiations were assessed as responsible and reasonable.
4. The court did not determine the substantive merits of disputed wording concerning reverse engineering or the proposed notice procedure for information said to have an independent source. Those issues had arisen too recently for a sensible determination on the present application.
5. The defendants’ undertakings were accepted in the terms offered, subject to the restrictions and limitations identified in argument. No injunction was made. Any further restrictions would require a fresh application if agreement could not be reached.