ZAB v Persons Unknown

In proceedings concerning unlawfully exfiltrated confidential data, the court may proceed in a defendant’s absence where the defendant knew of the hearing, deliberately failed to engage, and retains the right to seek discharge or variation. Alternative service may be validated retrospectively where the method was likely to bring the claim to the defendant’s attention and ordinary service had failed for reasons beyond the claimant’s control.

An interim injunction is justified where there is a serious issue to be tried, damages are inadequate, and the balance of convenience favours relief. Anonymity is an exceptional derogation from open justice. It requires clear and cogent evidence, strict necessity, close scrutiny, and consideration of less intrusive measures. Protecting affected individuals and avoiding encouragement of blackmail may justify anonymity for a corporate victim where disclosure could facilitate further publication or attacks.

The claimant sought continuation of interim prohibitory and mandatory injunctions following a ransomware attack in which sensitive data appeared to have been unlawfully exfiltrated and partly published on the dark web. The defendant, identified as persons unknown, had not attended the return hearing or complied with the earlier orders.

The claimant also sought retrospective validation and continuation of alternative service, abridgment of time for service, directions to bring the claim to a conclusion, restrictions on access to confidential material, and continued anonymity. The central issues were whether the court should proceed in the defendant’s absence, whether the interim relief and service orders should continue, and whether anonymity remained strictly necessary.

1. Proceeding in the defendant’s absence. The discretion under CPR 23.11 was properly exercised. The defendant had received the earlier order and was aware of the hearing. Its failure to participate appeared deliberate. The order preserved the defendant’s ability to seek discharge or variation. Section 12(2) of the Human Rights Act 1998 was considered, although its application was debatable.
2. Service. Under CPR 6.15 read with CPR 6.27, the court validated steps already taken by email as good service and permitted the same method prospectively. The failed attempt to use the previously directed method, the claimant’s lack of control over that failure, and the reply received from the monitored email address provided good reason to conclude that the documents had, or were likely to have, come to the defendant’s attention. Time for service of the application notice was abridged under CPR 23.7(4), with no prejudice caused.
3. Interim injunction. The claim for breach of confidence was strong. The defendant retained confidential information it knew it should not possess, had published aspects of it, and had failed to comply with the mandatory order. The principles in American Cyanamid v Ethicon [1975] AC 396 were satisfied: there was a serious issue to be tried, damages were inadequate, and the balance of convenience favoured the claimant. The injunction was continued. If section 12(3) of the Human Rights Act 1998 applied, the claimant was also likely to establish its case at trial.
4. Directions and open justice. Directions requiring the claimant to progress the claim towards determination were appropriate. Restrictions on access to confidential schedules, exhibits and witness statements were justified. Under the inherent common-law power reflected in CPR 39.2, anonymity could be continued only where strictly necessary in the interests of justice. The court applied the fact-specific balancing exercise described in A v British Broadcasting Corpn [2014] UKSC 25 and the strict scrutiny principles in JIH v News Group Newspapers [2011] 1 WLR 1645.
5. The evidence showed risks to individuals whose sensitive data may have been compromised and a real possibility that identifying the claimant would encourage further searches, publication or malicious attacks. Those considerations justified continued anonymity and the derogation was no more than necessary. The order was made in the proposed terms, subject to amendments.