ABC V AVATAR LTD [2013] EWHC 3020 QB
Child Abuse Compensation Claims – Non disclosure order
FACTS:-
On 2 March 2012 the Claimant issued a claim form claiming damages for assault. On 6 July 2012 the Master made an order that on the court documents there be substituted for the parties' names the initials ABC and DEF respectively. The order was made on the application of the Claimant and without notice to the Defendant. On 9 July 2012 the Claimant served Particulars of Claim. On 9 August 2012 the Defendant served a Defence denying the Claimant's allegations. On 12 July 2013 an order was made that the parties exchange witness statements. The Defendant was not willing to exchange witness statements. On 16 August 2013 the Claimant obtained an order without notice to the Defendant that unless the Defendant exchanged his witness statement with the Claimant by 4pm on 30 August 2013, the Defence be struck out and the Claimant be at liberty to apply for judgment in default. On 13 September judgment was entered for the Claimant against the Defendant for damages to be assessed. On 19 September 2013 the Claimant applied without notice for the anonymity order to be set aside in so far as it related to the Defendant, and the Master did set it aside to that extent. On 4 October 2013 the Judge sitting in the Interim Applications Court granted a nondisclosure order upon the application of the Defendant. It provided that the Order was to last until the morning of 8 October 2013. The effect of that non-disclosure order of 4 October is to prohibit the Claimant from communicating to any third party (not being a legal representative of either party) the fact of the default judgment entered against the Defendant, and of communicating the identity of the Defendant as a party involved in the proceedings.
JUDGEMENT:-
Mr Justice Tugendhat said that the most notable feature of the non-disclosure order of 4 October, was that the order was not made in the form of the Model Order set out in the Practice Guidance: Interim Non-Disclosure Orders issued by the Master of the Rolls in August 2011 ([2012] 1 WLR 1003) and set out in the White Book (2013) and elsewhere, and the application did not appear to have made in accordance with the Guidance. The reference in the White Book was to Vol 1 para B13-001. In the application, the Defendant had also failed to address the requirements of that Guidance. There was simply no evidence before the court that such an order was necessary, or that the Defendant had considered the guidance of the Master of the Rolls in JIH v News Group Newspapers Limited [2011] EWCA Civ 42; [2011] 1WLR 1645 para [21].
Tugendhat J went over that Guidance. The Model Order required the Applicant to undertake to cause a witness statement to be made confirming the substance of what was said to the Court by the Applicant's counsel: Schedule B(4) as set out in the White Book at para B13-050. Tugendhat J had repeatedly expressed concern about applications made without notice in breach of CPR Part 25 and Practice Direction 25A para 4.3. He referred to the case of O'Farrell v O'Farrell [2012] EWHC 123 (QB) paras [61]-[70]. There was nothing in the files, which could have provided justification for a without notice application.
This was not an application for an anonymity order, but a non-disclosure order. A Master had no jurisdiction to grant an injunction, and that of course included a non-disclosure order. Tugendhat J referred to CVB v MGN Ltd [2012] EWHC 1148 (QB); [2012] EMLR 29 paras [47]-[50].
The Defendant's application for a non-disclosure order would be dismissed.
Child Abuse Compensation Claims – Non disclosure order
FACTS:-
On 2 March 2012 the Claimant issued a claim form claiming damages for assault. On 6 July 2012 the Master made an order that on the court documents there be substituted for the parties' names the initials ABC and DEF respectively. The order was made on the application of the Claimant and without notice to the Defendant. On 9 July 2012 the Claimant served Particulars of Claim. On 9 August 2012 the Defendant served a Defence denying the Claimant's allegations. On 12 July 2013 an order was made that the parties exchange witness statements. The Defendant was not willing to exchange witness statements. On 16 August 2013 the Claimant obtained an order without notice to the Defendant that unless the Defendant exchanged his witness statement with the Claimant by 4pm on 30 August 2013, the Defence be struck out and the Claimant be at liberty to apply for judgment in default. On 13 September judgment was entered for the Claimant against the Defendant for damages to be assessed. On 19 September 2013 the Claimant applied without notice for the anonymity order to be set aside in so far as it related to the Defendant, and the Master did set it aside to that extent. On 4 October 2013 the Judge sitting in the Interim Applications Court granted a nondisclosure order upon the application of the Defendant. It provided that the Order was to last until the morning of 8 October 2013. The effect of that non-disclosure order of 4 October is to prohibit the Claimant from communicating to any third party (not being a legal representative of either party) the fact of the default judgment entered against the Defendant, and of communicating the identity of the Defendant as a party involved in the proceedings.
JUDGEMENT:-
Mr Justice Tugendhat said that the most notable feature of the non-disclosure order of 4 October, was that the order was not made in the form of the Model Order set out in the Practice Guidance: Interim Non-Disclosure Orders issued by the Master of the Rolls in August 2011 ([2012] 1 WLR 1003) and set out in the White Book (2013) and elsewhere, and the application did not appear to have made in accordance with the Guidance. The reference in the White Book was to Vol 1 para B13-001. In the application, the Defendant had also failed to address the requirements of that Guidance. There was simply no evidence before the court that such an order was necessary, or that the Defendant had considered the guidance of the Master of the Rolls in JIH v News Group Newspapers Limited [2011] EWCA Civ 42; [2011] 1WLR 1645 para [21].
Tugendhat J went over that Guidance. The Model Order required the Applicant to undertake to cause a witness statement to be made confirming the substance of what was said to the Court by the Applicant's counsel: Schedule B(4) as set out in the White Book at para B13-050. Tugendhat J had repeatedly expressed concern about applications made without notice in breach of CPR Part 25 and Practice Direction 25A para 4.3. He referred to the case of O'Farrell v O'Farrell [2012] EWHC 123 (QB) paras [61]-[70]. There was nothing in the files, which could have provided justification for a without notice application.
This was not an application for an anonymity order, but a non-disclosure order. A Master had no jurisdiction to grant an injunction, and that of course included a non-disclosure order. Tugendhat J referred to CVB v MGN Ltd [2012] EWHC 1148 (QB); [2012] EMLR 29 paras [47]-[50].
The Defendant's application for a non-disclosure order would be dismissed.