“[The Claimant] is in hock to the Daily Mail for£28k . Their legal costs would have been substantially more, so this is a reduced figure. He’s got to attend court on 31st March for questioning over his financial circumstances and how he intends to pay this back. Better fess up to your Revolut and Monzo accounts… Bad news for [G] and [M] who can expect to receive the square root of Jack Shit towards their legal costs. [The Claimant] reaps what he has sown. Glorious.” [The Claimant] reaps what he has sown. Glorious.”
“(A) The Application has been referred to me by the Master because it raises an important point of principle: in what circumstances can the Respondent (whether voluntarily or by Court Order) provide information about the identity of a person who has obtained a copy of a document required to be open for public inspection from the Court File in civil proceedings. The Application has echoes of the Norwich Pharmacal jurisdiction, but the point needs proper investigation. It is not suitable for resolution without a hearing, or without the Respondent being properly served. (B) The Respondent is an Executive Agency of the Ministry of Justice. I have therefore directed service of the Application on the Treasury Solicitor (CPR 6.10 (b) andPD 66 ). (C) I have given directions ultimately leading to the Hearing which will be fixed as directed... (D) The Defendant is not a respondent to the Application. The directions do not require the Defendant to do anything. If the Defendant wanted to participate and make submissions at the Hearing, then it should ensure that it too complies with the directions given … above as they apply to the Respondent.”
“In any event, disclosing my identity will not reveal the identity of the ‘KiwiFarms’ poster. The Order was lawfully shared in several private groups with multiple people where Ms Hayden’s conduct is occasionally and legitimately discussed, and where I am able to evidence that I neither encouraged the posting of, or posted, the Order on KiwiFarms. I was however entitled to purchase a copy of, and to share that copy of the Order with others lawfully and lawful purposes if I wished to, which means there is no wrongdoing on my part. It was not intended that Ms Hayden would know about this so there was no intention to harass her, even if can be shown that it being posted caused harassment (which is not accepted).”
“(1) A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of any document listed in paragraph 4.2A ofPractice Direction 5A . (2) A party to proceedings may, if the Court gives permission, obtain from the records of the court a copy of any other document filed by a party or a communication between the court and a party or another person.”
“As a matter of basic principle the starting point should be that practices adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed adversely affect the ability of the public to know what is happening in the course of proceedings.”
“CE-File is an electronic case management system which allows for the issue of a claim, the filing of applications, the filing of documents and communication with the court electronically. CE-File was rolled out in the Queen’s Bench Division in 2019 and replaced the previous paper-based case management system. The CE-File database contains all documents filed in relation to each claim and allows the parties remote access to the electronic records. In some cases a CE-File claim can by anonymised by order of a Judge. When any filing on a case is made, all staff and judiciary see an ‘alert’ on the homepage of a case file which indicates unprocessed filings. Staff or the Judge can click this alert and see what is unprocessed, however, once the filing is processed, the alert disappears. For office copy requests, once the filing is processed, it is not listed in the case file event log, whereas other filings do appear in the event log for both staff and judiciary to view. The Court does not distinguish how it treats a document or database entry related to obtaining a document (order) by a member of the public. Under the system of paper files, the request would be placed in the court file and not filed separately, under CE-File where requests are now made electronically the request is retained on the case management system under the unique case number relating to the case.”
“Although [the] requirement of involvement or participation on the part of the party from whom discovery is sought is not a stringent requirement, it is still a significant requirement. It distinguishes that party from a mere onlooker or witness. The need for involvement… is a significant requirement because it ensures that the mere onlooker cannot be subjected to the requirement to give disclosure. Such a requirement is an intrusion upon a third party to the wrongdoing and the need for involvement provides justification for this intrusion.”
“If a participation or facilitation test were the sole test, incapable of expansion, [Counsel for the Metropolitan Police] would be correct. However, I do not think that it is the sole test. It is true that the traditional formulation of the test is in such terms, but that is because those are the usual circumstances in which someone becomes something beyond a mere witness. On the facts of the cases where orders were made, the respondent was usually in that position. In my view the answer to the question lies in recognising that what the cases are doing is contrasting two things—the mere witness on the one hand, and a person who is not a mere witness on the other. On the cases the latter class is generally described in terms of participation/facilitation, as though that were the opposite of being a mere witness. But the real analysis lies in appreciating that the courts are holding not that those factors are indeed the other side of a dichotomy, but that those factors prevent the respondent from being a mere witness. Once that is recognised then it becomes relevant to consider whether there are other facts, short of participation/facilitation, which could prevent a person from being a mere witness. That question has not arisen in the cases in terms, but since the real question is the scope of the mere witness rule it is relevant to consider that particular question. It has been made to arise in the present case because of its unusual facts.”
“It is suggested that it is doubtful whether future cases will follow the wider approach in News Group. It does not seem that NML Capital was cited to Mann J, although it was decided a few weeks before the News Group judgment. It seems inconsistent with the decision of Mann J. NML was seeking to enforce a judgment debt against the Republic of Argentina. NML sought Norwich Pharmacal relief against Chapman Freeborn, who had entered into a sub-charter with Argentina, seeking details of the sub-charter and bank accounts through which payment may have passed. Tomlinson LJ said that it was clear that if the Norwich Pharmacal jurisdiction was not to become wholly unprincipled, the third party must be involved in the furtherance of the transaction identified as the relevant wrongdoing before an order can be made. But that is surely exactly the opposite of what Mann J held. Tomlinson LJ continued [at [27]]: ‘The present case is in my judgment completely different from one in which assets are removed from a jurisdiction for no purpose other than to insulate them from execution in satisfaction of a judgment debt. Such a transaction would arguably be in itself for relevant purposes wrongful. So too the transfer of assets between persons or companies for a similar purpose, as in the case of transfers of money to Mrs Aiyela by Mr Aiyela and companies which he controlled as arguably had occurred in the Mercantile Trust case. The evidence in that case demonstrated that that was arguably done for the purpose of frustrating execution against Mr Aiyela’s assets. Mrs Aiyela was, in the words of Steyn LJ, mixed up in her husband’s attempt to make himself judgment proof.’” ‘The present case is in my judgment completely different from one in which assets are removed from a jurisdiction for no purpose other than to insulate them from execution in satisfaction of a judgment debt. Such a transaction would arguably be in itself for relevant purposes wrongful. So too the transfer of assets between persons or companies for a similar purpose, as in the case of transfers of money to Mrs Aiyela by Mr Aiyela and companies which he controlled as arguably had occurred in the Mercantile Trust case. The evidence in that case demonstrated that that was arguably done for the purpose of frustrating execution against Mr Aiyela’s assets. Mrs Aiyela was, in the words of Steyn LJ, mixed up in her husband’s attempt to make himself judgment proof.’”
“The third party has to have some connection with the circumstances of the wrong which enables the purpose of the wrongdoing to be furthered.” [26] It follows that it is important to analyse with some care in what precisely lies the alleged wrongdoing. There is nothing inherently wrong in chartering an aircraft, unless it be said that any trading by a judgment debtor which involves using his assets for that purpose rather than satisfying a judgment debt is in itself wrongdoing. However I reject that proposition. It would lead to a jurisdiction of absurd width. It is no answer to that objection that the exercise of the jurisdiction would be subject to discretionary considerations. It would be absurd and exorbitant if parties were exposed to the risk of having to defend applications for discovery on the basis of no more than having traded with a person who turns out to have been at the relevant time a judgment debtor. It would encourage speculative litigation.”
“In my judgment, [this] argument is misconceived. If the claimant is right in thinking that the policy holder has fraudulently asserted that his parents moved out of their home for a period to allow him and his family to occupy the house exclusively, it is arguable that his parents were involved in the wrongdoing. But I can see no basis on which it could be said that his mother’s mobile phone service provider was more than a mere witness or, in Mann J’s phrase [from News Group], engaged with the wrong. The fact that the phone account holder would have been able to pretend she was somewhere she was not does not draw the phone company into her wrongdoing. It is true that the phone records may assist in establishing the truth of the parents’ whereabouts. But in that regard the phone company is manifestly a mere witness. Its position is no different from anyone else who may be able to provide evidence about that issue – for example, the nephew living in Milton Keynes, or the neighbours to the parents’ property, or, as Lewis LJ helpfully suggested in the course of the hearing, the milkman. The phone company’s position seems to me to be analogous to that of a security company which installs CCTV cameras at a property. Such cameras are also a feature of modern life. The purpose of the cameras is to detect or deter burglars who have no right to be at the property, but they may also incidentally detect the presence of the householders who have every right to be there. The security company would therefore be a witness to any unlawful activity engaged in by the householders but it would not be drawn into that activity in any way.”