Clarkson Plc v Person or Persons Unknown who has or have appropriated, obtained and/or may publish information unlawfully obtained from the Claimant's IT systems

Judgment Approved

Today I am granting an application by the claimant for default judgment in this action, and making a final order for an injunction prohibiting the defendant from communicating or disclosing to any third party or in any other way using certain information, designated in the order as “the Confidential Information”. The order includes a number of provisions containing derogations from open justice.

At the request of the claimant, I have dealt with the application without a hearing. I should briefly explain the basis for doing that.

Open justice is a vital principle. But not every application needs to be dealt with at a hearing. Many are not. CPR 23.8(a) allows for an application to be dealt with “on the papers” where the parties consent to the order. Rule 23.8(b) allows this to be done where the parties consent to the application being dealt with in that way. Important orders can properly be made without a hearing on this basis. In PJS v News Group Newspapers Limited, I made a final order for a non-disclosure injunction in a media case on the papers. I did so by consent, in reliance on CPR 23.8(a) and (b). The parties had not only agreed the terms of the order, they had also expressly agreed that it should be dealt with on paper. Nonetheless, I considered whether proceeding in that way was in keeping with the open justice principle. I decided that it was, provided I gave a public judgment explaining what had been done and why.

In that judgment, [2016] EWHC 2770 (QB), I said at [1]–[2] that there was no need for a hearing,

“But I am giving this public judgment, for three reasons. The first is to ensure that the principle of open justice is respected, and that the derogations from open justice that I am granting are publicly explained. As explained in the Master of the Rolls' Practice Guidance: Interim Non-Disclosure Orders [2012] 1 WLR 1003:

“9. Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders, are public: see Article 6(1) of the Convention, CPR 39.2 and Scott v Scott [1913] AC 417.

One exception to that general rule is provided for by CPR 23.8. Dealing with a case “on the papers” is not incompatible with the open justice principle. It is an incursion. The extent to which such an incursion should be allowed must depend on the circumstances of the particular case. The Guidance goes on:

“16. Interim non-disclosure orders which contain derogations from the principle of open justice cannot be granted by consent of the parties. Such orders affect the Article 10 Convention rights of the public at large. Parties cannot waive or give up the rights of the public. The court's approach is set out in [ JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 [2011] 1 WLR 1645] at [21].”

The same reasoning applies to final orders. Dealing with this application on the papers but with a public order and a (short) public judgment strikes an appropriate balance between the competing rights.”

The other two reasons I identified for giving a public judgment in PJS do not apply to the present case.

As PJS illustrates, the Court is not bound to deal with an application without a hearing just because the parties consent. It retains a discretion. Sometimes, as has been observed, the very fact that there is consent is a reason to hold a hearing and deal with the matter in a public court room. Equally, the absence of consent does not necessarily debar the Court from dealing with an application on the papers, without a hearing. CPR 23.8(c) gives the Court the power to proceed without a hearing where it “does not consider that a hearing would be appropriate”. It is on that basis that I dealt with this application.

It is unlikely that the Court could or would deal on the papers with an application for a final order that determines civil rights, if that way of proceeding was opposed by one of the parties. But there are cases like the present, where one party has failed to engage with the proceedings and has therefore expressed no view about the matter. It is not necessary to decide whether that involves a waiver of the party's rights. I did not consider a hearing to be “appropriate” in this case, because it would have added to the expense of this claim without serving any sufficiently useful purpose. On the facts of this case, and this application, the open justice principle can be properly respected and compliance with Article 6 achieved without the need for a hearing. That can be done by making the order and, through this judgment, publicising the fact it has been made and the basis for making it. Indeed, a process of this kind may even represent a more practical and effective way to give effect to the open justice principle and the Convention requirement for a public judgment,...