ORB A.R.L and Others v Stephen Richard Fiddler and Another
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Popplewell |
| Judgment Date | 26 February 2016 |
| Neutral Citation | [2016] EWHC 361 (Comm) |
| Docket Number | Case No: CL-2015-000876 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 26 February 2016 |
[2016] EWHC 361 (Comm)
The Hon. Mr Justice Popplewell
Case No: CL-2015-000876
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Mr James Drake QC, Miss Lorna Skinner, Mr Nicholas Gibson (instructed by Stewarts Law LLP) for the Claimants
Mr Patrick Lawrence QC and Mr Shail Patel (instructed by Enyo Law LLP) for the 2 nd Defendant
Hearing date: 18 February 2016
Introduction
On 14 January 2016 I heard a without notice application by the Claimants for Norwich Pharmacal relief requiring the First Defendant ("Mr Fiddler") and the Second Defendant ("Mr Anciano") to deliver up telephones and telephone records, and to provide information on affidavit ("the Norwich Pharmacal Application"). Following redrafting of parts of the draft order, I made such an order against Mr Fiddler and Mr Anciano on 15 January 2016 ("the Norwich Pharmacal Order"). At the return date on 28 January 2016 and at a further hearing on 18 February 2016 an application was made on behalf of Mr Anciano to discharge the Norwich Pharmacal Order. At the conclusion of the hearing on 18 February 2016 I announced my decision to accede to that application, and gave such brief reasons as the lateness of the hour permitted. These are my fuller reasons.
Parties
In August 2002, the First Claimant ("Orb") became the ultimate holding company of a group with interests in hotels, commercial and warehouse properties, transport and logistics businesses and venture and private capital. Dr Smith was its chief executive officer, a position he retained until his resignation in April 2006. The Second Claimant, Mr Taylor, was the group property director for the Orb group. The Third Claimant, Mr Thomas, is a businessman who became involved in the Orb Group in 2003.
Orb is a company incorporated under the laws of Jersey. Its issued share capital is registered in the name of a trust company which holds the shares as the sole trustee of a settlement of which Dr Cochrane, Dr Smith's former wife, and their two daughters are the sole beneficiaries. Dr Cochrane, who is a medical practitioner practicing full time in Jersey, is the director and sole owner of Orb. The Fourth Claimant ("Pro Vinci") provides family office services to her and her family. The managing director and sole shareholder of Pro Vinci is Ms Dawna Stickler. Ms Sinead Irving is employed as an executive assistant to Ms Stickler.
Orb, Mr Taylor and Mr Thomas are claimants in Commercial Court proceedings 2012 Folio 1414 (now CL-2015-000625) ("the main action") commenced in October 2012 against Andrew Joseph Ruhan ("Mr Ruhan"). The main action, which I describe in more detail below, concerns assets worth in excess of £250 million. It is awaiting trial.
Although Dr Smith no longer holds any formal position or interest in Orb, the main action claimants have agreed with him that in return for his cooperation and assistance in that action, they will transfer to him 50% of the sums recovered in those proceedings (up to a certain limit). Dr Smith was described in the Claimants' evidence on the Norwich Pharmacal Application as being "a consultant".
The events giving rise to the Norwich Pharmacal Application
The events with which this application is concerned were described in the course of argument as "shenanigans". They involve activity the full nature and purpose of which remains to a significant extent obscure or uncertain. Neither side suggested that they could provide a coherent explanation for all the evidence in the case.
The genesis of the Norwich Pharmacal Order lies in the following events asserted by the Claimants:
(1) On 3 September 2015 Ms Irving was approached by a person using the pseudonym "Oscar" who wanted to speak to Dr Smith. At meetings on 7 and 10 September 2015 between Oscar and Dr Smith alone, Oscar explained that he was a computer hacker and that he had been offered £50,000 by an anonymous agent to perform a file drop of child pornography onto Dr Smith's or Pro Vinci's computer systems. Oscar said that he had evidence that the source of the instruction was an IP address associated with a boat in a harbour in Palma, Mallorca, and that he needed £30,000 to buy specialist equipment to enable him to provide evidence which would trace the source of his instructions. The impression which Oscar gave was that the source of his instructions was connected to Mr Ruhan.
(2) On 14 September 2015 Oscar met Ms Irving and Dr Smith at the Westbury Hotel, together with Mr Upson and Mr Erusalimsky of the Claimant's solicitors, Stewarts Law LLP. At that meeting Oscar was given £30,000 in cash for the purpose of buying equipment he said was necessary in order to trace the source of his instructions and provide evidence thereof.
In anticipation of receipt of files containing child pornography from Oscar, the Claimants were concerned that they would be exposed to allegations of criminal conduct merely by virtue of receipt and examination of such material. Accordingly an application was made in private to Walker J on 25 September 2015 in effect to sanction the receipt and examination of such material. Walker J heard the application in private on the Claimants' without notice application, and made such an order including provisions designed to retain the privacy of such an order ("the Data Sticks order"). The application and order were made in the main action.
The Claimants' account of events continues as follows:
(1) At a further meeting with Oscar at Pro Vinci's offices on 1 October 2015, at which Ms Irving and representatives of Stewarts Law LLP were present, Oscar handed over three memory sticks said to include the child pornography. The Claimants say that on that occasion Oscar was paid a further £100,000 in cash, which he had said he required in order to be able to produce the evidence of the source of his instructions. He said the material on the data sticks was encrypted; he declined to provide the password but said that any expert worth his salt would be able to get past the encryption.
(2) Matters then went quiet and the Claimants lost touch with Oscar.
(3) The next the Claimants heard was a telephone call from Mr Fiddler to Ms Irving on 22 November 2015 seeking to speak to Dr Smith about Oscar. A meeting was arranged, which took place on 24 November 2015, initially at Starbucks and then at Pro Vinci's offices, attended by Mr Fiddler, Dr Smith and Ms Irving. At that meeting Mr Fiddler played to them a video on his telephone, which portrayed Oscar, apparently reading a script from prepared cards, making the allegation that contrary to his earlier assertions, in fact he had been engaged by Dr Smith to file-drop child pornography on Dr Smith's/Pro Vinci's servers and to make it look as though he had been instructed to do so by Mr Ruhan.
In the light of what Mr Fiddler was now saying, the Claimants sought an order from Walker J against Mr Fiddler for disclosure of Oscar's identity and to enable them to interrogate Mr Fiddler's phone in order to try to obtain information from the metadata which might cast light on the circumstances in which the video had been made, for the avowed purpose of discovering who was behind Oscar's behaviour. After a number of adjournments, Walker J made such an order on 14 December 2015 ("the First Fiddler Order"). That order was made in private and included provisions designed to avoid knowledge coming to the attention of Mr Ruhan or any others who might have been responsible for this scheme as it was understood to be at that stage. Unlike the Data Sticks Order, the First Fiddler Order was made in separate proceedings commenced for that purpose, which are the proceedings in which the Norwich Pharmacal Application and Order were subsequently made.
On the return date for the First Fiddler Order, 21 December 2015, Walker J was told that Mr Fiddler had agreed to make Oscar available to provide an affidavit explaining his involvement, as a result of which the return date was adjourned until 18 January 2016.
The history to this point is set out in considerably greater detail in two written judgments of Walker J dated 22 December 2015, one in each of the two actions. The judgments were given in private, but the privacy restrictions have subsequently been removed in relation to the Data Sticks Order made in the main action.
The Norwich Pharmacal Application
Over the period between 21 December 2015 and 14 January 2016, the Claimants' representatives spoke to Oscar on a number of occasions. His true identity was now revealed as being one Oliver Mason.
The return date for the First Fiddler Order and the Data Sticks Order was Monday 18 January 2016. The applications were now in separate proceedings with privacy attaching to the history of each. In the previous week I was provided with reading lists and skeleton arguments in respect of both hearings. The skeleton argument in relation to the Data Sticks return date indicated that the Order had run its course and that the Claimants would not seek to continue the privacy which had attached to that application and its return dates. When I had substantially, although not wholly, completed my reading, the Claimants made the without notice Norwich Pharmacal Application against Mr Fiddler and Mr Anciano on 14 January 2016.
That came about because as a result of the discussions between Mr Mason and the Claimants' representatives since 21 December 2015, Mr Mason had provided a yet further account of events which was contained in his affidavit dated 14 January 2016. In that affidavit Mr Mason's account of events...
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