ORB a.r.l.; and Others v Steven Richard Fiddler
| Jurisdiction | England & Wales |
| Judge | Mr Justice Walker |
| Judgment Date | 14 December 2015 |
| Neutral Citation | [2015] EWHC 3683 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2015-000876 |
| Date | 14 December 2015 |
[2015] EWHC 3683 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Rolls Building
Fetter Lane
London EC4A 1NL
Mr Justice Walker
Case No: CL-2015-000876
Mr James Drake QC (instructed by Stewarts Law LLP, with junior counsel as set out below) appeared for the applicants
The defendant, who was not informed of the application, was neither present nor represented
Hearing dates: 27 November (junior counsel: Ms Sarah Martin), 30 November (junior counsel: Ms Sarah Martin and Mr James Goudkamp) and 10 and 14 December 2015 (junior counsel: Ms Sarah Martin)
| A. Introduction | 2 |
| B. Events leading to the making of the order | 2 |
| C. The 14 December Fiddler order, and reasons | 3 |
| C1. The 14 December Fiddler order: general | 3 |
| C2. The content of the 14 December Fiddler order | 3 |
| C3. Reasons for the 14 December Fiddler order | 5 |
| D. Concluding observations | 6 |
A. Introduction
Note: this judgment, released publicly on 26 February 2016, sets out unchanged what was said in the "In Private" judgment giving reasons for orders made by me on 14 December 2015.
This judgment is given in private. It is to be treated as having been handed down on 14 December 2015 at the adjourned hearing of an application ("the November 2015 application") seeking relief against the defendant in the present claim, which is to be the subject of a claim form to be issued imminently.
The defendant in the present claim is Mr Stephen Fiddler. Mr Fiddler has had no notice of the hearings before me. I stress that the account given below is based on the claimants' allegations only. That account may well be rebutted by Mr Fiddler.
The wider background to the present claim lies in an extant and public commercial claim, Orb a.r.l and others v Ruhan, CL-2012-000625 ("the main action"). The immediate background to the present claim concerns events which led to an "in private" application made by the claimants in the main action on 25 September 2015 ("the September 2015 application"), the order which I made that day ("the September 2015 order"), and subsequent events. These matters are described in detail in my "in private" judgment today in the main action, [2015] EWHC 3638 (Comm).
In section B below I deal with the course of events which led me to make an order against the defendant in this claim. The contents and reasons for that order are dealt with in section C below. In section D below I set out concluding observations.
B. Events leading to the making of the order
In this section I make reference to passages in my judgment dated 14 December 2015 concerning the restored September application. As that judgment concerns purported assistance provided by a man who described himself as "Oscar" I shall refer to that judgment as the "14 December Oscar assistance judgment". In the present judgment I adopt the short forms used in the 14 December Oscar assistance judgment.
A warning of the November 2015 application appeared in paragraph 25 of Irving 2, sworn on 26 November 2015: see the final paragraph in section E3.4 of the 14 December Oscar assistance judgment. The account that was given the following day in Irving 3, and in the 27 November skeleton argument, is set out in detail in sections E3.5 and E3.6 of that judgment. Important features of that account are that Mr Fiddler approached Ms Irving, met with her and Dr Smith, and gave an account of his role in relation to Oscar. It appeared from Irving 3 that that role, according to Mr Fiddler, led him to show Ms Irving and Dr Smith a video recording, on Mr Fiddler's mobile telephone, in which Oscar appeared to allege that he had been asked by Dr Smith to participate in a charade.
Ms Irving's account of her interaction with the police is described in section E3.7 of the 14 December Oscar assistance judgment. As is apparent from section E3.8 of that judgment, at the 27 November hearing I asked whether evidence could be provided as to police awareness of what was being sought from the court, and I suggested that certain other matters be considered. The response in that regard is described in sections E4.1 to E4.3. As explained in section E4.4 I was concerned about certain aspects of that response. The matter next came before me on 10 December 2015, when I had the benefit of Irving 5. There remained matters which in my view needed to be the subject of further consideration. Those matters were reviewed at the 10 December hearing, and were further reviewed when that hearing resumed on 14 December 2015, as set out in section E6. The final terms of the order to be made by way of interim relief in the present claim, in conjunction with an application notice which was to be issued imminently in the present claim, were identified at the hearing on 14 December 2015. I shall refer to that order as "the 14 December Fiddler order".
C. The 14 December Fiddler order, and reasons
C1. The 14 December Fiddler order: general
In section C2 below I deal with the content of the 14 December Fiddler order. In that regard I mention some of the points of detail in the order and the reasons for them. As to the 14 December 2015 Fiddler order as a whole, I describe the reasons for making that order in section C3.
C2. The content of the 14 December Fiddler order
The 14 December Fiddler order was made in private. I set out below my reasons for concluding that this was an appropriate course. The order began with a penal notice. In addition to warning of the danger of contempt of court, the penal notice advised Mr Fiddler of the privilege against self incrimination. I describe in the 14 December Oscar assistance judgment contentions to the effect that self incrimination would not arise. I express no view on whether those contentions are right. It seemed to me desirable that advice as to the privilege against self incrimination should be included so that Mr Fiddler was informed that there is such a privilege and could, if appropriate, seek legal assistance in that regard.
Paragraph 1 of the order noted, among other things, that I had accepted undertakings in schedules A and B. The undertakings in schedule A were given by Mr Robson as Independent Solicitor. Those in schedule B were given by the claimants in the present claim, namely the claimants in the main action with the addition of Pro Vinci. As explained in the claim form, Pro Vinci asserted that it had been acting in its own right as well as on behalf of the claimants in the main action in reaching an agreement with Oscar, and that it was entitled to claim against Oscar both for breach of contract and for deceit. The undertakings in schedules A and B, taken as a whole, appeared to me to give appropriate protection to Mr Fiddler.
Paragraphs 1.3 and 2 of the order recorded that I had considered section 12 of the Human Rights Act 1998 and that I had identified reasons why notice should not be given to Mr Fiddler. I deal with these matters, and the "in private" status of the order, generally below.
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Richardson-Ruhan v Ruhan
...(11 February 2015, unreported). ORB ARL & Ors v Ruhan[2015] EWHC 3638 (Comm) (14 December 2015, unreported). ORB ARL & Ors v Fiddler[2015] EWHC 3683 (Comm) (14 December 2015, unreported). ORB ARL & Anor v Fiddler & Anor[2016] EWHC 361 (Comm) (26 February 2016, unreported). ORB ARL & Ors v R......