October 17, 2024

University and College Union -v- Person(s) Unknown (order)

CivilHigh CourtKing's Bench DivisionMedia and Communications ListOrder

Amended by DHCJ Richard Spearman KC dated 23rd October 2024 and under the slip-rule CPR Rule 40.12

Claim number: KB-2024-003440

In the High Court of Justice
King’s Bench Division
Media and Communications List

In private

17 October 2024

Before:

Deputy High Court Judge Richard Spearman KC

Between:

University and College Union -v- Person(s) Unknown

-v-

Person(s) Unknown
responsible for obtaining data from the Applicant’s IT systems on or about 12 August 2024 to 16 August 2024 and/or who has disclosed or is intending or threatening to disclose the information thereby obtained

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Order

PENAL NOTICE

IF YOU THE RESPONDENT DISOBEY THIS ORDER YOU MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED OR FINED OR HAVE YOUR ASSETS SEIZED.

ANY PERSON WHO KNOWS OF THIS ORDER AND DISOBEYS THIS ORDER OR DOES ANYTHING WHICH HELPS OR PERMITS ANY PERSON TO WHOM THIS ORDER APPLIES TO BREACH THE TERMS OF THIS ORDER MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.

NOTICE TO ANYONE WHO KNOWS OF THIS ORDER

You should read the terms of the Order and the Practice Guidance on Interim Non- Disclosure Orders very carefully. You are advised to consult a solicitor as soon as possible. This Order prohibits you from doing the acts set out in Paragraphs 7 and 10 of the Order and obliges you to do the acts set out in Paragraphs 8, 9 and 11 of the Order. You have the right to ask the Court to vary or discharge the Order. If you disobey this Order you may be found guilty of contempt of court and you may be sent to prison or fined or your assets may be seized.

THIS ORDER

1. This is an Injunction, with other orders as set out below, made against the Defendant(s) or each of them on 17 October 2024 by the Judge identified above (the Judge) on the application (the Application) of the Claimant. The Judge:
   (a) read the witness statement referred to in Confidential Schedule 1;
   (b) heard from Leading and Junior Counsel for the Claimant;
   (c) accepted the undertakings set out in Schedule A at the end of this Order;
   (d) considered the provisions of the Human Rights Act 1998 (HRA), section 12.
   
   
2. This Order was made at a hearing without notice to those affected by it, the Court having considered CPR 25.3(1) and section 12(2) of the HRA and being satisfied that there are compelling reasons for notice not being given, namely: the Defendant’s (or each of them) identity is unknown and s/he/it is blackmailing the Claimant. The Defendant or each of them (and anyone served with or notified of this Order) has a right to apply to the Court to vary or discharge the Order (or so much of it as affects them): see paragraph 17 below.

ACCESS TO DOCUMENTS

3. Upon the Judge being satisfied that it is strictly necessary:
   (a) (i) no copies of any confidential schedules or exhibits to any statements of case or orders or other documents; and
   (ii) no copies of the confidential witness statements or confidential exhibits to witness statements, will be provided to a non-party without further order of the Court.
   (b) Any non-party other than a person notified or served with this Order seeking access to, or copies of the abovementioned documents, must make an application to the Court, proper notice of which must be given to the other parties.

SERVICE OF DOCUMENTS

4. Upon the Court being satisfied that England and Wales is the proper place in which to bring this claim, the Claimant has, if required, permission to serve the Claim Form and any other documents outside of the jurisdiction pursuant to CPR
   6.36 and 6.37(3) and PD 6B (21) and CPR 6.38.
   
   
5. Pursuant to CPR 6.6, 6.15, 6.27, 6.36 and/or 6.37(5)(b) and/or 6.38 and/or 6.40, the Claimant has permission to serve the Claim Form and the intended Particulars of Claim (in redacted form) and any other documents, including this Order and any other documents for this application, on the Defendant by providing the documents via the means identified in Confidential Schedule 2 and such service will be deemed to be effective on the date on which the communication is sent, with the time for filing an acknowledgement of service, admission or defence to be calculated by reference to the deemed date of service and by reference to the periods specified in PD 6B paragraphs 6.3 and 6.4 and the relevant location in the Table in PD 6B, save that:
   
   unless or until the Defendant or each of them provides to the Claimant’s solicitors his/her full name and an address for service, the Claimant is only required to serve on, or provide to, the Defendant or each of them, (i) this Order, excluding Confidential Schedule 1, (ii) the Claim Form in redacted form, (iii) the Application Notice in redacted form, and (iv) the intended Particulars of Claim to follow in redacted form. Any documents bearing the names of individuals at University and College Union or identifying Counsel may be served on the Defendant with the names redacted.
   

6. The Claim Form should be served as soon as reasonably practicable and in any event by 17 November 2024 at the latest, save that there shall be liberty for the Claimant to apply to the Court in the event that an extension is necessary. Any such application must be supported by a witness statement. Such application may be made by letter, the Court having dispensed with the need for an application notice.

INJUNCTION

7. Until 14 November 2024 (the Return Date) the Defendant or each of them must not use, publish or communicate or disclose to any other person (other than (i) by way of disclosure to legal advisers instructed in relation to these proceedings (the Defendant’s or each of their legal advisers) for the purpose of obtaining legal advice in relation to these proceedings or (ii) for the purpose of carrying this Order into effect) all or any part of the information referred to in Confidential Schedule 2 to this Order (the Information).
   
   
8. The Defendant or each of them must by 4pm on 25 October 2024 (i) deliver up and/or delete and/or destroy the Information in his/her possession, custody or control and (ii) provide to the Claimant’s solicitors via the email address in paragraph 22 below his/her full name and an address for service.
   
   
9. The Defendant or each of them must by 4pm on 25 October 2024 provide to the Claimant’s solicitors a witness statement with a statement of truth explaining (i) that s/he has delivered up and/or deleted and/or destroyed the said Information and explaining how s/he has done so; and (ii) giving details about whether s/he has published or communicated or disclosed any of the Information to a third party and identifying any said third party and their contact details.

PROTECTION OF HEARING PAPERS

10. The Defendant or each of them must not publish or communicate or disclose or copy or cause to be published or communicated or disclosed or copied any witness statements and any exhibits thereto and information contained therein that are made, or may subsequently be made, in support of the Application or the Claimant’s solicitors’ notes of the hearing of the Application or the Claimant’s skeleton argument (the Hearing Papers), provided that the Defendant or each of them shall be permitted to copy, disclose and deliver the Hearing Papers to the Defendant’s or each of their legal advisers for the purpose of these proceedings.
    

11. The Hearing Papers must be preserved in a secure place by the Defendant’s legal advisers on the Defendant’s behalf.
    
    
12. Subject to paragraph 7 above, the Defendant shall be permitted to use the Hearing Papers for the purpose of these proceedings provided that the Defendant’s or each of their legal advisers shall first inform anyone to whom the said documents are disclosed of the terms of this Order and, so far as is practicable, obtain by signing an undertaking as set out in Schedule B their written confirmation that they understand and accept that they are bound by the same.

PROVISION OF DOCUMENTS AND INFORMATION TO THIRD PARTIES

13. The Claimant shall be required to provide to the legal advisers of any third party and where unrepresented, the third party, served with advance notice of the application or a copy of this Order and who the Claimant know or believe are in possession of or have access to the Information, promptly upon request, and upon receipt of their written irrevocable undertaking to the Court to use those documents and the information contained in those documents only for the purpose of these proceedings as set out in Schedule B: a copy of the Hearing Papers and any materials read by the Judge, including material read after the hearing by the Judge or in compliance with this Order. In both cases, the Claimant can, if so advised, withhold confidential exhibits or schedules.

HEARING IN PRIVATE

14. The Judge considered it strictly necessary, pursuant to CPR 39.2(3)(a), (c), (e) and/or (g), to order that the hearing of the Application be in private and there shall be no reporting of the same save for any judgment handed down in public.

PUBLIC DOMAIN

15. For the avoidance of doubt, nothing in this Order shall prevent the Defendant or each of them from publishing, communicating or disclosing such of the Information, or any part thereof, as was already in, or that thereafter comes into, the public domain in England and Wales (other than as a result of breach of this Order or a breach of confidence or privacy).

COSTS

16. The costs of and occasioned by the Application are reserved.

VARIATION OR DISCHARGE OF THIS ORDER

17. The parties or anyone affected by any of the restrictions in this Order who provides his or her name and address for service may apply to the Court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first give written notice to the Claimant’s solicitors at the address in paragraph 22. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Claimant’s solicitors in advance. The Defendant or each of them may agree with the Claimant’s solicitors and any other person who is, or may be bound by this Order, that this Order should be varied or discharged, but any agreement must be in writing.

INTERPRETATION OF THIS ORDER

18. A Defendant who is an individual who is ordered not to do something must not do it himself/herself or in any other way. S/he must not do it through others acting on his/her behalf or on his/her instructions or with his/her encouragement.
    
    
19. A Defendant which is not an individual which is ordered not to do something must not do it itself or by its directors, officers, partners, employees or agents or in any other way.

PERSONS OUTSIDE ENGLAND AND WALES

20. (1) Except as provided in paragraph (2) below, the terms of this Order do not affect or concern anyone outside the jurisdiction of this Court.
    (2) The terms of this Order will affect the following persons in a country or state or international waters outside the jurisdiction of this Court –
    (a) the Defendant or his/her officer or agent appointed by power of attorney;
    (b) any person who –
    (i) is subject to the jurisdiction of this Court;
    (ii) has been given written notice of this Order at his/her residence or place of business within the jurisdiction of this Court; and
    (iii) is able to prevent acts or omissions outside the jurisdiction of this Court which constitute or assist in a breach of the terms of this Order; and
    (c) any other person, only to the extent that this Order is declared enforceable by or is enforced by a court in that country or state.

PARTIES OTHER THAN THE CLAIMANT AND THE DEFENDANT

21. Effect of this Order
    It is a contempt of court for any person notified of this Order knowingly to assist in or permit a breach of this Order. Any person doing so may be imprisoned, fined or have their assets seized. For the avoidance of doubt, any person notified of this Order must not must not use, publish or communicate or disclose to any other person (other than (i) by way of disclosure to legal advisers instructed in relation to these proceedings for the purpose of obtaining legal advice in relation to these proceedings or (ii) for the purpose of carrying this Order into effect) all or any part of the information referred to in Confidential Schedule 2 to this Order.

SCHEDULE A

UNDERTAKINGS GIVEN TO THE COURT BY THE CLAIMANT

1. If the Court later finds that this Order has caused loss to the Defendant, and decides that the Defendant should be compensated for that loss, the Claimant will comply with any order the Court may make.
   
   
2. If the Court later finds that this Order has caused loss to any person or company (other than the Defendant) to whom the Claimant has given notice of this Order, and decides that such person should be compensated for that loss, the Claimant will comply with any Order the Court may make.
   
   
3. On the return date the Claimant will inform the Court of the identity of all third parties that have been notified of this Order. The Claimant will use all reasonable endeavours to keep such third parties informed of the progress of the action insofar as it may affect them, including, but not limited to, advance notice of any applications, the outcome of which may affect the status of the Order.
   
   
4. If this Order ceases to have effect or is varied, the Claimant will immediately take all reasonable steps to inform in writing anyone to whom s/he has given notice of this Order, or whom s/he has reasonable grounds for supposing may act upon this Order, that it has ceased to have effect in this form.
   
   
5. Subject to paragraphs 5 and 6 of the Order, the Claimant will serve on the Defendant and each of them the application notice, evidence in support and this Order as soon as practicable.

SCHEDULE B

DRAFT OF UNDERTAKING TO BE GIVEN TO THE COURT PURSUANT TO PARAGRAPHS 12 AND 13 OF THE ORDER

1. I, [insert name, occupation] [for and on behalf of ….] (hereinafter ‘the receiver’) promise than in consideration of the Claimant disclosing the material to the receiver, the receiver: will preserve the material in a secure place; use any material or information contained therein, or derived from such material or information, only for the purposes of the Proceedings except where

(a) The information has been read to or by the court or referred to, at a hearing which has been held in public;
(b) The court gives permission; or
(c) There is an agreement in writing by the Claimant and by any other person who claims to be entitled to rights of property, privacy or confidentiality in respect of the information or the documents in which it is recorded;

and will only copy, disclose or deliver the material, or information contained therein, or derived from such material or information, to the receiver’s legal advisers or as required by law, by order of the Court or by written agreement of the Claimant and by any other person who claims to be entitled to rights of property or privacy or confidentiality in respect of the information or the documents in which it is recorded.

2. Save as provided in paragraph 1 of this Schedule, this undertaking is irrevocable and shall continue in force both before and after the conclusion of the Proceedings.
   
   
3. The receiver will give to the court an undertaking in writing in the same terms as herein, as soon as a Judge is available to receive that undertaking.
   
   
4. For the purpose of this undertaking,
   “Material” refers to the material identified in paragraphs 12 and 13 and Confidential Schedule 1 of the Order;
   “Claimant” includes the intended Claimant; “Proceedings” means the proceedings identified above.
   
   
5. For the avoidance of doubt, this promise does not apply to information which is, or shall have come into, the public domain (as defined in paragraph 15 of the Order).

SCHEDULE C

Details of who the Claimant has given advance notice of the application to, including how and when and by what means this was done.

Not Applicable.

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