If ever a concrete illustration were needed of the dramatic perils of being held to have failed to comply with the duties owed to the Court when making an ex parte application then it has been provided with the judgment of Andrew Smith J in Dar Al Akan and Others v Al-Sayed Bader Hashim Al Refai and Others  EWHC 3539 (Comm)- now required reading for any lawyers whose clients may be entertaining thoughts of making such applications.
The judge set aside orders made on ex parte applications by the claimant companies in proceedings in whcih they advance claims of breach of confidence and unlawful interference with business interests. The orders in question had been disclosure, non-disclosure and document delivery orders as well as a worldwide freezing order.
The core issue raised was that those orders had been obtained following a previous application to use computer hard drives containing emails from one of the defendants in any application for relief. The Court had been told that these drives had been sent to the claimants anonymously. The claimants had given a preservation undettaking. However a forensic examiner confirmed that deleted material on the drives indicated that they might have originated from one of the claimants and involved hacking of the defendant’s emails.
The judge concluded that material had been deleted in the knowledge that it was a breach of the preservation undertaking so as to conceal the fact that the drives had in fact been in the claimants’ possession before the date that the Court had been told. He was not persuaded that the defendants would suffer any prejudice as a result. Nevertheless he set aside the orders because the Court could not excuse deliberate breaches of orders and undertakings.
Interestingly, one of the findings of the judge was that the Court should have had its attention drawn to section 12(3) of the Human Rights Act 1998 in the circumstances that one of the orders that had been obtained had infringed upon the content of a website operated by one of the defendants. Section 12(3) deals with “Freedom of expression”. It should have been drawn to the judge’s attention when the ex parte application was made not because it was engaged, but simply because it might have been.