Websites: Affirm said it received the wording innocently
A Bradford law firm has failed in an application for an order to force a firm in London to reveal who provided it with web copy that was identical to its own.
Her Honour Judge Kelly, sitting as a High Court judge in Leeds, refused to grant [1] Umbrella Legal a Norwich Pharmacal order, saying it had failed to exhaust other ways to obtain the information.
In 2021, Umbrella used contractor Adnan Malik to work on with Indian company HestaBit Technologies to develop a website for car finance mis-selling claims.
After a few months, Mr Malik stopped working for Umbrella without providing any indication or prior notice; two days later, having heard a rumour that Mr Malik was now working with Affirm Legal, an Umbrella director looked at Affirm’s website and found some of the wording that had been prepared for its site.
Umbrella asked Affirm to remove the material, which it did promptly, saying it had innocently received the wording from its contractors.
Affirm agreed to provide the identity of the contractors by way of open letter but refused Umbrella’s request instead to produce a witness statement verified by a statement of truth, leading to the application for a Norwich Pharmacal order.
However, HHJ Kelly held that Umbrella failed at the first hurdle – that a wrong must have been, or arguably been, carried out.
There was, the judge observed, no evidence about who actually created or wrote the content – noting that Mr Malik had originally been retained to work specifically on a different project – and Umbrella had “simply not established that it was entitled to the copyright asserted on the evidence presented to the court”.
Even if she were wrong about that, HHJ Kelly said the application did not pass the second condition for making an order, necessity.
Affirm had not refused to tell Umbrella – it just refused to provide a witness statement. While accepting that a witness statement would put Umbrella in an “evidentially stronger position”, HHJ Kelly said it should have accepted Affirm’s offer to provide the information in open correspondence “and then considered its position”.
Further, Umbrella had narrowed down the likely provider of the information to either HestaBit or Mr Malik and could apply for pre-action disclosure under CPR 31.16.
“It is not at all unusual to seek pre-action disclosure against one or both of two possible defendants when the claimant is unaware who is more likely to be at fault. In those circumstances, it cannot be said that the defendant is the only practical source of the information required.
“Perhaps more fundamentally, and in any event, there is no evidence that the claimant has written to either Mr Malik or to HestaBit putting its allegations concerning the content provided to the Defendant.
“Without taking those obvious steps, I accept that it cannot be said that there is a need for an order.”
The judge went on to hold that, even if she were wrong on this too, she would not exercise her discretion to make the order, given the refusal of the open offer and failure to exhaust all the possibilities for obtaining the information.