On 23 June 2023 the court also made a Norwich Pharmacal Order ("NPO") against Xenforo Limited requiring this company to deliver up information in its possession which identified or assisted in identifying the operators of Tattle Life and the proper defendants.
In September 2022, the first plaintiff was engaging directly with Nardello & Co LLP ("Nardello"), an internationally renowned investigations firm, seeking to identify a woman referred to as "Helen W" who was at that time believed to be an administrator of the website. On 6 October 2022 Nardello provided its business proposal to the first plaintiff. By 11 October, solicitors in the firm of Gateley Legal had become involved and a formal letter of engagement was sent by Rory Lynch of that firm on 17 October 2022.
Discovery has revealed emails passing between the first plaintiff and a confidential source who appears to have been working for Xenforo, a forum software provider used by Tattle Life until December 2021. The first of these was dated 22 March 2023 but it was clearly preceded by previous email correspondence which has not been located as it is believed to have involved a different email address. The emails indicate the source has identified an IP address said to be hosting the Tattle Life site. The first plaintiff asked if he should proceed with a court order against Xenforo and is advised that he should.
The pre-proceedings communications
[19] On 14 April 2023, the first plaintiff sent an email to Nardello in the following terms:
"We have an email and an IP address for tattle owners FYI."
[20] Accompanying this email were a series of Xenforo purchase orders, dated between 2018 and 2021, which reveal the name Sebastian Bond, the post code BH**
* and two email addresses, 5****@gmail.com and
bastian.durward@nestandglow.com.
[21] On 24 April 2023, the first plaintiff emailed his source stating, incorrectly, that his legal team had made an application to court for a production order. Later that same evening the source sent a message as follows:
"So we have a name which is Sebastian Bond. This we believe should match the card which was used to pay for the tattle license including a Poole post code which should match the card billing address."
[22] Shortly thereafter in a further email it was said:
"The existing site is apparently associated with Lime Goss but no such entity exists as far as we can tell. But Sebastian Bond comes up as a director for Yuzu Zest. Maybe a tenuous link but worth looking into."
[23] By 26 April 2023, the first plaintiff is able to tell his source that progress had been made on Sebastian Bond to the extent that "It feels like we are almost there."
[24] On 1 May 2023, the first plaintiff indicated that the NPO application was drafted and that they had been working on addresses for Bond. On 4 May 2023, at 0621 hours, the source emailed stating that Bond had paid Xenforo using a Starling Bank debit card, which was linked to a particular address in Poole, Dorset.
The first ex parte application
[30] The first application made by the plaintiffs was grounded on an affidavit from their solicitor, Peter Barr, sworn on 20 June 2023. It set out in some detail the alleged tortious acts relied upon by the plaintiffs. It stressed that the plaintiffs would be unable to fully enforce their legal rights until the real identities of the defendants were known, and that any RRO would only be for a short period until this was revealed. The affidavit also deposed as to the need for a NPO against Xenforo who had indicated that it had details which would assist in this identification and that they were willing to provide such information but required a court order. It also stated that the plaintiffs had instructed Nardello and they had indicated that the Xenforo information was likely to be of assistance in identifying the defendants. However, there is no reference whatsoever to the Nardello report dated 6 June 2023 addressed to the plaintiffs' solicitors or the information contained therein about Bond, the address in Poole, the payments to Xenforo or the surveillance operation.
[31] The plaintiffs also swore affidavits addressing the nature of the abuse they had been subject to and its direct effects on their lives. They did not address the source or the efforts to identify the operator of the website, including the identification of Bond by Nardello.
[32] At the hearing on 23 June 2023, Friedman J asked about the nature of the RRO and was told by counsel that this was likely to be of short duration until the relevant information had been received from Xenforo and the relevant persons identified. There was no mention at that hearing of either Sebastian Bond or Yuzu Zest Limited.
[33] On 28 June 2023, Xenforo responded to the NPO, providing the documents sought. These included references to the email addresses above and also to another, c*******@gmail.com. Mr Darby of Xenforo commented:
"I believe there is concrete and actionable information contained within this data production and I wish you and your client well in your pursuit of Sebastian Bond."
[34] On the same date, Mr Lynch communicated this to Nardello and commented:
"We can use that as evidence before the Court to apply to add the culprit as the Defendant to our legal proceedings and also identify his contact details (such as home address) for service and the court record."
The third ex parte application
[43] Prior to the hearing of the assessment of damages, a fourth report was prepared by Nardello and sent to the plaintiffs' solicitors on 13 October 2023. It repeated the "high degree of certainty" conclusion in relation to Bond's link to tattle.life. It also included an addendum in relation to Yuzu Zest Limited and stated:
"It is plausible that Yuzu Zest Ltd is a company used to receive revenue from the monetisation of tattle.life"
[44] A fifth Nardello report was produced on 31 October 2023, expanding on the information relating to Yuzu Zest and the need for further disclosure orders.
[45] On 6 November 2023, the first plaintiff emailed his source asking whether Xenforo would have the debit card details used to buy the Tattle Life software since he was looking to deliver this to the courts. The answer was that they would only have the last four digits of the card number.
[46] A sixth Nardello report was forthcoming, dated 29 November 2023, which was identical to the one of 31 October save for a reference to Starling Bank as another candidate for a disclosure order.
