A v B
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 25 July 2019 |
| Neutral Citation | [2019] EWHC 2089 (Ch) |
| Court | Chancery Division |
| Docket Number | Case no.: BL-2019-001252 |
| Date | 25 July 2019 |
[2019] EWHC 2089 (Ch)
Mr Justice Mann
Case no.: BL-2019-001252
Case no.: IL-2019-000077
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
INTELLECTUAL PROPERTY LIST
David Cavender QC, Tom Cleaver, and Flora Robertson (instructed by Mishcon de Reya LLP) for the Claimant
Anthony Peto QC, Daniel Burgess (instructed by Jones Day) for the First and Second Defendants
Jane McCafferty QC, Simon Forshaw (instructed by HSF LLP) for the Third Defendant
Robert Howe QC and Andrew Trotter (instructed by Mishcon de Reya LLP) for the Claimant
Michael Hicks (instructed by JMW Sols LLP) for the First to Third Defendants
Ben Longstaff (instructed by gunnercooke) for the Fourth Defendant
Hearing date: Thursday, 18 th July 2019
Hearing date: Friday, 19 th July 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para. 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
These two cases raise a similar point involving the interrogation of imaged digital data taken during the execution of a search and seizure order (an “SSO”). At the risk of over-simplification, the question can be distilled to the following: Who goes first in inspecting and interrogating that data (after the filtering out of privileged material) – the claimant or the defendant? The point arose (by coincidence) on two successive days in the applications court when these two cases had their return dates from the original orders (an adjourned return date in the case of A v B). Because it seemed to me that the point involved a careful consideration of the nature and purpose of an SSO, and was capable of arising in a number of similar cases (it was described in the proceedings as “standard”, but I am not sure that is quite accurate), I reserved judgment on the first of those ( A v B), and when the same point arose the next day (in the HP case) I reserved that judgment as well for a joint judgment with the first.
This is that judgment. Because of the way in which the point arose, I think it is fair to say that no party had quite the opportunity to consider all the jurisdictional and analytical questions that might arise, and in particular to chart the historical development of SSOs (which might be relevant) but they have managed, I think, to put before me the relevant authorities (particularly in the HP case) which are necessary for the purposes of the review which this judgment requires.
The point has arisen in a similar manner in each of these two cases. As will appear, each SSO contained a provision entitling the claimant(s) to search disk images, but the return dates in each case occurred before the searches started. The defendants in each case have taken the opportunity to challenge that mechanism on the return date, without formal applications to vary the SSO. Sensibly, no point was taken on that.
As part of the introduction of these cases, I should say that the parties in A v B are anonymised in this judgment because I have already ordered, probably unusually, that the defendants be not identified as being subject to an SSO until their application to discharge the SSO in that case has been dealt with. I do not need to go into the reasons for that in this judgment. In due course, when the discharge application has been dealt with, I expect it will be possible for the anonymisation to be removed.
The facts of the two cases in brief
I shall need to return to a bit more detail of the facts of the two cases when I come to consider what should happen in each of them, but in sufficient outline their facts are as follows.
A v B
This is an action for breach of confidence in which it is alleged that the individual defendants, and a company which is their vehicle for apparently carrying out activities which would compete with those of the claimant, have acquired and misused confidential information of the claimants which would be capable of being of material benefit to the competing venture. The claim is based on contract and equity in the case of both individuals. Part of the evidence in support of the application for the SSO was information from someone to whom the defendants are said to have touted their business and, if true, amounts virtually to an acknowledgment to that enterprise that the defendants had confidential information of the claimants which they were in a position to deploy. An SSO was granted by a judge of this court in relation to various venues which I do not need to identify. The order provided that the defendants should allow access to the premises, containers within the premises and digital devices:
“so that [the search party] can search for, inspect, photograph, electronically copy or photocopy, and deliver into the safekeeping of the Applicants' Solicitors all the documents and articles which are listed in Schedule C to this order (“Listed Items”) or which the Supervising Solicitor believes to be Listed Items.”
Paragraph 21 of the order provides for an independent expert to take an image of any relevant digital devices and paragraph 26 provides for an inspection of the images:
“26. Any copy or image taken of an Electronic Data Storage Device will be handed over by the Independent Computer Specialist to the Supervising Solicitor who will keep it safely in his custody to the order of the court. After the search of the Premises is completed, at the instruction, and according to the directions of the Supervising Solicitor, the Independent Computer Specialist will organise the material on the copies as appropriate in order to expedite the search of their contents. The Applicants' Solicitors… and the Independent Computer Specialist shall then be entitled to search for Listed Items upon such electronic copies on condition that:
(a) the Respondent be given 24 hours written notice of such search by the Applicants' Solicitors;
(b) the search take place under the Supervising Solicitor's supervision;
(c) the Respondent and its legal advisers shall be entitled to be present at such search;
(d) a representative of the Applicants shall be entitled to be present at such search for the purpose of assisting in identifying the Listed Items…; and
(e) the Applicants' solicitors shall be entitled to take copies of any Listed Items found, subject to the Respondent's right to prevent the Applicants' solicitors from taking a copy of any part of a document which the Supervising Solicitor believes to be privileged…”
Paragraph 21 provided for the Respondent to notify the Supervising Solicitor in advance of any claim to privilege for any document on any device.
There is a dispute about the definition of Listed Items which is the subject of a separate judgment. For present purposes it is important to note that under the regime set out in paragraph 26 it is the claimant's solicitors who do the searching, albeit in the presence of the respondents' solicitors. The respondents say that that is the wrong way round, and the respondent should review the documents first as they would if this were a disclosure exercise during the course of more conventional proceedings.
Hewlett Packard v Manchester Technology Data (Holdings) Ltd
These proceedings are brought by companies in the well-known IT group and Schneider against the defendants who are companies who supply IT hardware including hardware ultimately sourced (or apparently sourced) from the claimants (“HP” for short), and against the owner of the corporate defendants. HP has brought a claim against the defendants claiming that they have been dishonestly selling parallel imports, counterfeit goods or goods which were originally sold by HP on the footing that they would be sold to specific end users and not for resale and/or into a different part of the market. The claimants say this is a bad case of very substantial sales of a large quantity of illicit goods (which they are entitled to restrain and seek compensation in respect of) over a significant period of time, but they do not know the full extent of the claim, and cannot know that until they get to see the defendants' documentation. They also wish to use the documentation in order to consider taking action against those in the supply chain who are damaging their business.
On 28 th June Morgan J made an SSO in respect of the trading premises of the defendants. As in the A v B case, the order provided for access to data storage items (physical and digital):
“… so that the [search party] can search for, inspect, photograph, electronically copy or photocopy, and deliver into the safekeeping of the Applicants' Solicitors all the documents and articles which are listed in Schedule C to this order (“Listed Items”).
Paragraph 22 of the order provided for images to be taken of any digital storge devices and for access to a number of email accounts including online message accounts and online bank accounts. Paragraph 26 provided for the independent computer specialist to index the electronic copies according to the directions of the Supervising Solicitor and then:
“The Applicants' Solicitors and the Independent Computer Specialist shall then be entitled to search for Listed Items in such Electronic Copies on the following conditions: [conditions requiring 48 hours notice to the respondents, and for the entitlement of the respondents and their legal advisers to be present at the search and for the search to take place under the Supervising Solicitor's supervision.
(d) the Applicants' Solicitors shall be entitled to...
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