Aviva Insurance Ltd v David Oliver
| Jurisdiction | England & Wales |
| Judge | Eyre |
| Judgment Date | 11 November 2019 |
| Neutral Citation | [2019] EWHC 2824 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: E40MA084 |
| Date | 11 November 2019 |
[2019] EWHC 2824 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS IN MANCHESTER
CIRCUIT COMMERCIAL (QB)
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
HIS HONOUR JUDGE Eyre QC
Case No: E40MA084
Brian McCluggage (instructed by Horwich Farrelly Solicitors) for the Claimant
The Defendant appeared in person
Hearing dates: 14 th – 16 th October 2019
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.
HH Judge Eyre QC:
Introduction .
The Claimant is an insurance company which as part of its operation provided motor insurance to policy holders. Kirstie Carruthers was an employee of the Claimant and in 2013 and 2014 she accessed the Claimant's computer systems to obtain the personal details of policy holders who had reported to the Claimant accidents in which they had been involved but which had not been their fault. Miss. Carruthers then provided those details (or at least some of them) to the Defendant in return for payment. The Defendant in turn sold the details on to claims management companies. There is no dispute that Miss. Carruthers was acting wrongfully. The Claimant says that the Defendant was aware of this and is liable to the Claimant as a consequence. The Defendant denies liability saying that he was not aware that Miss. Carruthers had obtained this material wrongfully.
The Background History .
There was little dispute about the background to the claim but there was dispute about the inferences to be drawn from that history and, in particular, as to the Defendant's state of mind.
Miss. Carruthers was employed by the Claimant from September 2001 and by 2013 she was a team manager at its Stretford claims office. In that rôle she had access to the Claimant's computer systems. On a daily basis the Claimant sent her spreadsheets containing the details of policyholders who had the previous day reported their involvement in road traffic accidents but who had not taken up a service such as credit hire offered by the Claimant. The spreadsheets gave details of the policyholder's name, policy number, and vehicle registration number. The purpose of providing this information to Miss. Carruthers was so that the team she headed could contact the policyholder and offer again the service which the policyholder had declined. Miss. Carruthers's access to the Claimant's computer systems meant that she could obtain further details in relation to those policyholders and in particular their telephone numbers and the information they had provided about the accidents.
There is a market in which payment is made for information about those who have been involved in road traffic accidents and in particular for data about those who were not at fault in such accidents. Claims management companies and others will pay for such information because it enables them to contact potential claimants offering their services. The closer in time to the accident the information is being sold and the more detailed it is the more valuable it is. Similarly the higher the proportion of those not at fault for an accident in any given tranche of data then the more valuable that tranche is. This is because those are factors which enhance the purchasing claims management company's prospects of being able to persuade the persons in question to accept their services. Information about those who have been involved in road traffic accidents is available, whether legitimately or more frequently illegitimately, from recovery and storage agents, repair garages, and car hire companies. However, the information from such sources is likely to be less complete and further removed in time from the accident than that in the possession of an insurance company. The Defendant did not substantially challenge this account of the market which was set out in the evidence of Benjamin Challinor for the Claimant (and Mr. Challinor was not cross-examined on this part of his evidence). However, when he was cross-examined the Defendant did contend that it was his experience that credit hire and recovery companies could be in possession of such information within a short time of the accident even, he asserted, before an insurance company.
Miss. Carruthers accessed the Claimant's systems and obtained fuller details of the policyholders whose names she had been sent. She did this shortly after those names were sent to her and so shortly after the policyholders had contacted the Claimant and, therefore, within a very short time of the relevant accident. The details which Miss. Carruthers obtained included the policyholders' names; policy numbers; and contact details together with the date of the accident.
Having accessed the Claimant's computer systems Miss Carruthers composed a spreadsheet into which she inserted the policyholder's name, policy number (in a column headed “pol”), the make and model of their car, and the policyholder's phone number. She then transmitted that spreadsheet to others doing so by photographing the spreadsheet on her mobile phone and then transmitting the resulting photographs and receiving payment for doing so. Those who received the data or others to whom they had in turn sold it used the data to contact the Claimant's policyholders. That contact was made by telephone using the numbers which Miss. Carruthers had provided and with the callers seeking to persuade the policyholders to engage their services. On occasion those phoning claimed to be calling on behalf of the Claimant or to have an arrangement with the Claimant and to have been provided with the policyholder's contact details by the Claimant. It is of note that all the policyholders whose information Miss. Carruthers passed on had told the Claimant that they had not been at fault in relation to the accident they were reporting.
Although Miss. Carruthers originally acted in conjunction with her then partner, John Sproston, when their relationship ended she continued to take the data and to sell it on her own account.
Miss. Carruthers sold data to the Defendant from September 2013 until her arrest in September 2014 (with an interval between April and June 2014 when she was away from work recovering from a broken leg). The Defendant did not accept that he was the sole person to whom Miss. Carruthers sold information but the relevant point for current purposes is that he accepted that she did supply him with data. The Defendant was originally working through KMG Manchester Ltd (“KMG”) and passed the information on through them. In February 2014 he parted company with that operation and sold the data on his own account. The Defendant said that Miss. Carruthers then approached him saying that she had separated from Mr. Sproston and offering to supply him directly with the information on the same terms as had applied previously. The Defendant accepted that offer and supplied the information provided by Miss. Carruthers to Glynis Firth trading as GPM Marketing Consultants and potentially to others. He rendered invoices as DOBC Ltd, a company which he had incorporated on in July 2013, but requested payment to be made into his personal bank account. There was dispute as to the nature of the relationship between the Defendant and KMG with the Defendant contending that he was an employee but with the Claimant suggesting that he operated as an independent contractor or as part of a joint venture. There were also disputes as to precisely to whom the Defendant sold the data; as to the precise amounts received; as to whether and in what circumstances the Defendant was sharing the sums received; and as to whether the Defendant was himself involved in or overseeing the use made of the data by way of calls to policyholders. The Claimant says that the lack of clarity on these matters is because of the Defendant's failure to give full information about his dealings with the data. What is clear is that the Defendant made payment to Miss. Carruthers (the Defendant does not dispute the Claimant's figure of £16,200 as a minimum for the sums paid to Miss. Carruthers); that he arranged for the data provided by her to be sold on to others; and that he received very substantial sums for doing so. The Claimant says that the Defendant received at least £370,742 from selling the data on. This is based on an analysis of the Defendant's disclosed bank statements for the period October 2013 to November 2014 identifying payments into those accounts from sources believed to be or to be linked to claims management companies. The Claimant says that the Defendant's failure to make full disclosure of his financial dealings indicates that the sum received might have been greater. In that regard it is of note that the Defendant said that he was provided with neither a P60 or P45 form by KMG and that he provided no details of accounts, tax returns or the like. He accepted that he had not yet filed any tax returns in respect of the relevant period even though he had received substantial sums of money saying that he had been awaiting the outcome of the criminal proceedings against him before doing so. He also accepted that he had not registered for VAT purposes when trading on his own account and receiving substantial payments saying that he had overlooked doing so.
The actions of Miss. Carruthers came to light after one of the Claimant's policyholders who had been approached by a claims management company carried out her own investigation. The material she obtained enabled Miss. Carruthers to be identified as the employee of the Claimant who had accessed and sold on her data. The Claimant's systems had previously been wrongfully accessed by another employee, Matthew Cooper who had sold on the...
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