Churngold Recycling Ltd v Environment Agency

JurisdictionEngland & Wales
JudgeLord Justice Moses,Lady Justice Gloster,Lord Justice Vos
Judgment Date04 July 2014
Neutral Citation[2014] EWCA Civ 909
CourtCourt of Appeal (Civil Division)
Date04 July 2014
Docket NumberCase No: A2/2013/3283

[2014] EWCA Civ 909

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRISTOL MERCANTILE COURT

His Honour Judge Havelock-Allan QC

2BS41149

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Moses

Lady Justice Gloster

and

Lord Justice Vos

Case No: A2/2013/3283

Between:
The Environment Agency
Appellant
and
Churngold Recycling Ltd
Respondent

Mr Stephen Hockman QC and Mr Andrew Marshall (instructed by Environment Agency Legal Services) for the Appellant

Mr Peter Blair QC and Mr Gerard McMeel (instructed by Osborne Clarke Solicitors) for the Respondent

Hearing date: 10 th April, 2014

Lord Justice Moses
1

This appeal should have been concerned with whether a court is entitled to require the Environment Agency to return copies of documents and digital material in circumstances where those documents do not comprise or constitute records within the meaning of s.108 of the Environment Act 1990. The appeal has, mistakenly, been confined to the question whether the tort of conversion may be extended to copies of documents or intangible goods. It is now too late to focus on the logically prior question concerning the return of material obtained by an unlawful exercise of statutory powers.

2

The facts and procedural history of this matter, fully recorded by His Honour Judge Havelock-Allen QC, from whose judgment the Environment Agency appeals, will explain why the appeal has become so limited.

3

In his judgment dated 2 October 2013, based on the assumption that the material was copied outwith the powers of the Environment Agency, the judge ruled that in an action for conversion he had jurisdiction to order the delivery up of all copies of such material. Accordingly, pending determination as to whether the material was, in fact, copied in excess of the Agency's powers, the material would not be released to the Agency's investigators and instead would remain quarantined.

4

During the course of a criminal investigation arising out of the removal of hazardous waste from various locations, on 25 September 2012 the Environment Agency purported to exercise the powers conferred by s.108 of the Environment Act 1995 at Churngold's premises in Avonmouth and Hallen. Warrants had previously been issued by the Bristol Magistrates Court pursuant to Schedule 18 of the 1995 Act and there has been no legal challenge to those warrants.

5

The volume of documentation that the Environment Agency's officers thought it needed to inspect for the purpose of the investigation was substantial. Electronically held information was copied on site by electronic transfer to storage media owned or controlled by the Environment Agency and in excess of 700,000 paper documents were temporarily removed from the premises for electronic scanning. The powers to investigate, inspect and copy are contained in s.108 of the Environment Act 199For the purposes of performing its functions as an enforcing authority (defined in s.108(15)) a person suitable to the authority may be authorised in writing to exercise any of the powers specified in s.108( 4) (s.108(1)). Those powers include the power to enter at any reasonable time premises which the person has reason to believe it is necessary to enter (4(a)) and to make such examination and investigation as may in any circumstances be necessary (4(c)). By s.108(4)(k) the person authorised by the Agency is empowered:-

"(k) to require the production of, or where the information is recorded in computerised, the furnishing of extracts from, any records –

(i) which are required to be kept under the pollution control enactments for the enforcing authority under whose authorisation he acts, or

(ii) which it is necessary for him to see for the purposes of an examination or investigation under (c) above,

(iii) and to inspect and take copies of, or of any entry in, records;"

6

Churngold issued Particulars of Claim on 26 November 2012 asking for delivery up of original documents and copies. There can be, and was, no dispute but that the claim was for conversion. In the brief details of claim it is stated that Churngold was seeking an order for delivery up of goods "pursuant to s.4 of the Torts (Interference with Goods) Act 1977". There was a claim for wrongful breach of the Computer Misuse Act 1990 which has not been pursued. By paragraph 8 of the Particulars of Claim:-

"By reason of the aforesaid unlawful seizure and failure to deliver up all documents and copies of the claimant's material the defendant has converted the same and the claimant has thereby suffered loss and damage."

7

Following the issue of proceedings in November 2012, Churngold made an immediate interlocutory application for the return of all materials arising from what it said was the Environment Agency's unlawful seizure. Rather than contest this application Churngold and the Environment Agency entered into a compromise agreement recorded by consent in an order of the court dated 5 December 2012. By consent, Churngold was to be provided with copies of all of that which the Environment Agency had had scanned, as well as digital copies of computer material that had been copied on-site by electronic transfer, subject to particular arrangements where legal professional privilege was in dispute.

8

The digital or electronic copies were to be quarantined until further agreement by the parties or further order (paragraphs 2 and 3). Churngold was to notify the Environment Agency in writing of any material as to which it claimed to be entitled to withhold production (paragraph 4). Where any claim by the respondent to withhold production was on the grounds of legal professional privilege it was only to be made on legal advice specifying the type of privilege asserted (paragraph 4). Where Churngold did not claim to be entitled to withhold production under paragraph 4, the parties were jointly to instruct those holding the quarantined material to release it to the Environment Agency. Where Churngold claimed to be entitled to withhold production in relation to legal professional privilege, the appellant was to instruct an independent lawyer to inspect the material and in the event that the parties were unable to agree the validity of Churngold's claim, the matter was to be referred to a high court judge for resolution (paragraph 6).

9

Subsequently, by letter dated 19 February 2013, Churngold's solicitors stated that the basis for its claims for materials to be withheld were not...

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    ...been. As to this, see most recently per Lord Walker in OBG Ltd v Allan [2007] UKHL 21, [2008] 1 AC 1 at [275] …" 72 In Environment Agency v Churngold Recycling Ltd [2014] EWCA Civ 909, the question before the Court of Appeal was whether the tort of conversion may be extended to copies of......
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    ...control over the files stored on those servers. 395 396 397 398 At 1277–1278. See for example Environment Agency v Churngold Recycling [2014] EWCA Civ 909, Env LR 13 at [16] and [18]. See also Capita Plc v Darch [2017] EWHC 1248 (Ch), [2017] IRLR 718 at [71]. People v Aleynikov 148 AD 3d 77......
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