Fairstar Heavy Transport NV v 1 Philip Jeffrey Adkins and Another
|England & Wales
|Lord Justice Mummery,Lord Justice Patten,Lady Justice Black
|19 July 2013
| EWCA Civ 886
|Case No: A1/2012/3063
|Court of Appeal (Civil Division)
|19 July 2013
 EWCA Civ 886
Lord Justice Mummery
Lord Justice Patten
Lady Justice Black
Case No: A1/2012/3063
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
THE HON MR JUSTICE EDWARDS-STUART
Royal Courts of Justice
Strand, London, WC2A 2LL
MR PETER SUSMAN QC and MR JAMES PALMER (instructed by Ince & Co) for the Appellant
MR RICHARD SPEARMAN QC (instructed by Schillings) for the First Respondent
Hearing date: 30 April 2013
The issue on this appeal is whether the appellant company is entitled to an order requiring its former Chief Executive Officer, after the termination of his appointment, to give it access to the content of emails relating to its business affairs. The relevant emails, which are stored on his personal computer in England, were sent or received by him on behalf of the company.
Fairstar Heavy Transport NV (Fairstar) was incorporated in the Netherlands and is based in Rotterdam. It wants to retrieve and read its electronic business correspondence stored on the personal computer of its former Chief Executive Officer, Mr Philip Adkins. The computer is held by his solicitors (Schillings) in accordance with an undertaking to the court. Fairstar seeks an order for inspection of the content of the relevant emails, initially by an independent IT person. Ultimately it wants to be given copies of the emails. Fairstar asserts that access to the electronic correspondence is essential for the conduct of its business.
At end of the hearing below Counsel reached agreement on the wording of a preliminary issue. Edwards-Stuart J, who had asked counsel to produce a form of words stating clearly the issue that he was invited to determine summarily, set out the agreed wording in paragraph 11 of his judgment:
"Does Fairstar have an enforceable proprietary claim to the content of the emails held by Mr Adkins (and/or Claranet) in sofar as they were received or sent by Mr Adkins acting on behalf of Fairstar?"
The words "enforceable proprietary claim to the content of the emails" are a description of Fairstar's claim. They make it clear that it is neither a pure contractual claim nor a mere procedural step (e.g. disclosure of documents) in substantive proceedings based on another cause of action. The claim to property in "content" was the main area of contention.
There is no express contract of employment between Mr Adkins and Fairstar, which contracted for his services under a written agreement with a company controlled by Mr Adkins. His contract of employment is with his creature company. A clause in the written contract between that company and Fairstar provides that the contract is governed by Dutch law and that the Dutch Courts have exclusive jurisdiction.
When the judge gave his answer to the preliminary question agreed and drafted by counsel he naturally did so in the light of the way in which they had argued the issue.
For Fairstar the case was that the content of emails created by, or coming into the possession of, an agent while acting for the principal was the property of the principal and remained so after the termination of the agency relationship.
For Mr Adkins the argument was that the content of the emails was "information", that information is not recognised by the law as property and that the purely proprietary claim to the content was for that reason misconceived.
Edwards-Stuart J gave the answer "No" to the question in  above. He concluded that the content of the emails was information, which was not capable of being "property." He dismissed the action on the basis that Fairstar had failed to establish an enforceable proprietary claim. Nothing else was left in the action for decision by the English Courts. Fairstar appeals from the order to that effect dated 6 December 2012 following the reserved judgment handed down on 1 November 2012. Tomlinson LJ granted permission to appeal.
Mr Peter Susman QC appearing for Fairstar accepted that the preliminary issue was not based on any allegation by Fairstar of wrongful conduct on the part of Mr Adkins. That was an issue in civil proceedings brought by Fairstar in the Netherlands. The preliminary issue in this action was confined to an assertion by Fairstar of a proprietary right to the content of emails relating to Fairstar's business. That assertion is based on the fact that emails stored on the personal computer were received by and sent by Mr Adkins in his capacity as the then Chief Executive Officer of Fairstar. It is argued on the appeal that Fairstar was and is entitled, as principal, to inspect and copy its business correspondence held by its agent in whatever form, whether hard copy or electronic. The action is brought to enforce that right to the content of the emails, and not as a claim for breach of contract committed by Mr Adkins in his management of Fairstar's affairs as its CEO.
The difference between the parties about the legal basis of the claim was accentuated when, in support of the appeal, Mr Susman QC sought leave to file a supplemental skeleton argument. It is principally an update on the progress of the civil proceedings commenced in the Netherlands against Mr Adkins and others. Mr Richard Spearman QC, who appeared for Mr Adkins on the appeal, as well as at first instance, opposed the submission of the supplemental skeleton. He objected that Fairstar's claim was now being put on a completely different legal basis. It was argued before Edwards-Stuart J as a purely proprietary claim to the "content" of the relevant emails. All other possible bases of claim were either unsustainable or were subject to Dutch law and to the exclusive jurisdiction on the Dutch Courts.
New authorities produced by Fairstar relate to duties arising from the agency relationship, in particular the duties of the agent to produce to the principal books and documents during and after the termination of the relationship. What was argued as a broad claim to "property in content" below was being argued after judgment as a narrower new claim to "agency documents" taking the case into areas of Dutch contract and company law justiciable exclusively in the Dutch Courts. There was even, Mr Spearman QC suggested, a change of tack at the hearing below. The judge commented on a "fairly substantial shift" on the application for permission to appeal, which he refused.
Mr Susman QC denied moving his ground. At the hearing and on this appeal Fairstar pursued the claim that it has always made-a proprietary right to the content of the emails. He contended that Fairstar had the right, as principal, to require Mr Adkins, as agent, to produce and deliver up documents held by him as former agent for Fairstar, so that it could inspect them and copy them. That duty continued after the termination of the agency relationship. The fact that the materials are on a personal computer, which may also store private emails of Mr Adkins, was irrelevant. It was not a valid reason for refusing the relief sought by Fairstar to inspect and copy emails relating to its affairs. Emails relating to the personal or private affairs of Mr Adkins would be excluded from the order.
I would allow the supplemental skeleton to be filed. Fairstar has throughout asserted a legal right to the content of the emails in the context of an agency relationship between the parties. That right, to which the label "proprietary" was attached, was to inspect and take copies of electronic correspondence. As explained later, the asserted "proprietary" character of the claim was not, in my view, necessary for its success. I do not think that reliance on the post-termination duties of an agent has raised a new claim which either alters the substance of the case or which has taken Mr Adkins and his advisers by surprise.
Any lingering confusion about the claim can be dispelled by stating what it is not about.
Fairstar makes no claim against Mr Adkins in these proceedings (a) to ownership of the computer in which the emails are stored, or to the server, or to a USB stick, or to any electronic medium, or to any sheets of paper, original or photocopy, or, indeed, to any other physical thing or material relating to the form or storage of the emails; (b) to ownership of confidential information in the emails, it not even being alleged that the content is confidential, or is being misused by Mr Adkins in breach of confidence; (c) to ownership of copyright or other intellectual property right in the content of emails; or (d) to any breach of contract or breach of fiduciary duty in respect of or arising out of the content of the emails or the withholding of them by Mr Adkins.
In brief, Fairstar claims an enforceable right, described by it as "proprietary", to the content of business emails sent and received by Mr Adkins while Fairstar's CEO and stored by him on his personal computer. That right entitles it to inspect and make copies of the content of the emails, either directly or through an independent person instructed for that purpose.
The nature of the prior legal relationship between Fairstar and Mr Adkins as one of agency is not disputed. Emails to and from third parties came into existence and into the possession of Mr Adkins in the course of that relationship. Although stored on his personal computer, the relevant emails relate to Fairstar's business, not to private...
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