Hare and Another v Legion Group Plc & Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 03 November 2009 |
| Neutral Citation | [2009] EWHC 2693 (Ch) |
| Court | Chancery Division |
| Docket Number | Case Numbers: HC09C00984 |
[2009] EWHC 2693 (Ch)
Before : MR JUSTICE BRIGGS
Case Numbers: HC09C00984
HC09C03666
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Robert Deacon (instructed by Rosenblatt Solicitors, 9–13 St Andrews Street, London EC4A 3AF) for the Claimant in the First Claim and for the Defendants in the Second Claim
Mr Thomas Grant & Mr Jonathan Allcock (instructed by Clintons, 55 Drury Lane, Covent Garden, London WC2B 5RZ) for the Defendant in the First Claim and for the Claimants in the Second Claim
Hearing dates: 22 nd & 23 rd October 2009
Mr Justice Briggs :
There are before me a number of applications in two vigorously contested and related proceedings, to which I will refer as “the First Claim” and “the Second Claim”. Both complain of the misuse of confidential information.
In the First Claim, issued on 30 th March 2009, the Claimant Sectorguard plc (“Sectorguard”) complains of the misuse by the Defendant Dienne plc (“Dienne”) of confidential information consisting primarily of the names and addresses of Sectorguard's customers, and the prices being charged to them. It is alleged that two former consultants to Sectorguard and three of its former employees now manage and/or control Dienne, and, at least by implication, that they were principally responsible for the wrongful obtaining and use by Dienne of Sectorguard's confidential information. The consultants in question were two brothers, John and Paul Hare. It is common ground that John Hare (“Mr Hare”) is and has at all material times been a director of Dienne.
By the Second Claim, issued on 9 th October 2009, Mr Hare and Dienne allege misuse of the contents of and enclosures to their confidential, including privileged, emails both by Sectorguard (since renamed Legion Group plc), and by a Mr Mark Higgins and a Mr Charles Cleverly, two directors of Sectorguard. In short, the allegation is that, upon his enforced departure from Sectorguard on 30 th October 2008, Mr Hare inadvertently left in operation an automatic email re-direction system by which private emails concerning his own and Dienne's affairs were automatically routed to an email address accessible within Sectorguard, and that, after his departure, and until he had the automatic re-direction cancelled with expert assistance in June 2009, Sectorguard personnel, in particular Mr Higgins and Mr Cleverly, had taken active steps to read those emails, to open attachments to them, and to pass private and confidential information therein contained to third parties. It is alleged in the Second Claim that the private material thus read and used by the Defendants included privileged material, consisting of communications between, on the one hand, Dienne and Mr Hare, and, on the other hand, Dienne's solicitors instructed in the First Claim, Messrs Clintons, including legal advice in connection with the First Claim.
The applications before me in the First Claim all arise from an interim order made by Lewison J on 6 th April 2009 (“the April Order”), and from a witness statement dated 3 rd April 2009 made by Mr Hare in response to the interim application pursuant to which the April Order was made.
The April Order included the following undertaking by Dienne:
“The Defendant shall within 7 days of the date of this order disclose on oath the identity of all the Claimant's customers it has contacted (whether by its directors, officers, servants or agents) as a result of having misused the Claimant's confidential customer list and/or the Claimant's CASH system and the precise nature of the contact and of any business the Defendant has conducted with such customers.”
I shall refer to that undertaking, by reference to its number, as “Undertaking 5”.
The gist of the relevant part of the 3 rd April witness statement of Mr Hare was that the only allegedly confidential information of Sectorguard of which use had been made by Dienne consisted of the contents of a customer list placed in Mr Hare's car by an employee of Sectorguard, together with other papers, upon his summary ejection from Sectorguard's offices in October 2008, that no other former employee of Sectorguard who had transferred to Dienne had been involved in any breach of confidence or provided any information to Dienne relating to Sectorguard's customers, and that the customer list to which I have referred was used by Dienne for sending a mail shot to approximately 500 customers of Sectorguard.
On 18 th May 2009 Sectorguard issued and shortly thereafter served an application notice, addressed to Dienne and Mr Hare seeking, by paragraph (1) the sequestration of Dienne's assets and/or committal to prison of all of its directors for contempt of court in failing to comply with Undertaking 5 and, by paragraph (2), permission pursuant to CPR 32.14 for the making of an application to commit Mr Hare to prison for making false statements in the relevant part of his 3 rd April witness statement. The application notice sought further relief by paragraphs 3 and following, not material to the matters before me. I shall refer to it as the Committal Application.
On 3 rd June 2009 Dienne applied for a variation, modification or release of Undertaking 5, and on 10 th June Dienne and Mr Hare applied to strike out paragraph 1 of the Committal Application. In the meantime, on 5 th June, Proudman J directed that Sectorguard's application for permission to commit, Dienne's application to vary Undertaking 5 and Dienne's (then contemplated) strike out application should all be heard together before a judge on the first available date after 22 nd June 2009, with a time estimate of one day, and she gave directions for the completion of any necessary evidence. Those are the three applications in the First Claim now before me.
In the Second Claim, Mr Hare and Dienne applied by Application Notice dated 9 th October 2009 for interim injunctive relief. It became common ground that the Application needed to be adjourned to permit the Defendants to file evidence in response. In the meantime I granted interim relief in terms which, to the limited extent that they were opposed, are explained in an extempore judgment given on the second day of the hearing.
In his response to the Committal Application, Mr Hare made reference in a second affidavit sworn on 3 rd June 2009, at paragraph 29, to an apprehension that Sectorguard was motivated by personal bad feelings rather than any genuine desire to enforce Undertaking 5 and, as part of what he described in a sub-heading as The Wider Background, he referred at paragraph 26(2) to a belief, referred to in an exhibited email of his, that Mr Higgins had been unlawfully opening and reading his (Mr Hare's) private emails. Most of the evidence served in support of the interim injunction application in the Second Claim sought to prove the truth of that allegation, both in relation to Mr Higgins, Mr Cleverly and Sectorguard generally, and has been relied upon by Mr Hare and Dienne in connection with the applications before me in the First Claim. That evidence was, subject to one exception, all served on the Defendants to the Second Claim on 9 th October. The exception consisted of an expert's report (“the Kroll Report”), which was served only on 13 th October.
ADJOURNMENT
At an early stage in the two day hearing before me, which began on 22 nd October, I asked Mr Deacon, who appeared for Sectorguard in the First Claim and for all the Defendants in the Second Claim, whether he sought an adjournment of the strike out application and permission application in the First Claim, to enable Sectorguard to answer the evidence served mainly on 9 th October, in relation to the alleged reading of Mr Hare's private and privileged emails since, for reasons which I shall later explain, it appeared to me that that evidence might be of real relevance to both those applications. Mr Deacon said that he did not seek an adjournment, and was content to deal with both those applications on the evidence as it stood.
At the beginning of the second day of the hearing, by which time Mr Deacon was more than half way through his submissions in response to Mr Grant on the strike out application, but before he had opened Sectorguard's permission application, he applied for a substantial adjournment for precisely that purpose, having, as he frankly acknowledged, changed his mind in view of the way in which the hearing had developed, and the central importance placed by Mr Grant on the evidence of misuse of Mr Hare's private and in particular privileged emails.
Initially, Mr Deacon's application was for an adjournment of all three applications in the First Claim but, during the course of argument, and after hearing Mr Grant's submissions in opposition, Mr Deacon abandoned his attempt to have the strike out application adjourned. I ruled against any adjournment of the release application, but adjourned the permission application on terms as to costs, stating, in order to save time, that I would give my reasons for those decisions as part of this reserved judgment. This I now do.
My reason for declining to adjourn the release application can be shortly stated. It is, simply, that the question whether or not Sectorguard, Mr Higgins and/or Mr Cleverly had been reading and making improper use of the contents of Mr Hare's private emails is of no relevance whatever to that application. Release from, or variation of, Undertaking 5 is sought entirely on the basis that it was, unbeknown to Dienne or Mr Hare when the undertaking was given, impossible of performance,...
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