HML PM Ltd v Canary Riverside Estate Management Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicol |
| Judgment Date | 17 December 2019 |
| Neutral Citation | [2019] EWHC 3496 (QB) |
| Date | 17 December 2019 |
| Docket Number | Case No: QB-2019-003557 |
| Court | Queen's Bench Division |
[2019] EWHC 3496 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Nicol
Case No: QB-2019-003557
Guy Vassall-Adams QC, Jonathan McNae and Ben Silverstone (instructed by Kennedys) for the Claimant
Thomas Grant QC and Ryan Turner (instructed by Freeths LLP) for the Defendants
Hearing dates: 26 th, 27 th & 28 th November 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.
This is an application for an interim injunction to restrain the defendants from making use of what is said to be confidential information and in which (to some extent at least) it is said that the Claimant enjoys legal professional privilege.
Factual Background
On the banks of the River Thames as part of Canary Wharf there is a mixed-use development known as the Canary Riverside Estate (‘the Estate’). The Estate includes 280 residential flats, a hotel, a gym, a car park, a casino, restaurants and drycleaners. The 2 nd Defendant (‘Octagon’) is the freehold owner of the Estate. The 1 st Defendant (‘CREM’) is the head lessee of the Estate. CREM had appointed Marathon Estates Ltd (‘Marathon’) as managing agents for the Estate. The residential units are held under sub-leases, as are the commercial premises.
Some of the residential sub-tenants were dissatisfied with the management of the Estate and the Service Charges that they were obliged to pay. The Landlord and Tenant Act 1987 s.24 confers on the First-tier Tribunal (‘Ft-T’) (Property Chamber) the power to appoint a manager in respect of certain premises. Some of the residential sub-tenants made an application to the Ft-T for such an order. A leading part in these activities was taken by Ms. Angela Jezard. Ms Jezard is not herself a sub-tenant, but she lives with Dr Ashley Steel who is. From time to time, Ms Jezard has received assistance and encouragement from Mr Martin Boyd of Leasehold Knowledge Partnership. The resident/applicants asked for Mr Alan Coates of HML Andertons to be named as the manager. HML Andertons is the previous name of the Claimant by which it was known until September 2017. Mr Coates is now and has been at all material times both an employee and a director of the Claimant. In a decision dated 5 th August 2016 the Ft-T agreed to the appointment of Mr Coates as the manager of the residential units on the Estate (‘the Management Order’). At [108] of its decision of that date the Tribunal said,
‘Mr Coates of HML Andertons has been put forward by the applicants as their chosen manager. It was evident to the tribunal that Mr Coates is really a service manager, and the tribunal considers that this is actually what the estate required, a manager who can set budgets, arrange for repairs and maintenance and services to be provided, and then provide financial information to the leaseholders and involve them in decisions involving their homes. Mr Coates does not however have experience of commercial property management and therefore the tribunal orders that the revised draft management order be drafted so as to exclude the management of the commercial properties from Mr Coates' control, save where that management relates to the shared services on the estate.’
Mr Coates' appointment was for an initial term of three years with effect from 1 st October 2016 and it was therefore due to expire on 30 th September 2019. The Defendants had opposed the application for the appointment of a manager. The hearing which led to his appointment took some 5 days. Following the F-tT's decision, the Defendants applied for permission to appeal and a stay. Those applications were refused by the F-tT on 15 th or 29 th September 2016 when the Tribunal also reviewed and amended its decision. It seems that the renewed applications for a stay and for permission to appeal were refused by Martin Rodger QC in the Upper Tribunal (Lands Chamber) on 30 th September 2016. The Defendants applied for judicial review of the decisions of the F-tT and the Upper Tribunal, but on 6 th February 2017 Lavender J. refused permission to apply for judicial review. Because the application had been made under CPR r.54.7A, there was no right to renew the application for permission at an oral hearing.
In July 2018 the F-tT extended Mr Coates's term of appointment so that it ran for 5 years from 1 st October 2016 (i.e. until 30 th September 2021), but, on 6 th June 2019 the Tribunal agreed that his appointment should expire at the original date of 30 th September 2019. It was anticipated that another manager would be appointed for the Estate in his place. I am told that this has occurred. The present manager has nothing to do with the present Claimant.
A great many other matters were subsequently litigated between the parties in the F-tT and, on occasions the Upper Tribunal, and, as I shall show, in other fora as well.
On 20 th March 2018 Mr Coates suffered a burglary from his home. The only item taken was a laptop on which he had stored some documents relating to his role as manager of the Estate.
On 30 th April 2019 a ‘Mr Smith’ wrote by email to the F-tT, copied to Angus Storar of Downs, solicitors for Mr Coates, and to David Marsden of Freeths, the Defendants' solicitors. In the email ‘Mr Smith’ was claimed to be a pseudonym for employees of HML Andertons (which, as I have already said, was the previous name of the Claimant). The author or authors of the email claimed to have worked with Mr Coates and were being asked
‘to carry out tasks which we suggest are breaches of employment law, abuses of court processes and acts, which in the circumstances, would be subject to criminal proceedings, all of which we have very serious concerns with.’
In summary ‘Mr Smith’ alleged that:
i) They had ‘unequivocal material that Alan Coates and other members of the HML team… have brought these legal cases into disrepute’.
ii) Prior to his appointment Mr Coates had been in collusion with barristers representing Bruce Ritchie of Residential Land (in an associated case) and Mr Ritchie had been or was providing financial backing to the residents of the Estate with their application for the appointment of Mr Coates.
iii) Mr Ritchie had sources within the Tribunal who had been providing him with insider information.
iv) Since Mr Coates's appointment he had been distributing ‘confidential material of HML Andertons and very sensitive and confidential material of [CREM] to non-associated parties, thus breaching data protection law of which can be seen to be a criminal offence.’
v) Mr Coates had released confidential material to Angela Jezard of the Residents Association of Canary Riverside (‘RACR’).
vi) Mr Coates, with the assistance of Mr Storar had committed perjury.
vii) HML were mismanaging other sites under their control.
It is the Claimant's primary case that ‘Mr Smith’ is not a pseudonym for employees of HML Andertons, but the information has been derived from the stolen laptop or, possibly, hacking into Mr Coates's email accounts. Nonetheless, it is convenient to continue to refer to this correspondent as ‘Mr Smith’.
On 1 st May 2019, Mr Marsden of Freeths replied to ‘Mr Smith’ saying
‘Thank you for your email. Are you able to provide documentation to support what you say about Canary Riverside?’
On 2 nd May 2019, Mr Storar of Downs wrote to the F-tT (copied to Mr Marsden) and said,
‘We are outraged by the contents of this email and consider this as a distressing attempt to interfere with due legal process. As you are aware, we do not know from whom the email comes. There is no David Smith at HML and our client does not believe HML employees would have written such an email. … In any event this should have no part to play in the proceedings due to be heard in June 2019 before this Tribunal.’
Mr Marsden wrote a chasing email to ‘Mr Smith’ on 15 th May 2019. In response ‘Mr Smith’ wrote on 16 th May 2019 that the delivery of the material was being prepared.
On 11 th June 2019 ‘Mr Smith’ sent to Mr Marsden three emails attaching the first batch of documents with which this application is concerned. The parties have referred to these collectively as the ‘Smith Documents 1’. Attached to the two emails was a series of scans. Again, the parties have conveniently numbered these scans and it is sensible to use that numbering, although in some cases, a single scan includes a number of different emails or documents. Smith Documents 1 comprised 14 scans with a total of 95 pages.
On 13 th June 2019 Mr Marsden forwarded what he had received from Mr Smith to Mr Storar. In any event, it seems that ‘Mr Smith’ had, by a separate email on 11 th June 2019 also sent the Smith Documents 1 to Mr Storar.
On 14 th June 2019 CREM emailed a large number of the Smith Documents 1 to the residential sub-tenants and the commercial sub-tenants (what was sent were all of the scans except for Scans 2, 3, 8,13 and 14). In its cover email, CREM said,
‘one of the Landlord's major concerns is the fairness and impartiality of the FTT appointed manager – Alan Coates. It is clearly a requirement of the Management Order that Alan Coates “act fairly and impartially in his dealings.” Please see the attached emails which we have recently received confirming the Landlord's concerns all along.’
On 14 th June 2019 Mr Storar emailed the F-tT (copying in Mr Marsden and others) commenting that the Smith Documents 1 appeared to derive from Mr Coates' stolen laptop and asserting that many of the documents were subject to legal professional privilege. Mr Storar also expressed concern that...
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Canary Riverside Estate Management Ltd v Alan Coates
...of general interest, that it was almost complete and that neither party had objected to him doing so. The judgment is reported at [2019] EWHC 3496 (QB) and it provides a very useful summary of the litigation concerning the estate and makes some important findings relevant to these proceedi......