IG Index Ltd v Johannes Hendrik Cloete
| Jurisdiction | England & Wales |
| Judge | HHJ Parkes QC |
| Judgment Date | 21 December 2015 |
| Neutral Citation | [2015] EWHC 3698 (QB) |
| Court | Queen's Bench Division |
| Date | 21 December 2015 |
| Docket Number | Case No: HQ13X03979 |
[2015] EWHC 3698 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
His Honour Judge Richard Parkes QC
Sitting as a Judge of the High Court
Case No: HQ13X03979
David Mayall (instructed by Morton Law) for the Claimant
David Hirst (instructed by Pinder Reaux & Associates) for the Defendant
Hearing dates: 4 th December 2015
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 by the defendant to strike out the claim pursuant to CPR 3.4(2)(b) on the grounds that the proceedings amount to pointless and wasteful litigation, the continuation of which to trial serves no useful purpose for the claimant, squanders the resources of the parties and the public resources of the court, and is contrary to the overriding objective and the principle in Jameel v Dow Jones & Co.
BACKGROUND
The claimant carries on the business of online spread betting in currencies, commodities, shares and other securities. The defendant was until 3 July 2012 employed by the claimant as a network service engineer in its IT department. He had entered into a deed of covenant for the protection of confidential information relating to the business of the claimant and its clients. In the course of his employment, he twice raised concerns about the security of certain data held on a server in South Africa.
It later transpired that while still in the claimant's employment the defendant had on 21 February 2012 reported what he regarded as data security breaches to the Information Commissioner's Office (ICO), and that on 27 February 2012 he had sent the ICO hard copies of certain confidential documents which were said to illustrate those breaches. The documents included client lists relating to the claimant's South African activities, including lists of customers' bank payment details.
After repeated disciplinary proceedings, the defendant was dismissed on 3 July 2012.
On 2 October 2012 he began proceedings in the Employment Tribunal (ET). He alleged (inter alia) unfair dismissal, including automatic unfair dismissal for making a protected disclosure of information.
On 17 December 2012 he made a request to the ICO to be provided with any personal information which the ICO held about him, and in particular correspondence with the ICO sent from his email address and by post. This seems to have been treated by the ICO as a subject access request made under s7, Data Protection Act 1998, and on 16 January 2013 it sent the defendant an email which contained scanned electronic copies of the confidential information as TIFF attachments. There is an issue as to whether (by opening the attachments or otherwise) he knew that he had been sent the confidential information.
On 10 June 2013, the ET made an order for the parties to disclose documents relied upon in those proceedings. In accordance with that order, the defendant on 15 July 2013 hand-delivered to IG Index a USB stick containing his disclosed documents. Among those documents were the confidential documents which he had been sent in January 2013 by the ICO in accordance with his subject access request.
When the claimant's staff examined the USB stick and found that the defendant had its confidential information in his possession, the present claim was issued, seeking an order for delivery up of all documents which were their property or which contained confidential information, an order for the destruction of any copies of such material held in digital form, an injunction to restrain the retention or use by the defendant of any confidential information and damages for breach of contract.
The claimant applied to this court for interim relief. Before the court were a witness statement dated 5 August 2013 by Jackie Bornor, the claimant's head of human resources, and a witness statement dated 14 August 2013 by the defendant. Ms Bornor stated that on the USB stick were documents which were the claimant's property and contained confidential information about its clients. It was her evidence that the defendant had no justifiable reason in the course of his employment for copying or retaining such information. She noted that the defendant had written to the ICO on 21 February 2012 to express concerns about the security of the claimant's data, and she believed that he had enclosed with that letter some or all of the confidential material. She stated that the claimant intended to disclose to the defendant in the course of the ET proceedings documents similar to those contained in the USB stick, but with names and client details redacted. On 24 July 2013 she wrote to the defendant requiring him to return immediately the originals and copies of the documents, and to provide undertakings. If he did not return them by 31 July, the claimant would consider legal action. He did not respond. At paragraph 23 of her witness statement, Ms Bornor said this:
"Although I have no evidence that [the defendant] has used or disclosed these documents, other than to the Information Commissioner …, and to [the claimant] as part of the disclosure process in the employment tribunal proceedings, I am concerned that he may do so in further breach of the terms of the Deed of Covenant."
In his witness statement of 14 August, made at a time when he was unrepresented, the defendant confirmed that he had written to the ICO while still employed: that, he contended, did not amount to a breach of any obligation that he owed to the claimant. He said that he had not retained the documents from the time when he was employed, but that they had been sent to him by the ICO six months after his employment had been terminated. He said that he had reason to believe that the information had been provided under the Freedom of Information Act 2000, and as such was in the public domain. Since then, he had had them in his possession for a further period of almost 8 months (since January 2013), during which, he claimed, he had not reproduced them or disclosed them to any third party. He said that he had no intention of using them for any purpose other than the pending ET proceedings. In the course of the hearing before Singh J on 15 August 2013 he told the judge that even if an order was made, he could renew his request to the ICO for the information, but if he did that, he would not have it in time for the trial of his ET claim on 9 September. He repeated that he had no intention of using the information other than in the ET.
On 15 August 2013, Singh J, having heard both parties, made an order for delivery up of all documents and confidential information belonging to the claimants that were in the defendant's possession or under his control, save for copies of such items held on any electronic storage medium; an order for the permanent deletion of all such material in his possession or under his control, and held on any computer or other electronic device, and an order that he should not retain any copies; an order for disclosure by witness statement and by disclosure of documents; and an injunction in the following terms:
"Until the trial of this action, the respondent shall not reproduce, copy, use, divulge, communicate or disclose or make use of (or attempt so to do) to any person, firm or company whatsoever any confidential information or trade secret concerning the business and or private affairs of the applicant of which he is or may become possessed and which came to his knowledge during his employment with the applicant, except as required by a court of law or any regulatory body or that which may be or become part of the public domain other than through any act or default by the respondent, or for the purposes of taking legal advice or, to the applicant, or its legal representatives, in connection with the respondent's claim against the applicant in the employment tribunal under claim number 2204349/2012."
On 20 August 2013, the claimant served Particulars of Claim alleging breach by the defendant of his contract and of the deed of covenant, and of the Copyright and Rights in Databases Regulations 1997 (a claim that was later abandoned). There is an unparticularised claim that the claimant has suffered loss and damage, and a claim for relief which includes delivery up and (albeit without any pleaded case for threat or intention to continue with the impugned behaviour) an injunction.
On 27 August 2013, the defendant made a witness statement in accordance with the order of the judge. In that, he gave the following account of events:
i) He said that on 21 February 2012 he had made a report by email to the ICO, without disclosing any files, and that on 27 February 2012, while still in the claimant's employment, he had printed off and sent the documents to the ICO, because he did not believe that the claimant had properly addressed his security concerns. At that time he had only had in his possession hard copies of the documents.
ii) The documents came back into his possession following the subject access request which he made to the ICO on 17 December 2012. The documents were attached to an email which he received on 16 January 2013 in response to his request.
iii) However, he did not appreciate at the time he received the email that the documents were attached to it. He had expected to be sent the cover pages which he had typed to describe and explain the hard copy documents sent to the ICO...
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