Imerman v Tchenguiz and Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 16 November 2009 |
| Neutral Citation | [2009] EWHC 2902 (QB),[2009] EWHC 2024 (QB) |
| Docket Number | Case No: HQ09X00805 |
| Court | Queen's Bench Division |
| Date | 16 November 2009 |
[2009] EWHC 2024 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Honourable Mr Justice Eady
Case No: HQ09X00805
Antony White QC and Lorna Skinner (instructed by Berwin Leighton Paisner LLP) for the Claimant
Stephen Nathan QC, Richard Christie QC and Godwin Busuttil (instructed by Zaiwalla & Co) for the Defendants
Hearing dates: 8–10 June 2009
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.
Mr Justice Eady:
The nature of the summary relief now sought
These proceedings were commenced on 26 February 2009 and relate to the taking of what is said to be confidential information from a shared computer system without authorisation and its subsequent misuse. Interim relief was granted by orders of Cox J on 2 March and myself on 20 March.
The Claimant now seeks summary judgment on the basis that “… the First Defendant's taking of the Claimant's private and confidential information was clearly unlawful and none of the Defendants has any lawful right to retain or use the same”. The attached draft order makes clear the limited nature of the relief he now seeks. It is not always necessary for a litigant seeking summary judgment to show incontrovertibly that he can succeed on every pleaded issue. It may suffice to establish only those propositions which are essential to justifying the particular relief claimed.
Prohibitory injunctions are claimed against all five Defendants preventing communication or disclosure to any third party (including the Claimant's wife and her solicitors) and copying or in any other way using three categories of documents or information. The first consists of those documents copied to the Claimant's solicitors by his wife's solicitors under cover of a letter dated 18 February 2009 and any information contained in them.
The second category is defined by reference to paragraph 1.19 of the expert report from Mr J E C Davidson dated 12 March 2009 and any information obtained therefrom. This includes documents in what he described as “File 8”, comprising financial statements for the period ended 30 September 2008 for various companies and trusts, financial statements for a company called Earlcrown Ltd for the period ended 31 May 2007 and information concerning rent and service charges for a property at Leconfield House, Curzon Street.
The third category is more generally defined in terms of information relating to the Claimant's personal or private life, his financial or business affairs, or the financial or business affairs of his companies or family trusts (specifically identified at considerably greater length).
The factual background
The Claimant, Mr Vivian Imerman, is a businessman who has lived in this jurisdiction since 1993. In November 2001 he married Elizabeth Tchenguiz (who is the sister of the First and Second Defendants). On 30 December 2008 she petitioned for divorce and the proceedings are pending in the Family Division.
The Claimant shared various business interests and dealings with the First and Second Defendants and also shared office space and computer facilities with them from about March 2002.
On or about 19 February of this year the Claimant and his staff were evicted from the premises of the First Defendant. This led to proceedings in the Chancery Division, whereby the Claimant and two of his companies complained of being excluded without notice (HC09C00541).
The Third and Fourth Defendants were employed as IT managers (of companies operated by the Second and First Defendants respectively).
The claim arises out of the circumstances in which vast amounts of material were taken from the computer system by the First Defendant in January and February of this year. It is the Claimant's case that there is now no need for a trial because, taking the Defendants' present case as it currently stands, it is possible already to see that he is entitled to injunctive relief. It is his case that none of the Defendants has any right to retain or use the information taken and that such a conclusion can be reached without the need to resolve contested issues of fact.
Although the Defendants' account has altered considerably as the case has developed, Mr White QC for the Claimant is prepared to base his submissions on the latest version; that is to say, the accounts given in the seventh witness statements of the First and Fourth Defendants, served on 21 May 2009. He is prepared to accept also the allegations of fact contained in the defence, which was served on 27 May. That case was summarised by Mr White in the Claimant's skeleton argument as follows:
“(1) The first occasion on which the First Defendant accessed the Claimant's information was on 6 and 7 January of this year, when he “accessed emails and other documents concerning the Claimant held on the computer system” through a desktop computer and “searched for and browsed through documents of relevance to likely issues in the divorce proceedings” [i.e. the pending matrimonial proceedings between the Claimant and his wife]. What he was looking for was information regarding the Claimant's financial status and the whereabouts of his money.
(2) On 6 and 7 January, the First Defendant “transferred copies of the Claimant's email data, which included the documents attached to those emails” to two sets of memory sticks (described in the Defence as Sets A and B).
(3) At some point prior to 2 February, he downloaded the contents of Set A on to his (previously undisclosed) laptop.
(4) On or about 16 January, using the desktop computer, he “again accessed emails and other documents concerning the Claimant held on the computer system” and “searched the computer system for documents which contained references to the addresses of the five London properties” [i.e. those said to form part of the Claimant's portfolio or in which he had a relevant interest for the purpose of assessing his wealth in the matrimonial proceedings].
(5) On 2 February 2009 and on subsequent days the First Defendant printed out information downloaded on to the laptop using a (previously undisclosed) memory stick known as “Cleverstuff” borrowed from the Fourth Defendant for the purpose of transferring “emails and documents concerning the Claimant” from the laptop to the desktop hard drive. Thereafter the First Defendant printed out “emails and documents” following searches for emails in the inbox folder which “were, or were likely to be relevant, to the likely issues in the divorce proceedings” including searches against the addresses of London properties believed to belong to the Claimant, the names of trusts and companies he knew to be associated with the Claimant. When the First Defendant came across emails that “appeared to be relevant to the likely issues in the divorce proceedings, he opened any documents attached to such emails and instructed the Fourth Defendant to print them out together with the accompanying emails”, amounting to 11 box files. Those documents included documents protected by legal professional privilege.
(6) Either on 2 February and subsequent days or on 13 February of this year, the First Defendant accessed and printed out a number of financial statements in respect of various named trusts for the period ending 30 September 2008 (referred to in Mr Davidson's expert report).
(7) At some point between 6 February and 11 February, the First Defendant “copied such of the Claimant's email data, including documents attached to those emails” as remained on the servers on to the USB hard drive. The USB hard drive was retrieved by Zaiwalla & Co, acting on behalf of the First and/or Second Defendant, on 2 March of this year and placed in an office safe. It was subsequently delivered up to the Claimant's solicitors on 24 March and, on 30 March, some forensic examiners called FTI confirmed that it had deleted all copies held on its computer systems.
(8) On 13 February the First Defendant transferred a number of documents which “may have included certain emails and other documents concerning the Claimant” from the laptop to the hard drive of the desktop using an (previously undisclosed) unknown USB device borrowed from the Fourth Defendant and accessed some of those documents. The First Defendant does not recall whether he printed them out.
(9) On 24 February, the First Defendant again accessed and printed out 17 pages “of emails and other documents concerning the Claimant”, specifically documents related to the Claimant's company Earlcrown Limited. These had been transferred to his profile on the desktop computer on or about 24 February from the laptop using a (previously undisclosed) memory stick known as “Recovery” borrowed from the Fourth Defendant.”
A summary of the rival submissions
Mr White submits that none of the Defendants has any right to retain or use the information taken. The Defendants simply do not accept that and argue that there are so many issues of fact, and mixed law and fact, that it would be wrong for a judge to take a short cut. It is said that Mr White is, in effect, inviting me to conduct a mini-trial and to come to conclusions when the evidence requires closer investigation.
Furthermore, where a claim is based on allegations of breach of confidence and/or infringements of a claimant's privacy rights protected under Article 8 of the European Convention, it is appropriate for the court first to decide in all the circumstances whether the claimant has a reasonable expectation of privacy and/or whether the...
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