Mark Alan Holyoake v Nicholas Anthony Christopher Candy and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 24 January 2017 |
| Neutral Citation | [2017] EWHC 52 (QB) |
| Docket Number | Case No: HQ16X02638 |
| Court | Queen's Bench Division |
| Date | 24 January 2017 |
[2017] EWHC 52 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ16X02638
Anya Proops QC and Robin Hopkins (instructed by gunnercooke llp) for the Claimant
Timothy Pitt-Payne QC and Christopher Knight (instructed by Grosvenor Law) for the Defendant
Hearing dates: 12–14 December 2016
Introduction
This is a case about the right of an individual to have access to personal data relating to that individual which is held by others. The right, generally known as the right to "subject access", was first brought into domestic law by the Data Protection Act 1998 (" DPA"). The main operative provisions are contained in s 7 of the DPA. This requires an individual seeking subject access to make a written subject access request or SAR. Section 7 and certain provisions of Schedule 1 of the DPA are known as the "subject information provisions". By s 37 and Schedule 7 paragraph 10 material protected by legal professional privilege is exempt from the subject information provisions ("the LPP Exemption").
This has been the trial of a Part 8 claim in which the claimant ("Mr Holyoake") seeks orders to enforce his rights of subject access under s 7 DPA against the defendants, Nick Candy ("Mr Candy") and a Guernsey-registered company ("CPC"). Mr Holyoake first made SARs on 15 April 2016. The SARs were later narrowed. The defendants responded to the narrowed SARs on 14 November 2016. They disclosed a limited amount of information. In relation to some of the information he identified as being under his control Mr Candy relied on the LPP Exemption. The trial has been principally concerned with the adequacy of the defendants' responses.
The main issues are:
(1) Whether the defendants carried out adequate searches in response to the narrowed SARs ("the Search Issue");
(2) The validity of Mr Candy's reliance on the LPP Exemption ("the LPP Issue").
The arguments on the LPP Issue raise two main questions. The first is whether any LPP is abrogated by the rule against reliance on privilege to cloak iniquity. I shall call this the Iniquity Issue. The second question I shall call the Inspection Issue. It is whether the court should inspect the relevant data in order to test the validity of Mr Candy's reliance on the LPP Exemption. It is common ground that s 15(2) of the DPA confers a power to inspect. The issue is whether that power should be exercised.
I have also heard argument on the question of whether the SARs were and remained invalid on the grounds that they have been made and pursued for collateral and improper motives and therefore represent an abuse of the right of subject access ("the Abuse Issue"). That was an objection taken by the defendants in correspondence at the outset, and relied on in their evidence. They have not abandoned it. But it is not a ground on which they resisted the claim at the trial. That is clearly a matter that may be relevant to costs. So also might be the propriety of the defendants' conduct in running this "defence". But those issues have featured in argument at the trial for other reasons. Among those reasons is a contention by Mr Holyoake that the defendants' reliance on abuse of process is itself abusive, and by that token casts doubt on the reliability of their stance, and their evidence, on the two main issues that I have identified above.
Factual background
Mr Holyoake and Mr Candy met at Reading University in the 1990s, when they became friends. Some twenty years later, both were involved in the property development business. In 2011 they had business dealings in connection with a property at Grosvenor Gardens House, SW1 ("the Property"). Those dealings have led to a serious falling out and litigation in the High Court, Chancery Division ("the Chancery Proceedings"), which is presently awaiting a 7-week trial commencing in February 2017.
The Chancery Proceedings
A brief and general summary of the issues in the Chancery Proceedings will be enough for present purposes. In 2011 Mr Holyoake's company Hotblack Holdings Limited ("Hotblack") was seeking to purchase the Property. It was in need of funds for that purpose. Mr Holyoake approached Mr Candy, seeking a loan of £12m. This led to a loan agreement dated 12 October 2011 between Mr Holyoake and CPC, a property company connected to Mr Candy's brother Christian ("the Loan Agreement"). This involved an unsecured loan of £12m, advanced by CPC to Mr Holyoake personally. At the same time certain declarations of trust were made by Mr Holyoake. Further related agreements were made thereafter. Hotblack completed the purchase of the Property later in 2011.
Subsequently, it was alleged against Mr Holyoake that one of the declarations of trust contained a false statement; that he was thereby in breach of warranties given under the Loan Agreement; and that net asset statements provided by him pursuant to the Loan Agreement were non-compliant with the requirements of that Agreement. On this basis CPC took various steps which, on its case, represented lawful enforcement measures to protect its legal rights. The case for Mr Holyoake and Hotblack is very different. In the Chancery Proceedings, which were issued on 12 August 2015, Mr Holyoake and Hotblack sue Mr Candy, Christian Candy, CPC and three other directors of CPC ("the Chancery Defendants"). The three directors include Steven Miles Smith ("Mr Smith") and Timothy James Dean ("Mr Dean"). The claims are for unlawful means conspiracy, extortion, fraudulent misrepresentation and a variety of other causes of action. The Chancery Defendants vigorously deny the claims. Among their defences is reliance on a settlement agreement made by deed on 15 October 2013 ("the Settlement Deed"). The claims advanced in the Chancery Proceedings were first intimated in December 2014. The Chancery Defendants are represented by Gowling WLG.
The Injunction Proceedings
A separate High Court claim has been brought, in the Queen's Bench Division, by Mr Candy against Mr Holyoake, his wife, and a Mr David Wells ("Mr Wells"). Mr Wells is Mr Holyoake's Financial Director. This claim, issued on 16 December 2015, seeks injunctions against the defendants to restrain the disclosure of certain information recorded by Mrs Holyoake, which is alleged to be private and confidential to Mr Candy. The Injunction Proceedings are presently stayed. The claimant in the Injunction Proceedings, Mr Candy, is represented by Schlomo Rechtshaffen of Rechtshaffen Law ("Mr Rechtshaffen").
The SARs and this action
The SARs which Mr Holyoake made to Mr Candy and CPC on 15 April 2016 stated that Mr Holyoake was "interested in obtaining all of the information to which I am entitled under section 7 of the Act in relation to my dealings and communications with you between the period from 2011 to the date of this request." But the SARs acknowledged that both recipients had disclosure obligations in the Chancery Proceedings, in which standard disclosure was due to be given on 1 July 2016. Each of the SARs said "This request is not intended to overlap significantly with the same", and that its scope was therefore limited. By letter of 6 May 2016 Mr Holyoake reiterated his willingness to consider proposals to minimise any duplication of disclosure.
The SAR addressed to Mr Candy ("the Candy SAR") illustrates the scope of the original requests. It sought data under the following five headings:
(1) all personal data of mine relating to my personal assets and financial affairs in any format and media including, but not limited to, CCTV footage, sound recordings, correspondence and email communications;
(2) all personal data of mine created pursuant and/or in relation to the production of a net statement of my personal assets to CPC by Mr David Wells on my behalf on 20 October 2011 and any subsequent statements about and additional disclosures of my personal assets (ie, any file notes, emails or other information containing my personal data which relates to my personal net asset statement);
(3) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any employee, agent or other representative of USG Security Limited ("USG");
(4) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any employee, agent or other representative of DPM Facilities Limited ("DPM");
(5) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any third party (other than USG or DPM) for the purposes of an investigation or surveillance of me or any of my family or colleagues.
The Candy SAR went on to make clear "for the avoidance of doubt" that parts (3), (4) and (5) of the requests were to include communications held by Mr Candy and containing Mr Holyoake's personal data which had passed to or from Mr Candy, Christian Candy, Mr Smith, Mr Dean and 11 other named individuals.
The SAR addressed to CPC ("the CPC SAR") also contained 5 categories and was in similar terms to the Candy SAR. Categories (1) and (2) were identical to the corresponding categories in the Candy SAR. The other categories were:
(3) all communications, documents or other information containing my personal data and passing between any director, employee or agent of CPC and any employee, agent or other representative of [USG]
(4) all communications, documents or other information containing my personal data and passing between any director, employee or agent of CPC and any employee, agent or other representative of [DPM]; and
(5) all communications,...
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