Nicholas Anthony Christopher Candy v Mark Alan Holyoake and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 02 March 2017 |
| Neutral Citation | [2017] EWHC 373 (QB) |
| Docket Number | Case No: HQ15X05215 |
| Court | Queen's Bench Division |
| Date | 02 March 2017 |
[2017] EWHC 373 (QB)
Mr Justice Warby
Case No: HQ15X05215
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
David Sherborne & Andrew Fulton (instructed by Rechtschaffen Law) for the Claimant
James Price QC & Alexandra Marzec (instructed by Carter-Ruck) for the Defendants
Hearing date: 22 February 2017
Judgment Approved
Introduction
This claim is another emanation of a serious falling-out between two former friends, Nick Candy and Mark Holyoake. They have known each other since University, but in 2012 they had a business dispute. That dispute has generated a claim by Mr Holyoake against Mr Candy and others for damages of over £130m. That claim, brought in the Chancery Division ("the Chancery Proceedings"), is being tried by Nugee J at the moment. The dispute has also generated a data protection claim by Mr Holyoake, with which I have dealt between November 2016 and February 2017: see [2017] EWHC 52 (QB).
In this action Mr Candy claims remedies for what he alleges are completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 (" DPA") against five defendants: Mr Holyoake, his wife Emma, and three business associates of Mr Holyoake, Messrs Wells, Pym, and Lovering. The claim arises from events at Mr Holyoake's home in Ibiza in the summer of 2010. On 12 June the Candys, the Holyoakes, and two companions had been out for the evening in town. On their return Mr Candy, heavily intoxicated, said and did some embarrassing things. Mrs Holyoake recorded these events on her phone. The claim relates to that recording ("the Recording"). I shall use that global term for convenience although there is evidence, and it may well be, that there were several individual recordings.
The day after the Recording was made Mr Candy made requests for its deletion, or the deletion of parts of it. Parts were deleted and parts were retained. In November 2014 Mr Holyoake sent Mr Candy an email which Mr Candy characterizes as a threat to publish the contents of the Recording to the world at large. The intention, he alleges, was to intimidate him in the context of the business dispute which had by then developed. Mr Candy's case is that this intention was shared by all five defendants, with a scheme to deploy the video against him being co-ordinated and discussed between the Holyoakes and each of Messrs Wells, Pym, and Lovering.
The claim form in this action was issued on 16 December 2015. The claim was against the first three defendants, Mr and Mrs Holyoake and Mr Wells. These three ("the Initial Defendants") have filed a Defence. They admit the creation of the Recording of Mr Candy's drunken behavior, and that he had certain reasonable expectations as to the privacy and confidentiality of the Recording. They admit its retention, and its disclosure by Mr Holyoake to Mr Wells. But they deny having misused, or threatened to misuse it. And they deny any breach of duty under the DPA.
The claim against the Initial Defendants has proceeded to the stage of disclosure and inspection of documents. They have made a Part 18 Request for further information about Mr Candy's case, the answer to which they maintain is inadequate. The fourth and fifth defendants, Messrs Pym and Lovering, were added on 4 November 2016. I shall call them the Additional Defendants. Steps were taken to serve proceedings on them, which Mr Candy maintains were effective. The Additional Defendants did not acknowledge service of the proceedings.
Issues
There are three issues before the Court at this hearing:-
(1) whether the Defences of the Initial Defendants should be struck out and judgment be entered for Mr Candy on the grounds that these defendants have been guilty of serious breaches of their disclosure obligations;
(2) whether judgment in default should be entered against the Additional Defendants;
(3) if the claim proceeds, whether Mr Candy's Response to the Part 18 Request should be struck out, with him being required to provide a further answer.
Hearing in private, judgment in public
On the application of Mr Candy, a substantial part of the evidence and argument have been dealt with at a hearing in private. That is because I was persuaded that it was to that extent strictly necessary to sit in private, excluding the press and public. The order for a private hearing was made pursuant to CPR 39.2(2)(a), (c) and (g) on the basis that the claim concerns information that is alleged to be private and/or confidential and it is necessary to sit in private to avoid prejudice to the rights asserted by the claimant. The nature of the arguments is such that they could not practicably have been conducted in public, even with reporting restrictions.
The Court and the lawyers concerned in this case are well aware of the importance of open justice, and mindful of the principles set out in the Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003 [9]–[15], which are applicable equally here. My order in this case was made with those guiding principles in mind, and only after I had given a public ruling in which I explained the nature of the claim, the issues before the court, and the reasons for sitting in private. The order was made on the basis that the Particulars of Claim (though not their Confidential Schedule) are publicly accessible on the Court file and that – as Mr Sherborne acknowledged – I would give judgment in public, as I now do.
Some of what I shall say in this judgment will go beyond what is available to the public via the publicly accessible Particulars of Claim, but not in my view to an extent that arguably violates a right of privacy or confidentiality. Orders have previously, and properly, been made restricting access to parts of the court file, including not only the Confidential Schedule but also the Defence. But, as will be spelled out in the formal order made as a result of this hearing, reporting of this public judgment would not be a breach of those orders.
There are however some aspects of my reasoning that need to be set out in a private document, and so this judgment contains a private Annex containing that relatively limited additional material. That Annex will not be publicly available, and reporting of it will be prohibited, unless and until some different order is made.
Conclusions
The Initial Defendants have, as they admit, been guilty of serious and significant breaches of their duties of disclosure. The overriding objective requires that there should be sanctions for such breaches, as the Initial Defendants also concede. But I am not persuaded that the appropriate sanction is to strike out the Defences, or to grant Mr Candy judgment on his claims without a trial. These defendants' conduct of their disclosure is unsatisfactory, and certainly raises serious questions about their conduct, and about the merits of their pleaded case. It is not established that there was a good reason for the failure. But nor is it proved that there was a bad reason. I do not consider that in all the circumstances it would be a just and proportionate response to the defendants' default to preclude them from defending the claim.
The appropriate sanctions, at this stage, are these: (1) the payment of (a) the costs of the abortive, initial round of disclosure; (b) the costs of Mr Candy's applications for the amendment of the Particulars of Claim and Schedule, joinder of parties, and specific disclosure; (2) an appropriate costs order in respect of Mr Candy's present application to strike out. It is my clear conclusion that the costs at (1) should be paid on the indemnity basis. It is my provisional view, subject to argument on behalf of the Initial Defendants, that they should pay at least the bulk of the costs at (2). If further sanctions are appropriate they will have to be the subject of separate applications and rulings.
The case should proceed to trial without undue delay, according to a timetable including provision for: (a) service by Mr Candy of Further Information about his case; (b) service by the Initial Defendants of an Amended Defence; (c) the further progress of the claims against the Additional Defendants, assuming those claims proceed; (d) the service of witness statements, and other procedural steps necessary to get the case trial-ready.
The main reasons for these conclusions are, in summary, these:
(1) Striking out a case is the ultimate sanction, which is only appropriate in the most serious of cases. It involves, on the face of things, a deprivation of the Convention right to a fair trial.
(2) It is not suggested that the admitted defaults have made a fair trial impossible in this case.
(3) I am not persuaded that I should conclude at this stage, without cross-examination, that the defendants' failures are evidence of a wish to ensure there is no fair trial, or that they amounted to deliberate suppression of documents, as alleged by Mr Candy. Nor do I see any other sufficient ground for concluding that the entry of judgment on the merits is the right response to these procedural failures.
(4) I do not think a trial would be pointless, as argued by Mr Sherborne. There are triable issues as to whether the defendants acted wrongfully. I accept Mr Price's submission that there would remain a substantial argument to be had, even if I granted judgment on liability, as to what form of judgment can properly be entered, given the nature of the case and the state of the pleaded case for Mr Candy. I accept Mr Price's submission that greater clarity is...
To continue reading
Request your trial
-
Tariq Siddiqi v John Aidiniantz
...details of the breaches of confidence complained of. 81 I had to consider the relevant pleading requirements in Candy v Holyoake [2017] EWHC 373 (QB), a claim for breach of confidence, misuse of private information, and breach of the Data Protection Act. I said this: “47. The nature of the......
-
Arnold Mballe Sube v News Group Newspapers Ltd
...never been pleaded before. A claim in either of those wrongs requires proper particularisation: see, for instance, Candy v Holyoake [2017] EWHC 373 (QB) [49]. Nor can it ever be legitimate to plead a case of unfair and unlawful conduct by specifying only some respects in which the conduct i......
-
Anthony Dixon v North Bristol NHS Trust
...of which the claimant alleges would be wrongful, balanced against the defendant's justification for publication (see Candy v Holyoake [2017] EWHC 373 (QB) [47]–[49]). (2) Misuse of private information 13 In his Particulars of Claim, the Claimant states: “For the reasons set out at paragrap......
-
Saeed Akbar v Mohammed Sajead Ghaffar
...and proportionate sanction for that breach – see Biguzzi v Rank Leisure Limited [1999] 1 WLR 1926, 1933A to D and Candy v Holyoake [2017] EWHC 373 (QB) at [31]. In the present instance that ranges from strike out (with or without unless conditionality) through to no remedy beyond that pro......