Nicholas Anthony Christopher Candy v Mark Alan Holyoake and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby |
| Judgment Date | 22 November 2017 |
| Neutral Citation | [2017] EWHC 2943 (QB) |
| Court | Queen's Bench Division |
| Date | 22 November 2017 |
| Docket Number | Case No: HQ15X05215 |
[2017] EWHC 2943 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Warby
Case No: HQ15X05215
David Sherborne and Andrew Fulton (instructed by Rechtschaffen Law) for the Claimant
James Price QC and Alexandra Marzec (instructed by Carter-Ruck) for the Defendants
Hearing date: 14 November 2017
Judgment Approved
Introduction
In Ibiza one summer evening in 2010 the claimant, Mr Candy, engaged in some embarrassing behaviour when heavily intoxicated. The second defendant, Mrs Holyoake, recorded it on her phone. Mr Candy knew this at the time, or at least for some of the time. The morning after, Mr Candy asked for deletion of what had been recorded ("the Recording"). Some of the Recording was deleted but some survived.
Prompted by what he interprets as threats made in 2014, Mr Candy brought this action against Mrs Holyoake, her husband, and a third defendant in December 2015. The fourth and fifth defendants were added to the claim in November 2016. In its present form, the claim against all defendants is for injunctions to restrain disclosure or dissemination of information; for delivery up, destruction or erasure of the information; and for disclosure of the identities of those to whom the information has been disclosed. The claims as they stand are in breach of confidence, misuse of private information, and data protection. As set out in the Amended PoC ("PoC"), they relate to the Recording.
The other defendants, besides Mr Holyoake, are three business associates of his: Messrs Wells, Lovering, and Pym. Mr Candy's pleaded case is that the five defendants shared an intention and participated in a scheme to intimidate him in the context of a business dispute by deploying the Recording against him.
There has been one substantial hearing in the case before me. In late February 2017, I heard applications by Mr Candy for judgment to be entered against all five defendants without a trial, and an application by the defendants for an order requiring Mr Candy to provide a further and better response to a Part 18 Request made on 28 October 2016. I dismissed Mr Candy's application for judgment against the first three defendants, and he did not press the other application. I granted the defendants' application. The judgment handed down on 2 March 2017, [2017] EWHC 373 (QB) ("the First Judgment"), gives a more detailed account of the background and genesis of the claim, and its procedural history. I shall have to return to some of that, but it is unnecessary to repeat the detail here. What is relevant for present purposes is the order I made on 2 March 2017.
By paragraph 1 of the order I directed that "By 4pm on 16 March 2017 the Claimant shall file and serve a replacement Part 18 Response to the First to Third Defendant's request of 28 October 2016, supplying the information requested in the request." I also gave detailed procedural directions, to ensure the matter progressed to trial. It has since been listed for trial over 2–3 days in March 2018.
In the meantime, on 16 March 2017, a replacement Part 18 Response ("the Second Response") was served on behalf of Mr Candy, in purported compliance with my order. The defendants maintain that this document fails to supply all the information requested, and that Mr Candy is therefore in breach of my order.
The applications
The first of the two applications that are before me today is the defendants' application by notice dated 13 June 2017 for an order that the claim be struck out and judgment be entered for the defendants on the grounds of non-compliance with the Court's order of 2 March 2017 and/or on the grounds that the PoC are "unreasonably vague and incoherent in that they fail to set out the items of information alleged to be private and confidential". In the alternative, the defendants seek an "unless" order requiring a proper answer to the Part 18 Request and dismissing the claim if that is not forthcoming.
The defendants' position is that they have made concessions and offers to Mr Candy in respect of the Recording, which afford him all the relief to which he is properly entitled. Their primary case is that any residual claim in confidence, privacy or data protection is fatally flawed for lack of adequate particularity, and should therefore be struck out on both the grounds identified. An "unless" order would simply lead to the further waste of costs on what they say is a grossly disproportionate piece of litigation.
The second application that is before me today is more recent. It is made by Mr Candy. By notice dated 8 November 2017, he seeks permission to re-amend his PoC to add two further causes of action, namely unlawful means conspiracy and conspiracy to injure and, in an Amended Confidential Schedule, to plead some further details of the existing claims.
Mr Candy's case is that if (which he disputes) there is any deficiency in the Second Response it is made good by the proposed amendments to the Confidential Schedule, which should be allowed, with the consequence that the strike-out application falls away. He further argues that if (contrary to his primary case) he is unable to claim that the information which he seeks to protect is confidential and/or private he has at least an arguable claim for the same substantive relief as a remedy to prevent the implementation of a conspiracy involving all five defendants. The defendants' position is that the draft amendments to the Schedule fail to cure the deficiencies of the Second Response, and the draft pleading fails to disclose any reasonable cause of action for conspiracy.
Hearing in private
This judgment follows a hearing of those applications which took place largely in private, pursuant to CPR 39.2(2)(a), (c) and (g) as I considered this was necessary, in order to avoid prejudice to the rights asserted by Mr Candy. It is possible to set out much of the relevant factual picture in this public judgment. However, as with my First Judgment there are aspects of the facts that must be kept confidential for the same reason. This judgment is therefore prepared in two versions: a public version which contains redactions and a full private version which will not be available, and reporting of which will be prohibited, until trial or until some different order is made. The reasoning on this occasion is essentially as it was in March 2017, for which see the First Judgment at [8]–[10].
Procedural background
Events up to 2 March 2017
It is necessary first to recall some key features of the procedural background to the Order of 2 March 2017, and the reasons why that order was made. The first point to note is that, in its origin, the claim related only to the Recording. As I said in the First Judgment:
"17 …
(2) In the Particulars of Claim complaint was made of dealings with 'the Document'. The 'wrongful acts' complained of were (a) the keeping and retention of the Document by Mr and Mrs Holyoake, despite the requests and an alleged promise to delete; (b) its disclosure to Mr Wells; and (c) its keeping or retention by him."
18. … the day on which the Recording was made was Saturday 12 June 2010. The case pleaded in the Amended Particulars of Claim is that on that day
"… the First and Second Defendants came into possession of a document as identified in paragraph 2 of the Confidential Schedule to these Particulars of Claim ('the Schedule') in the circumstances as described therein ('the Document')."
Paragraph 2 of the Confidential Schedule contains this definition: "The Second Defendant filmed the Claimant's drunken behaviour on her iPhone ('the Document')."
The Amended PoC go on to make allegations of wrongful dealings or threats to deal wrongfully with "the Document". Details are set out in the First Judgment at [19]–[21]. At [41] of the First Judgment I held that these passages in the PoC
"… show that generally speaking the claim is presented as one concerning 'the Document', that is, the Recording. It is the Document/Recording that is said to be private and confidential and to 'constitute', not contain, his personal data. The wrongful acts alleged are dealings with the Document/the Recording or the processing of the personal data."
There were some references in the PoC to the "contents" of the Document. As to these I said this in the First Judgment:
"It is true that there are some passages in Mr Candy's statements of case that refer to the contents of the Document, but these are few and disparate…. These references represent departures from the general theme. They do not of themselves alter the nature of the case set out in the body of the Particulars of Claim. There is at best a tension or ambiguity within the claimant's statements of his case. …"
Secondly, the claim as originally presented was concerned only with those parts of the Recording (or "Document") that had survived Mrs Holyoake's deletion efforts of June 2010. That is obvious from the fact that the claims were that the defendants had "retained" or "kept" the Document despite requests "to delete the same", and that Mr and Mrs Holyoake had "disclosed" and/or "provided" others with the Document.
The first to third defendants (the only ones sued to start with) responded to the claim accordingly.
(1) Their Defence of February 2016 was pleaded on the footing that "…The subject-matter of the claim is a digital film, not any information set out or contained in the Confidential Schedule…" The defendants declined to plead as to "the content of the digital film" on the grounds that "…no allegation is made in the...
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