Nihal Mohammed Kamal Brake v Geoffrey William Guy
| Jurisdiction | England & Wales |
| Judge | Paul Matthews |
| Judgment Date | 25 March 2021 |
| Neutral Citation | [2021] EWHC 670 (Ch) |
| Docket Number | Case No: BL-2019-BRS-000028 |
| Court | Chancery Division |
| Date | 25 March 2021 |
[2021] EWHC 670 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN BRISTOL
INSOLVENCY AND COMPANIES LIST (ChD)
Bristol Civil Justice Centre
2 Redcliff Street, Bristol, BS1 6GR
HHJ Paul Matthews
(sitting as a Judge of the High Court)
Case No: BL-2019-BRS-000028
Stephen Davies QC and Daisy Brown (instructed by Porter Dodson LLP) for the Claimants
Andrew Sutcliffe QC and William Day (instructed by Stewarts Law LLP) for the Defendants
Hearing date: 27 November 2020
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.
Introduction
This is my judgment on a preliminary issue arising in the claim by the claimants for a final injunction and damages in respect of the alleged accessing, retention and deployment by the defendants of emails said to be private and confidential to the claimants and held within three email accounts. As it happens, part of that claim was tried during the same week as this issue, together lasting some five days. The preliminary issue and the part trial were heard first, because the full claim would have taken between 10 and 15 days to try. If the results of this part of the trial and of the preliminary issue show that it is necessary to go on to try the “iniquity defence”, then the time taken by this part of the trial and the preliminary issue will not have been wasted, because these always needed to be decided. But if they show that the trial of the remainder is not necessary, considerable time and money will have been saved. I make clear that I have prepared this judgment first, and only afterwards did I embark on the judgment of the part-trial. In particular, all findings of fact in the latter were made after reaching my conclusions for this judgment.
This claim forms a discrete part of wider ranging litigation between the claimants on the one hand and the defendants on the other. I will not take time here to set out the details of the various claims between the parties, or the factual background which has led them to this point. In my judgment on the part-trial (to be delivered immediately after this judgment) I summarise these matters at paragraphs [4]–[13], and the reader of this judgment is referred to those paragraphs. The present claim (usually referred to by the parties as the “documents claim”) concerns email accounts which were operated by the claimants at the time of their dismissal from the employment of the third defendant in November 2018, and emails and other data held within those accounts, to which the defendants subsequently gained access. The defendants thereafter shared this information with their lawyers and (in part at least) with some others, including the claimants' trustees in bankruptcy.
The claimants make two distinct claims against the defendants. First of all, they say that the defendants in accessing and sharing their information have committed the well-established equitable wrong of breach of confidence. Secondly, they say that the defendants in accessing and retaining their private information have committed the more recently established tort of misuse of private information. This wrong has been developed in recent times, particularly since the Human Rights Act 1998 enacted domestic rules of law equivalent to certain of the rights under the European Convention on Human Rights, and in particular article 8. The defendants deny both these claims. Part of the defence put forward by the defendants is that, even if the factual elements for either of the two claims advanced by the claimants were present (which they deny), in either case the defendants would be entitled to rely on the defence that there was a public interest in accessing, retaining and sharing the emails and the data contained in them. This defence is referred to for convenience (although inexactly) as the “iniquity defence”.
The preliminary issue before the court, and the subject of this judgment, is the question
“whether on the facts pleaded in paragraphs 16–47 and 75 of the Defence the ‘iniquity defence’ is available to the defendants as a matter of law”.
Like the part trial, it was heard remotely, using the Zoom platform, curated by a third party provider. It was also livestreamed over the internet on YouTube.
The claim form was issued on 2 September 2019. On the same day the claimants sought an interim injunction to restrain the defendants from making further disclosure or other use of the emails and information in the accounts. On 26 July 2019 the defendants had applied in existing insolvency proceedings between the same parties for a declaration that the claimants were not entitled to assert legal professional privilege in respect of various of the documents in the account, as having been created in furtherance of an unlawful scheme. These two applications were heard by Mr John Jarvis QC, sitting as a deputy High Court judge, over seven days between 18 November 2019 and 27 November 2019. He gave judgment on 28 November 2019, dismissing the defendants' application as to legal professional privilege, and holding that the claimants were entitled to an interim injunction pending trial in relation to emails and information in the accounts. His order also required the defendants to provide a full copy of one of the accounts to the claimants, so that they could review them, distinguishing between private and business emails. Subject to any dispute between the parties (which would have to be resolved by the court) the claimants would then delete the business emails and defendants would delete the private emails. I shall have to refer to his judgment in more detail later on.
The claimants' submissions
Mr Stephen Davies QC, on behalf of the claimants, made three main submissions on the preliminary issue. First, he said that there was no “iniquity” defence available to a claim in the tort of misuse of private information. Second he said that that defence was not available even in relation to a claim for breach of confidence, unless the information was lawfully received by the defendant; it was not open to a defendant who “breaks into” the claimant's information and takes it unlawfully to rely on this defence. Thirdly, he says that there is no sufficient public interest on which the defendants can rely in this case, because there is no public interest in the past commission of civil wrongs by persons who have no public persona.
The first submission
As to the first of these submissions, Mr Davies QC referred me to the decision of the Court of Appeal in Imerman v Tchenguiz [2011] Fam 116. In that case, the litigation was twofold: first between a divorcing husband and wife, and second between the husband and his brothers-in-law. Lord Neuberger MR, giving the judgment of the court (himself, Moses and Munby LJJ) introduced the case in this way:
“2. These are interlocutory appeals. They arise in the context of ancillary relief proceedings between Vivian Imerman and Elizabeth Tchenguiz Imerman. They raise fundamentally important questions in relation to the so-called Hildebrandrules: see Hildebrand v Hildebrand [1992] 1 FLR 244. A preliminary overview will help to identify the key issues which arise.
3. Fearing that their brother in law [the claimant] would conceal his assets, one of Mrs Imerman's [the wife's] two brothers, possibly with the help of others, accessed a server in an office which they shared with Mr Imerman and copied information and documents which Mr Imerman had stored there. …
4. In summary proceedings in the Queen's Bench Division against the defendants who had gained access to Mr Imerman's documents stored on the server, Eady J on 27 July 2009 restrained the defendants from communicating or disclosing to third parties (including [the wife and her solicitors]) any information contained in the documents and from copying or using any of the documents or information contained therein. He also required the defendants to hand over all copies of the documents to Mr Imerman. The defendants appeal.
5. Mr Imerman sought the return of [the documents and any copies], and an order enjoining [the wife and her solicitors] from using any of the information obtained therefrom. On 9 November 2009 Moylan J decided that [the documents] should be handed back to Mr Imerman for the purpose of enabling him to remove any material for which he claimed privilege, but that Mr Imerman would then have to return the remainder of [them] to Mrs Imerman for use by her in connection with the matrimonial proceedings. Mr Imerman appeals against that decision. Mrs Imerman cross-appeals against the decision, seeking (a) more control over the process by which Mr Imerman can assert privilege, and (b) a reversal of Moylan J's refusal to restrain Mr Imerman from disposing of certain memory sticks.”
Turning to the substance of the decision, Mr Davies QC referred me in particular to paragraph [65] of the judgment of the court, but it is necessary to see that paragraph in its proper context. At [64]–[69], Lord Neuberger MR said this:
“64. It was only some twenty years ago that the law of confidence was authoritatively extended to apply to cases where the defendant had come by the information without the consent of the claimant. That extension, which had been discussed in academic articles, was established in the speech of Lord Goff of Chieveley in Attorney General v Guardian Newspapers Ltd (No...
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