S v Lewis Silkin LLP
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Proudman |
| Judgment Date | 27 February 2015 |
| Neutral Citation | [2015] EWHC 687 (Ch) |
| Court | Chancery Division |
| Docket Number | No. HC-2014-001575 |
| Date | 27 February 2015 |
[2015] EWHC 687 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Rolls Building
Royal Courts of Justice
Mrs. Justice Proudman
No. HC-2014-001575
Mr. J. Rushbrooke QC (instructed by Carter-Ruck) appeared on behalf of the Claimant.
Mr. P. Stanley QC (instructed by Bond Dickinson LLP) appeared on behalf of the Defendant.
This case involves an email account ("the Account") operated by the claimant's solicitor when she was an equity partner at a firm of solicitors ("S").
A dispute arose between the claimant and S, and the claimant left S. The dispute went to arbitration. I have no details of that dispute. The arbitrator has according to the claimant made his award but may or may not be technically functus officio. It is common ground that I am unable to decide whether he is or not on the facts before me. Mr. Rushbrooke QC, leading counsel for the claimant, drew my attention to the only evidence on the question, which is in the claimant's witness statement of 19 January 2015. She says that "the hearing and submissions in those proceedings are completed and the award was made on 31 December 2014." However, it is not clear whether anything remains to be done, for example in relation to costs, and, if so, as to the effect of this on the arbitrator's functions.
The defendant is a firm of solicitors which acted for S in the arbitration. The claimant has brought an action in which she alleges that the defendant accessed the account and read her emails without leave from her and, indeed, contrary to its statement on 14 January 201that:
"We will not proceed with our review of documents contained in your [S] email file until the position has been agreed or determined by [the arbitrator] if we cannot agree."
The claimant had told the defendant by email of 11 January 2013 that the Account contained highly sensitive information (which I will not specify further, save to say that it included medical records and legally privileged emails relating to matters which had nothing to do with the dispute between the claimant and S) and there was an ongoing dispute as to the proper method of resolving the matter. On 15 March 2013 the defendant wrote to the claimant saying:
"We can confirm that we have not commenced a review of the contents of your [S] email account to date (but reserve our right to do so.)"
On 31 October 2013, a list of documents having been produced by S, the claimant complained that the emails on the list could only have been extracted by inspecting all her emails, which included the private emails mentioned above. Although she accepted that there were relevant documents in the Account, which was a work account, she said that they could be accessed by other means, and also said:
"It appears that the respondents have breached my confidentiality, misused my private information, and are in breach of the Data Protection Act."
The defendant replied on 4 November 2013:
"These allegations are without merit and are denied.
The emails disclosed—which have been extracted from your work email account—are relevant to the matters in dispute, are in the respondents' possession and control, and are therefore subject to the standard disclosure obligation. As you know, any claim by you that the contents are personal or confidential does not operate to exempt an email from disclosure.
For the avoidance of doubt, I confirm that no review of any legally privileged emails was undertaken in complying with the respondents' obligation."
The defendant also relied in correspondence on the fact that the Account was the claimant's work account and S had a Protocol which dealt with such matters. There is a dispute as to whether the Protocol applied to the claimant but I was told by the claimant (without contradiction) that the Protocol is in any event not in itself a document in the arbitration reliance on which could amount to a breach of arbitral confidence.
In accessing the Account the defendant operated filters so that its employees did not read email strings containing seven email addresses. The intention was to exclude (a) legally privileged material which had nothing to do with the dispute between the claimant and S and (b) emails to and from the claimant's husband. Three solicitors of or employees at the defendant read the claimant's emails for the purpose of deciding whether they should be disclosed. The defendant says that S did not read them. The claimant says she is "deeply upset" and "shaken to the core" by what she terms "a gross and deliberate invasion of privacy". She alleges it caused her "severe embarrassment and distress" which entitles her to aggravated damages.
The claimant replied to the defendant's email of 4 November 2013 on 11 December 2013, saying that she did not accept that her private emails were within S's power, possession and control or that the provisions about disclosure referred to applied in an arbitration or that there was any power to search them at all in the absence of agreement or order.
The matter was then passed to solicitors instructed on her behalf and there was an argument about S's email policy and its applicability and the terms of the Partnership Deed. On 17 February 2014 the claimant's solicitors wrote a comprehensive letter to the defendant setting out her position.
Proceedings (a claim form and particulars of claim) were issued in this Division on 4 June 2014, claiming, among other things, misuse of private information and breach of confidence including breach of the claimant's human rights pursuant to Article 8 of the Convention on Human Rights.
On 4 July 2014 the parties appeared before Master Teverson and an order was made, effectively with the consent of both parties, to seal the particulars of claim pursuant to CPR 5.4C.
On 7 July 2014 the defendant served an acknowledgement of service, indicating that it would dispute the Court's jurisdiction to hear the matter.
On 17 July 20amended particulars of claim were served. The object was to delete matters of arbitral confidentiality, although the defendant disputes that this was or could be adequately done. No application has been made to seal the amended particulars of claim or otherwise prevent access to them by third parties.
On the same day, 17 July, the defendant issued an application notice seeking a stay in accordance with CPR 11.1(a) on the basis that the Court has no jurisdiction to try the claim. The allegation relied on s.9 of the Arbitration Act 1996. There was an alternative claim under CPR 11.1(b) that, if it did have jurisdiction, the Court should not exercise it.
On 6 January 2015 the defendant served an amended application notice, abandoning its claim under CPR 11.1(a) and confining the relief sought to a stay under CPR 11.1(b) plus CPR 3.1(2)(f) and the inherent jurisdiction:
"until such time as the claimant has obtained a ruling from the Arbitrator… or (as appropriate) from the Court, in accordance with s. 44 of the Arbitration Act 1996 to the effect that (a) the matters raised by the Amended Particulars of Claim and/or any Defence served by the Defendant will not amount to a breach of arbitral confidence and (b) the conduct and trial of these proceedings will not amount to a breach of arbitral confidence."
The application went on:
"The Defendant seeks an order in these terms because the Amended Particulars of Claim breach the confidence of the arbitration proceedings… and the Defendant is unable to defend the claim without breaching its own obligations of confidentiality to its client in the arbitration and in respect of arbitration proceedings generally, and because the Claimant ought, pursuant to s.1 of the Arbitration Act 1996, to seek permission of the Arbitrator or, if the Arbitrator is unable to act, of the Court, before making use of the information that is subject to a duty of confidentiality by virtue of the Arbitration Agreement."
Mr. Stanley QC, leading counsel for the defendant, points out that it is a coincidence for my purposes that the claim is for breach of confidential information as the same principles apply in all cases. Mr. Rushbrooke says that the facts are important as the claim is so strong that there can be no defence. In any event, equity treats that as done which ought to be done, so that there is no point, whatever the position in law, in the claimant seeking permission of any tribunal as it is bound to be given.
Mr. Rushbrooke further submitted that the whole application smacks of artificiality; S clearly knows all about the action and the defendant is merely S's stooge, deployed to create trouble. He says that the claimant's strong suspicion is that S is paying all the defendant's costs of the proceedings. I cannot however make any such assumption. The same principles would apply whether or not that was the case.
Mr. Rushbrooke also took the Court to the authorities, which emphasise that the power of the Court to stay proceedings should be exercised only in "rare and compelling circumstances": Amlin Corporate Member Ltd v Oriental Assurance Corporation. That is common ground; the issue is whether this is such a circumstance.
Mr. Stanley asked for an order that the hearing be held in private in accordance with CPR 39.2(3). I was also asked to order that no non-party should be provided with any documents from the court records relating to this claim save by order of the Court following a hearing made on notice pursuant to CPR 5.4C(4)(d). Mr. Rushbrooke supported the former request...
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