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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> IG Index Ltd v Cloete  EWHC 3698 (QB) (21 December 2015)
Cite as:  EWHC 3698 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Judge of the High Court
| IG INDEX LIMITED
|- and -
|JOHANNES HENDRIK CLOETE
David Hirst (instructed by Pinder Reaux & Associates) for the Defendant
Hearing dates: 4th December 2015
Crown Copyright ©
HHJ Parkes QC:
"Although I have no evidence that [the defendant] has used or disclosed these documents, other than to the Information Commissioner … , and to [the claimant] as part of the disclosure process in the employment tribunal proceedings, I am concerned that he may do so in further breach of the terms of the Deed of Covenant."
"Until the trial of this action, the respondent shall not reproduce, copy, use, divulge, communicate or disclose or make use of (or attempt so to do) to any person, firm or company whatsoever any confidential information or trade secret concerning the business and or private affairs of the applicant of which he is or may become possessed and which came to his knowledge during his employment with the applicant, except as required by a court of law or any regulatory body or that which may be or become part of the public domain other than through any act or default by the respondent, or for the purposes of taking legal advice or, to the applicant, or its legal representatives, in connection with the respondent's claim against the applicant in the employment tribunal under claim number 2204349/2012."
i) He said that on 21 February 2012 he had made a report by email to the ICO, without disclosing any files, and that on 27 February 2012, while still in the claimant's employment, he had printed off and sent the documents to the ICO, because he did not believe that the claimant had properly addressed his security concerns. At that time he had only had in his possession hard copies of the documents.
ii) The documents came back into his possession following the subject access request which he made to the ICO on 17 December 2012. The documents were attached to an email which he received on 16 January 2013 in response to his request.
iii) However, he did not appreciate at the time he received the email that the documents were attached to it. He had expected to be sent the cover pages which he had typed to describe and explain the hard copy documents sent to the ICO on 27 February 2012, because they would have been his personal data, and would have sufficed to prove that he had made the report that he claimed to have made.
iv) When he received the email on his iPhone, it was 'not immediately apparent' that he had received the confidential information, because he could not see that material as multi-page attachments in his iPhone.
v) He had complied with the order of Singh J by deleting 'all electronic copies' of the claimant's information, and had not retained any copies, and confirmed that he would comply with the terms of the injunction restraining use of the information.
i) He made the request to the ICO to rebut the claimant's contention that the relevant data files did not exist and that he had never complained to the ICO in writing. It was a request for personal data held about him. When he received the 16 January 2013 email from the ICO, only the first page of each .TIFF attachment was visible, and those were his own typed cover pages, originally sent to explain the documents sent by him in hard copy, which he had expected to receive. The ICO email had referred to redactions made at the claimant's request, and he assumed that the claimant had been consulted about the request and would have asserted confidentiality in respect of the data files which he had sent on 27 February 2012. Therefore he had neither known nor guessed that the claimant's confidential material had been sent to him.
ii) Moreover, at a case management hearing held in the ET proceedings in early 2013 and on other occasions, he had specifically asked for disclosure of the documents contained in the letter that he had sent to the ICO, which he would hardly have done had he known that he already had them in his possession.
iii) In the course of disclosure in the ET proceedings he disclosed all the documents in his possession (including the ICO email of 16 January 2013) by copying them onto a USB drive from his laptop computer. He did not open the .TIFF attachments when he saved them to disc (he apparently means when he saved them to the USB drive) because he did not have time as he was at work. Nonetheless, he converted the text in the body of the ICO emails to .PDF files, placed it in a sub-folder on the USB drive, and put the attachments into further sub-folders, without reading them.
iv) He kept on his laptop a 'mirror copy' of the material which he had copied onto the USB drive. In his witness statement dated 4 December 2015, he explained that the mirror copy was placed in a Dropbox folder.
v) He had not received the claimant's posted letter before action because he was moving at the time, nor Ms Bornor's emailed letter before action, apparently because she did not use her 'typical' email and it was categorised as promotional material (presumably he means spam) by Gmail. He had not been telephoned about the threatened proceedings by Ms Bornor or Mr Morton, the claimant's solicitor, although his number had not changed and Mr Morton had often called him about the ET proceedings.
vi) He did not know that he had the confidential information in his possession until he was served personally on 7 August 2013 with the claimant's notice of application. He was then able to ascertain, although it took him some time that week to work out what had happened, that the ICO had sent him the same information that he had himself sent to the ICO in hard copy on 27 February 2012.
vii) At the time of the 15 August hearing, he had two electronic copies of the confidential information to use in the ET case. In compliance with the order of Singh J, he deleted the .TIFF files saved in his copy of the contents of the USB drive and in the original email from the ICO. He regarded the result of Singh J's order as being that he was allowed to retain one copy for that purpose, but 'went too far' and deleted all the data. He had complied with the judge's order of 15 August 2013 by deleting all the files irretrievably and retaining no copies.
THE IMPLIED UNDERTAKING ISSUE
THE PRESENT APPLICATION
"I am afraid I cannot accept that there is any realistic prospect of a trial yielding any tangible or legitimate advantage such as to outweigh the disadvantages for the parties in terms of expense, and the wider public in terms of court resources."
" …. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.
 If we were considering an application to set aside permission to serve these proceedings out of the jurisdiction we would allow that application on the basis that the five publications that had taken place in this jurisdiction did not, individually or collectively, amount to a real and substantial tort. Jurisdiction is no longer in issue, but, subject to the effect of the claim for an injunction that we have yet to consider, we consider for precisely the same reason that it would not be right to permit this action to proceed. It would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where so little is now seen to be at stake."