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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 >> Bains & Ors v Moore & Ors  EWHC 242 (QB) (15 February 2017)
Cite as:  EWHC 242 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
sitting as a Deputy Judge of the High Court
| (1) HARMINDER BAINS
(2) LAURIE KAZAN-ALLEN
|- and -
|(1) ROBERT MOORE
(2) K2 INTELLIGENCE LIMITED
(3) MATTEO BIGAZZI
for the Claimants
Desmond Browne QC & Adam Speker (instructed by Grosvenor Law)
for the Defendants
Hearing dates: 31st January and 1st February 2017
Crown Copyright ©
Sir Michael Tugendhat:
"The Claimants' claims arise from (a) the Defendants' activities from about 2012 which consisted of the First Defendant acting with and on behalf of the Second Defendant and/or Third Defendants', infiltrating the Claimants' anti-asbestos campaigners' network, obtaining their personal, private and/or confidential information and disclosing it to the Second and/or Third Defendants who were at all material times acting on behalf of clients with interests in the asbestos industry; and (b) the onward disclosure of that information by the Second and/or Third defendants to their clients".
The relief claimed includes (1) damages for breach of confidence and/or misuse of private information; (2) compensation pursuant to the Data Protection Act 1998 s13; (3) an injunction to restrain the Defendants from using and/or disclosing the said information; (4) further relief under the Data Protection Act 1998 with which I am now not concerned; (5) delivery up and/or destruction and/or permanent deletion of all documents containing the said information; and (6) account of profits.
9. In this order:
(a) References to "Project Spring" are references to the project which lasted between about June 2012 and October 2016 whereby the First Defendant allegedly engaged in espionage against the Claimants and the ban asbestos network under the direction of the Second and Third Defendants.
(b) References to the Confidential Information are references to:
(i) Any information provided by or derived from communications from the First Defendant pursuant to "Project Spring";
(ii) The categories of information set out in Confidential Schedule 3 to this Order.
(d) References to "the Client" are references to any individual, company or other entity which, directly or indirectly, provided instructions or funding to the Second or Third Defendant pursuant to Project Spring, or which received any information from the Second or Third Defendant pursuant to Project Spring."
(1) Files and documents relating to the Rotterdam Convention Alliance (ROCA) including: (a) email communications between members of the mailing list of ROCA; (b) Minutes of Skype calls between members of ROCA.
(2) Files and documents relating to the 7th and 8th Conference of States Parties of the Rotterdam Conference (COP) including: (a) email communications relating to the COP; (b) Video and audio footage recorded at the COP; (c) notes of meetings held in preparation for, and, at, COP.
(3) Files and documents relating to the Asian Ban Asbestos Network (ABAN) including: (a) email communications relating to the ABAN; (b) records of meetings held by the ABAN (including Thailand, Bangladesh, Vietnam, Indonesia); (c) Records of interviews carried out with the members of ABAN; (d) Records of interviews with, and communications with Dr Tran of the Ministry of Health Vietnam.
(4) Files and documents relating to international conferences and meetings organised by the anti-asbestos campaign including: (a) the meeting of the Asbestos Diseases Awareness Organisation in Washington in 2012; (b) the International Mesothelioma Conference in Birmingham in May 2016.
(5) Files and documents protected by legal professional and/or litigation privilege of the Claimants or any of them or any individuals or organisations that each or any of them was acting on behalf of including: (a) email communications with and between legal representatives; (b) notes of meetings with solicitors and/or counsel; (c) records of the Claimants' funding arrangements; (d) documents recording advice received from legal representatives; (e) documents containing expert evidence including environmental assessments: (f) email communications concerning litigation strategies and negotiating positions.
(6) Files and documents relating to interviews with the victims of asbestosis and/or mesothelioma in the UK and abroad including: (a) video interviews conducted by VNP relating to ETEX'S asbestosis victims; (b) video interviews and notes taken by the First Defendant.
(7) Files and documents relating to interviews and/or meetings with anti asbestos activists and campaigners in India, Thailand, Bangladesh, Vietnam and Indonesia.
(8) Files and documents concerning the personal affairs of the Claimants.
(9) Files and documents concerning the financial affairs of the Claimants."
"DELIVERY UP AND DELETION
11. Subject to the savings of paragraph 13 below…the Second and Third Defendants shall, by 4pm on [date] 2017 deliver up to the Claimants' solicitors Leigh Day to be preserved and securely held by them:
(a) Copies of the following containing the Confidential Information or any part of it as are in his custody or control including but not limited to:
i. Any/or all hard copy documents;
ii. Any/or portable/digital external storage media containing electronic copy documents;
iii. One electronic copy of each document held electronically;
iv. Any notes, reports, index or catalogue based on or derived from the Confidential Information.
(b) Copies of all reports, communications, notes of meetings and audio or video recordings of meetings prepared for the purpose of Project Spring by the First Defendant and/or Second Defendant and/or Third Defendant which were provided to the client.
(c) All time sheets for the period from 1 February 2013 to 1 October 2016 submitted by the First Defendant to the Second or Third Defendant.
12. Subject to the savings at paragraph 13 below… the Second and Third Defendants shall, by 4pm on [date] 2017 cause the Confidential Information to be permanently deleted from all devices and computer systems within their custody or control.
13. The Second and Third Defendant's solicitors be permitted to retain one hard copy and one electronic copy of the Confidential Information by the Second and Third Defendants to them to be held by them on the following terms:
(a) It shall be held securely and treated as confidential;
(b) It shall be used solely for the purpose of these proceedings;
(c) It shall be destroyed or permanently deleted at the conclusion of these proceedings or at such earlier date as may be agreed with the Claimants' solicitors;
(d) The Second and Third Defendant's solicitors shall confirm the destruction or permanent deletion carried out pursuant to sub-paragraph (c) above in a witness statement verified by a statement of truth".
"a. the delivery up application… [these Defendants] have said that they are prepared to deliver up documents at this stage which were obtained or generated or created in the course of their relationship with [the First Defendant] which  referred to each of the Claimants, and if and only if they are arguably confidential and/or private information and/or  contain personal data about each of the Claimants
b. [these Defendants] are prepared to consent to this limited form of order but not to an order in the terms sought…
c. [these Defendants] would continue to submit to an interim injunction against communication or disclosure but only in a narrower form.
d. the stance they take now remains the same as it was going to be (and the Claimants were informed it was going to be) before Elisabeth Laing J had there been time to hear this application.
e. the Joinder Application…[these Defendants] consent to the joinder of Rory O'Neill but not to the other three individuals… none of the other three raise an arguable case that their private and/or confidential information has been misused and none of them put forward proper reasons to be joined in this litigation…"
"73... [counsel for the claimant] told the judge that it was normal practice in claims for confidentiality injunctions for the service of particulars of claim to be deferred until after the application for an interim injunction has been dealt with. If that is the normal practice, I consider that it should be discontinued. Like Tugendhat J, I consider that it is in the interests of justice and the efficient and fair conduct of proceedings that the claimant's case be defined and pleaded as soon as possible, so that the defendant knows precisely what is the case against her, and so does the judge…"
"If a wrongdoer includes material of his own and adds it to material which he has taken from the plaintiffs in my judgment he cannot complain if equity demands that when he has been found out he should deliver up the documents, even though they may now contain information of his own."
"…used his status as a journalist as a form of cover, acting on the pretext that he was interested in making a documentary about the dangers of asbestos to win the trust and confidence of the Second Claimant and to use that in order to get private, personal and confidential information from her, and that he would use her to vouch for him with others in the network, including the First and Third Claimants. That in turn would enable him to get such information about them and the network from others. In particular, the First Defendant got information on the further pretext that he wanted to set up an anti-asbestos charity called "Stop Asbestos". As a result of this, over the course of four years from 2012, the First Defendant obtained a large amount of personal, private and confidential information and other information, ranging from information about health to sensitive information about the funding, aims and strategies of the Network, including litigation strategies."
"I have been shown some of the e-mails which indicate the extent to which the First Defendant and the Second Defendant were engaging in a sophisticated and conscious process of manipulating, particularly I think, the Second Claimant, in order to enable the First Defendant to insinuate himself into her confidence, so that he in turn could get confidential information from her; and I would be amazed if the client was not aware of that strategy. So it seems to me pretty clear, on the limited information I have, that the client must have been involved in wrongdoing and that is an inference I am prepared to draw on the material I have seen."
"… It is absolutely clear that the First Defendant was using his status as a journalist as a way of insinuating himself into the confidence of the Claimants, but in order to get from them information which they and he understood was sensitive and confidential… It does not matter what the purpose of the investigation was. What the investigation has resulted in is the obtaining by the First Defendant, and then by the Second Defendant and the Third Defendant of sensitive and confidential information about the Claimants."
First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be "wrong" in the sense described by Hoffmann J [in Films Rover Ltd v Cannon Film Sales Ltd  1 WLR 670].
Secondly in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving any status quo.
Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able establish this right of trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less would be the risk of injustice if the injunction is granted.
"it must be borne in mind that the courts emphasised the importance of freedom of expression or speech long before the enactment of Human Rights Act 1998. See Halsbury's Laws of England (4th ed.reprint), Vol 8(2) paragraph 107 and cases there cited".
"(3) No such relief is to be granted so as to restrain publication before trial unless the court is satisfied that the applicant is likely to establish that publication should not be allowed.
(4) The court must have particular regard to the importance of the Convention right to freedom of expression…"
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
"All of the people whose trust [the First] Defendant has betrayed will want to know what information he has provided and to whom. The Claimants feel they cannot properly advise their colleagues around the world about what steps they should be taking to mitigate the harm arising from the Defendant's conduct without a clear and complete picture of what he has done".
"As with all actions, libel actions should by proper case management be confined within manageable and economic bounds. They should not descend into uncontrolled and wide ranging investigations akin to public inquiries, where that is not necessary to determine the real issues between the parties".
No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so. ..But the party complaining must be the person who is entitled to the confidence and to have it respected. He must be a person to whom the duty of good faith is owed. It is at this point that I think Mr Fraser's claim breaks down. There is no doubt that Mr Fraser himself was under an obligation of confidence to [his client]. The contract says so in terms. But there is nothing in the contract which expressly puts the [client] under any obligation of confidence…It follows that they [the client] alone have any standing to complain if anyone obtains the information surreptitiously or proposes to publish it.
"unless the confidential information is properly identified, an injunction in such terms is of uncertain scope and may be difficult to enforce… Secondly, the defendant must know what he has to meet. He may wish to show that the items of information relied on by the plaintiff are matters of public knowledge. His ability to defend himself will be compromised if the plaintiff can rely on matters of which no proper warning was given. It is for all these reasons that failure to give proper particulars may be a particularly damaging abuse of process".
(10) As a general rule an action for breach of confidentiality may be brought only by a person to whom the duty in question is owed, but exceptionally an action for protective relief may be brought by someone having responsibility to protect the welfare of that person".
"I believe I have established a good relationship with LKA… for a first meeting, I think LKA has given me a huge amount of information, which I have been further able to build on and contextualise this week by researching her leads. She's begun to tell me about her background and the origins of her campaign against asbestos. As discussed, I resisted pushing too hard in this area because I did not want to give her the impression my interest was already focused on her… she has invited me to a number of events I could attend in the coming weeks and months. Not all of these are open to the media or the public and she's asked me to email a formal request to her, explaining my interest etc, which she can pass on to others because I will need their approval too. See section "Upcoming Events" below. She has also suggested people I should meet and other areas to research."