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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 >> Holyoake v Candy & Anor  EWHC 52 (QB) (24 January 2017)
Cite as:  EWHC 52 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Mark Alan Holyoake
|- and -
|(1) Nicholas Anthony Christopher Candy
(2) CPC Group Limited
Timothy Pitt-Payne QC and Christopher Knight (instructed by Grosvenor Law) for the Defendant
Hearing dates: 12-14 December 2016
Crown Copyright ©
Mr Justice Warby :
(1) Whether the defendants carried out adequate searches in response to the narrowed SARs ("the Search Issue");
(2) The validity of Mr Candy's reliance on the LPP Exemption ("the LPP Issue").
The Chancery Proceedings
The Injunction Proceedings
The SARs and this action
(1) all personal data of mine relating to my personal assets and financial affairs in any format and media including, but not limited to, CCTV footage, sound recordings, correspondence and email communications;
(2) all personal data of mine created pursuant and/or in relation to the production of a net statement of my personal assets to CPC by Mr David Wells on my behalf on 20 October 2011 and any subsequent statements about and additional disclosures of my personal assets (ie, any file notes, emails or other information containing my personal data which relates to my personal net asset statement);
(3) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any employee, agent or other representative of USG Security Limited ("USG");
(4) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any employee, agent or other representative of DPM Facilities Limited ("DPM");
(5) all communications, documents or other information containing my personal data which are held by you and which have passed to or from any third party (other than USG or DPM) for the purposes of an investigation or surveillance of me or any of my family or colleagues.
(3) all communications, documents or other information containing my personal data and passing between any director, employee or agent of CPC and any employee, agent or other representative of [USG]
(4) all communications, documents or other information containing my personal data and passing between any director, employee or agent of CPC and any employee, agent or other representative of [DPM]; and
(5) all communications, documents or other information containing my personal data and passing between any director, employee or agent of CPC and any third party (other than USG or DPM) for the purposes of an investigation or surveillance of me or any of my family or colleagues.
"... we do not consider that the SAR has been made for a reason which conforms with the purpose of the DPA. We consider that the SAR is an abuse of the rights conferred by section 7 of the DPA and that – if an application were made to the Court under DPA section 7(9) – the Court would refuse to grant any relief. As a result [Mr Candy and CPC] do not propose to comply with your request.
.... the SAR has been made for one reason and one reason only, which is to seek early disclosure of evidence to support your clients' claims in the litigation."
(1) "From: Steven SmithSent: 02 April 2012 11:36To: Cliff KnuckeySubject: Criminal checksCliffFurther to our conversation I set out below the two individuals that we need Criminal checks on.1. Mark Alan Holyoake [details of date of birth and residential addresses followed]2. David Wells [ditto]If you need anything else let me knowSMSCPC Group Limited"
(2) "From: Cliff KnuckeySent: 04 April 2012 10:38To: Steven SmithSubject: RE: Criminal checksSteven,I have checked and neither individual has any criminal convictions for which they have received a term of imprisonment of in excess of 2 years and 6 months.If either man has received a prison sentence of less than 2 years 6 months, under the Rehabilitation of Offenders Act, such convictions are treated as 'spent' after ten years. Any fines, probation, etc, are treated as 'spent' after 5 years. We cannot get details of 'spent' convictions.Kind regardsCliff KnuckeyChief ExecutiveHermes Forensic Solutions Ltd"
(3) At 10.47 on 4 April 2012 Mr Smith forwarded this response to Chris Candy and Tim Dean, with copy to Mr Candy.
(4) Chris Candy replied immediately as follows: "If he was in jail in the last 10 years, for under 2 years, it would have shown up, correct?"
No reply to that question has been disclosed.
"54. It will be noted that the unexplained assertion in those letters as regards the alleged surveillance or investigation of him or those close to him is not expanded upon by Mr Shilpen Savani of gunnercooke, or by Mr Holyoake, in their witness statements in support of the claim. Extraordinarily, neither statement even mentions the matter.
55. Outside any investigation relating to legal proceedings, which would in any event be exempt from disclosure in response to the SARs under paragraph 10 of Schedule 7 to the DPA 1998, the Defendants have confirmed to me that neither USG nor DPM or any other third party have been instructed by them to investigate or carry out surveillance of Mr Holyoake, his family or colleagues."
The distinction drawn in paragraph 55 between investigation and surveillance is to be noted.
(1) Mr Candy's response to the narrowed SARs is as follows:a. In relation to the USG Request, some of Mr. Holyoake's data exists within this category. However, such data is exempt from s 7 by virtue of the LPP Exemption as the personal data processed was the subject of litigation privilege.b. In relation to the DPM Request, no such data was processed by Nick Candy at the time of the request.c. In relation to the Third Party Request, no data was processed by Mr Candy at the time of the request which amounted to personal data of Mr Holyoake which had been passed between him and any third party for the purposes of surveillance of Mr. Holyoake. In respect of data which amounted to personal data of Mr Holyoake which had passed between CPC and any third party for the purposes of investigations of Mr Holyoake Mr Candy disclosed the four Knuckey Emails set out above.
(2) CPC's response is this:a. In relation to the USG request, no such data was processed by CPC at the time of the request.b. Similarly, in relation to the DPM request: no such data was processed by CPC at the time of the request.c. In relation to the Third Party Request, CPC's response was materially identical to that of Mr Candy: it disclosed the four Knuckey Emails.
The Legal Context
"(1) Subject to the following provisions of this section and to sections 8, 9 and 9A, an individual is entitled –
(a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller,
(b) if that is the case, to be given by the data controller a description of –
(i) the personal data of which that individual is the data subject,
(ii) the purposes for which they are being or are to be processed, and
(iii) the recipients or classes of recipients to whom they are or may be disclosed.
(c) to have communicated to him in an intelligible form –
(i) the information constituting any personal data of which that individual is the data subject, and
(ii) any information available to the data controller as to the source of those data …"
"The obligation imposed by section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless – (a) the supply of such a copy is not possible or would involve disproportionate effort …"
"Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege …could be maintained in legal proceedings."
"If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request."
"For the purpose of determining any question whether an applicant under subsection (9) of section 7 is entitled to the information which he seeks (including any question whether any relevant data are exempt from that section by virtue of Part IV) a court may require the information constituting any data processed by or on behalf of the data controller … to be made available for its own inspection but shall not, pending the determination of that question in the applicant's favour, require the information sought by the applicant to be disclosed to him or his representatives whether by discovery … or otherwise."
"55.— Unlawful obtaining etc. of personal data.
(1) A person must not knowingly or recklessly, without the consent of the data controller—
(a) obtain or disclose personal data or the information contained in personal data, or
(b) procure the disclosure to another person of the information contained in personal data.
(2) Subsection (1) does not apply to a person who shows—
(a) that the obtaining, disclosing or procuring—
(i) was necessary for the purpose of preventing or detecting crime, or
(ii) was required or authorised by or under any enactment, by any rule of law or by the order of a court,
(b) that he acted in the reasonable belief that he had in law the right to obtain or disclose the data or information or, as the case may be, to procure the disclosure of the information to the other person,
(c) that he acted in the reasonable belief that he would have had the consent of the data controller if the data controller had known of the obtaining, disclosing or procuring and the circumstances of it, or
(d) that in the particular circumstances the obtaining, disclosing or procuring was justified as being in the public interest.
(3) A person who contravenes subsection (1) is guilty of an offence."
The Abuse Issue
"I do not deny that I may in due course wish to deploy the information or data disclosed to me in these proceedings … in [the Chancery Proceedings] as is my right. However, this is only because I believe that: (a) they will show conclusively that I have been subject to grossly unlawful and indeed criminal interferences with my right to privacy and (b) that such evidential matters are highly relevant to my claims in the Chancery Proceedings, including my claim that I have been the victim of an unlawful means conspiracy and my new claims relating to the breach of my privacy and data protection rights."
(1) that the unlawful means employed in the conspiracy already alleged in the Chancery Proceedings included "unlawful processing of [Mr Holyoake's] personal data .. misuse of [his] private information contrary to the common law and the criminal obtaining of personal data or information in personal data relating to [Mr Holyoake and Mr Wells] … contrary to s 55 DPA (such conduct amounting to an offence under section 55(3) therein)";
(2) further and alternatively, relief under ss 13 and 14 of the DPA and/or damages at common law for the misuse of Mr Holyoake's private information.
(1) Reliance on the Knuckey Emails (paragraph 116A ff). These are said to show that in 2012 Mr Smith, acting on his own behalf and other "conspirators", instructed Mr Knuckey to obtain and did obtain criminal record information which he then passed on to Mr Candy, Christian Candy, and Mr Dean.
(2) Allegations of covert investigation and surveillance of Mr Holyoake by the Chancery Defendants (paragraphs 150A – 150D). Reliance is placed on the November Documents in support of allegations that DPM were engaged to carry out such activities between August and October 2013. It is further alleged that one Vladimir Tarasov was engaged for similar purposes in 2014.
(3) There is also a complaint (at paragraph 150E) that the "unlawful failure" of Mr Candy and CPC to provide Mr Holyoake with the data requested by his SARs has "necessarily substantially inhibited his ability to plead fully his allegations of breach of the DPA and misuse of his private information."
The Search Issue
Failure to state that clients were questioned
Failure to search private email accounts
(1) The Knuckey Emails were corporate communications sent to and from corporate email accounts.
(2) The evidence is that Mr Candy's private gmail account, which was searched, contained no personal data of Mr Holyoake whatever.
(3) It follows that the USG data that are held by Mr Candy were not found in any private email of his.
The LPP Issue
(1) Litigation privilege arises where a document has been brought into existence for the sole or dominant purpose of use for litigation.
(2) Litigation need not have begun for the privilege to apply. It must, objectively assessed, reasonably be in prospect.
(3) The contemplated litigation need not be the litigation in which the claim to privilege is asserted.
(4) For the privilege to apply, communication must be either between client and advisor, or advisor and third party. Communications between client and third party are not of themselves protected.
(5) However, where the third party is acting as the advisor's agent, communications between the client and the third party are protected. Indeed, where the client engages in communication with a third party with the intention of providing the fruits of any enquiry to his advisor, the client may himself be the agent of his advisor, and the privilege applies.
(6) Litigation privilege arises where a client obtains advice or assistance for litigation purposes from a non-lawyer acting in his professional capacity, whatever that capacity might be.
(7) Litigation privilege may be lost by waiver, or disapplied where it [is] designed to act as a cloak for crime or fraud.
(8) The claim to privilege must be correctly made and this is the question I have applied my mind to answer.
The Iniquity Issue
"… criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege."
Dubai Aluminium v Al-Alawi  1 WLR 1964, 1969F (Rix J). There, the allegation was that the defendants had instructed inquiry agents to engage in conduct that involved a criminal offence contrary to s 5(6) of the Data Protection Act 1984. See also Kuwait Airways  (Longmore LJ), approving Rix J's decision.
'Protection of personal data
Everyone has the right to the protection of personal data concerning him or her.
Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.'
The Inspection Issue