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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 >> Notting Hill Genesis v Ali  EWHC 1194 (QB) (13 May 2020)
Cite as:  EWHC 1194 (QB)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| Notting Hill Genesis
|- and -
The Defendant in person
Hearing dates: 22nd April 2020
Crown Copyright ©
Mr Justice Nicol :
The timing of the present hearing
The application to rely on information derived from the documents disclosed in the Employment Tribunal proceedings
The legal background
'(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.' - see CPR r.31.22(1).
The factual background
The parties' submissions
i) The Claimant has good reason to wish to prevent misuse of its information. It has obligations as the data controller to take steps to protect the security of its data. Some of the information is highly sensitive such as contacts between its tenants and the police, including on occasions criminal convictions. It also includes health data.
ii) The scale of the documentation which the Defendant has in his possession or under his control remains unclear. In his earlier correspondence he said that he had 'thousands of documents'. In his defence to the present claim he said that was a flippant remark not meant to be taken seriously (see paragraph 14 of the Defence), but there was nothing in the original email in which this remark had been made to indicate that was the case. In any event the Defendant has also referred to another document (an email of 24th October 2018) which he apparently retains or of which he has control.
iii) The Defendant ceased to be employed by the Claimant many months ago. He has no continuing need to possess the documents.
iv) The documents in question are the property of the Claimant. In those circumstances, the limitations on the use of disclosed documents either do not apply (see Process Development Ltd v Hogg  FSR 45 CA) or carry less weight.
v) The reason why permission of the court was not sought in advance was not deliberate or reckless. IG Index represented an extension of the law as it had previously been understood.
vi) The principal reason why Soole J. had not made an order in the Claimant's favour on 27th January 2020 was because the Defendant had had no notice that this issue was to be considered. For the present hearing, he has had notice and has been present and been able to make his submissions.
vii) The Claimant denies that it deliberately sought to exclude the Defendant from the hearing on 27th January 2020 or failed to take steps which it reasonably should have taken to give him notice of that hearing. It would have been of no advantage for it to have done so. Any order made without notice to the Defendant would have been subject to an early hearing of which he would have been given given notice and at which any order previously made would have been reviewed afresh and the Defendant would have been provided with a full note of the without notice hearing.
i) The omission to seek permission in advance had been deliberate and reckless. The restriction on the use of disclosed documents was well known. Ms Sally Christopher, one of the Claimant's solicitors, had alluded to it in her email to him of 1st August 2019 when she had said, 'the general rule is that documents provided in the course of the Tribunal proceedings should not be used for any other purpose.'
ii) The Claimant had not taken all the steps it should have done to give him notice of the hearing on 27th January 2020. He had not been able to provide a postal address because he intended to leave the U.K. and had only temporary places to stay. The Claimant had had a telephone number for him, but had not called him until after the hearing.
iii) The present action was 'misguided and misconceived' and its purpose was to distract him from preparing for the hearing of his Employment tribunal claims. As the Claimant was also aware, he had to deal with the consequences of his father's recent death.
iv) The Claimant had also delayed issuing the present proceedings until January 2020 although it had known about his possession of certain documents from his employment since April 2018.
v) It was 'ludicrous' to suggest that the Claimant was motivated by a desire to protect its tenants' privacy, when the information which the Claimant alleged was confidential showed that the Claimant had been 'stealing' from the tenants.
vi) None of what the Defendant had done had been for his own self-interest: he was concerned that the Claimant appeared to be claiming rents to which it was not entitled.
vii) Although Mr Ali is not a lawyer and was representing himself, he asked me to consider the impact of ECU Group plc v HSBC Bank plc  EWHC 3045 (Comm) and Grosvenor Chemicals Ltd v UPL Europe  EWHC 1893 (Ch). Among other things the Claimant had used information which Mr Ali regarded as without prejudice and privileged.
Use of disclosed documents application: discussion
i) The purpose of the present proceedings is to protect the confidentiality in the Claimant's own documents and to assert a duty of confidence which the Defendant owes to the Claimant. If permission was refused, the Defendant would, in effect, be uninhibited in his use of that information. In theory the individual tenants might have a right to protect information relating to them and in which they would have a reasonable expectation of privacy, but in practice enforcement of such a right would be haphazard, not to say, unlikely.
ii) The Claimant also owes public duties under the GDPR to protect the security of its data. That is particularly the case for data of special sensitivity such as health information and contact with the police.
iii) It is not entirely clear what documents the Defendant still has. As part of the disclosure exercise in the Employment Tribunal he produced about 100 documents. On 24th July 2019 he also wrote to the Claimant's solicitors to say that 'he had spent hours sifting through more than a thousand emails'. Although the Defendant has now said that was a flippant remark, not to be taken seriously, I agree with Ms Addy that it was not apparent from the email that it was anything other than a serious remark. Although the Defence says that the Defendant does not have any further documents of the Claimant, the reassurance that would otherwise provide is undermined by the reference by the Defendant to another document of the Claimant's. In all these circumstances, there is a strong case for the Defendant to state in a formal manner what documents of the Claimant's he now has and the circumstances in which he ceased to have those which are no longer in his control. But if permission is refused, it seems that the Claimant will at least be seriously hampered in that endeavour.
iv) It is relevant that the documents with which the claim is concerned are the property of the Claimant (or, see below, copies of them). In Process Development Ltd v Hogg  FSR 45 CA Blackburne J. had granted an Anton Piller order (what is now called a 'civil search order'). The Plaintiff (as the Claimant was then called) sought permission to disclose to the police the fact that its property had been found in the Defendant's possession. Rattee J. granted permission and the Court of Appeal had to consider whether he was right to do so. Sir Thomas Bingham MR gave the leading judgment. As he observed at p. 52,'What is in issue here is not the Defendant's own personal property but goods and information relating to goods which he [the Defendant] has allegedly stolen from the Plaintiff. As it seems to me the ordinary rule applicable to discovery has no direct application to the situation which arises here.'It is right that Process Development Ltd v Hogg was considered by the Court of Appeal in IG Index (see -). Process Development was distinguished on the ground that the Defendant in IG Index did not have the originals of the Claimant's documents but only copies (Indeed, it seems that the Defendant had supplied copies to the Information Commissioner's Office ('ICO') who, in turn, had copied the documents electronically and then returned them to the Defendant). IG Index argued that this was too fine a distinction, but the Court of Appeal disagreed (see ).In the present case, it is not entirely clear whether what the Defendant retained were the originals of the Claimant's documents or copies. So far as they were originals, Process Development would apply and the Claimant would not need permission. If what the Defendant retained were copies, it might still be of significance that what the Defendant had are not shown to be copies of documents supplied back to him by the ICO. Yet even if the Defendant could overcome that hurdle, it is significant that the Court of Appeal was prepared in the circumstances of IG Index to grant retrospective permission. Of course, the exercise of discretion in an earlier case is in no way binding on me, but it is important that the Court of Appeal considered that Tugendhat J. had erred in his approach to the exercise of discretion by not adequately reflecting on the consequences of the refusal of permission. As I have already indicated, refusal of permission in this case would, in my judgment, have severe consequences for the Claimant's legitimate concerns.
v) None of the documents were written 'without prejudice'. There is no basis for the Defendant's assertion that any of them were privileged.
The interim injunction application