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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Phones 4U Ltd v EE Ltd & Ors [2021] EWCA Civ 116 (02 February 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/116.html Cite as: [2021] ICR 1279, [2021] WLR 3270, [2021] EWCA Civ 116, [2022] 1 All ER 239, [2021] WLR(D) 75, [2022] 1 All ER (Comm) 220, [2021] 1 WLR 3270 |
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CIVIL
DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMPETITION LIST (ChD)
THE HONOURABLE MR JUSTICE ROTH
Strand London WC2A 2LL |
||
B e f o r e :
LADY JUSTICE ASPLIN
and
LORD JUSTICE GREEN
____________________
PHONES 4U LIMITED (IN ADMINISTRATION) |
Claimant/Respondent |
|
-and- |
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(1) EE LIMITED (2) DEUTSCHE TELEKOM AG (3) ORANGE SA (4) VODAFONE LIMITED (5) VODAFONE GROUP PUBLIC LIMITED COMPANY (6) ELEFONICA UK LIMITED (7) TELEFÓNICA, S.A. (8) TELEFONICA O2 HOLDINGS LIMITED |
Defendants/Appellants |
____________________
Mr David Scannell QC (instructed by Norton Rose Fulbright LLP) appeared for Orange SA ("Orange")
Mr Rob Williams QC (instructed by Hogan Lovells
International LLP) appeared for Vodafone Ltd and Vodafone Group plc ("Vodafone")
Mr Mark Hoskins QC and Ms Sarah Abram (instructed by Mishcon de Reya LLP) appeared for Telefonica UK Limited, Telefonica SA, and Telefonica O2 Holdings Ltd ("Telefonica")
Mr Kenneth MacLean QC, Mr Owain Draper and Ms Stephanie Wood (instructed by Quinn Emanuel Urquhart & Sullivan UK LLP) appeared for Phones 4U Limited (in administration) ("Phones 4U")
Hearing dates: 19-20 January 2021
____________________
Crown Copyright ©
Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10.00 a.m. on Tuesday 2nd February 2021.
Sir Geoffrey Vos, Master of the Rolls, delivering the judgment of the Court:
Introduction
i) Whether the judge had jurisdiction to order a party to request third-party Custodians voluntarily to produce personal devices and emails stored on them (the "jurisdiction issue").
ii) Whether the judge was justified in including a rider in [62] of his judgment, but not in his order, that the defendants ought not, in making the request, to tell the Custodians that they were entitled to refuse it (the "rider issue").
iii) Whether the mechanism directed by the judge involving the IT consultants was appropriate and proportionate (the "proportionality issue").
There is also an additional argument raised by Vodafone about the General Data Protection Regulation ("GDPR").[5]
The judge's judgment
The relevant Rules
The jurisdiction issue: Did the judge have jurisdiction to order a party to request the Custodians voluntarily to produce personal devices and emails stored on them?
i) Whilst an employer has a right to production of documents from an employee relating to its business, it has no right to demand personal documents.
ii) It followed that the court did not have jurisdiction to order a defendant to disclose documents under control of employees relating to their personal affairs.
iii) The court does not have jurisdiction to require a party to seek to obtain documents from a third party which are not within the control of the party to the action, which includes requiring the party to request voluntary access.[8]
The rider issue: Was the judge justified in including a rider in [62] of his judgment, but not in his order, that the defendants ought not, in making the request, to tell the Custodians that they were entitled to refuse it?
The proportionality issue: Was the mechanism directed by the judge involving the IT consultants appropriate and proportionate?
The involvement of a third party
The involvement of IT Consultants
The voluntary nature of the order
Protection for the privacy rights of the Custodians, their family, friends and contacts
The data protection argument
Conclusions
Note 1 It is common ground that this is a competition claim which falls outside the Disclosure Pilot for the Business and Property Courts in PD 51U (see the specific exclusion at paragraph 1.4(1)). [Back] Note 2 In the context of making at paragraph 2 an order for standard disclosure.
[Back] Note 3 Following the UK’s departure from the EU, and the end of the transition period on 31 December 2020, the article 101 prohibition on anti-competitive agreements no longer applies in the UK. Nonetheless, section 2 of the Competition Act 1998 and the other Chapter 1 and Chapter 2 prohibitions continue to apply.
[Back] Note 4 See Fairstar Heavy Transport NV v. Adkins [2013] Note 5 Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. [Back] Note 6 Which provides at [1.5] and [1.6] that “the court may only permit disclosure … that is proportionate”, and that in order to determine proportionality “the court must in particular consider the factors set out in article 5(3) of the Damages Directive”.
[Back] Note 7 Which provide that “national courts are able to order the disclosure of specified items of evidence or relevant categories of evidence circumscribed as precisely and as narrowly as possible on the basis of reasonable available facts in the reasoned justification”, and “Member States shall ensure that national courts limit the disclosure of evidence to that which is proportionate. In determining whether any disclosure requested by a party is proportionate, national courts shall consider the legitimate interests of all parties and third parties concerned”. [Back] Note 8 See Lord Diplock inLonrho v. Shell supra. [Back] Note 9 See Jacob LJ at [50]-[52] in Nichia Corporation v. Argos Limited [2007] Note 10 For the stated time period. [Back] Note 11 See Compagnie Noga D’Importation et d’Expotation SA v. Abacha (No3) [2003] 1 WLR 307 to the effect that an appeal lies against the result of a hearing rather than the reasons for the result. [Back] Note 12 See PD 31C and article 5(3) of the Damages Directive.
[Back] Note 13 See section 6(3)(a).
[Back] Note 14 See the decision of the European Court of Human Rights in Affaire Vinci Construction et GTM Génie Note 15 Nor can the court always be forced to engage in complex processes when simple economical ones are likely to produce the same result.
[Back] Note 16 See, for example, Walbrook Trustee (Jersey) v. Fattal [2008] Note 17 See also section 8(a) of the Data Protection Act 2018, which provides that in article 6(1) of the GDPR “the reference in point (e) to processing of personal data that is necessary for the performance of a task carried out in the public interest or in the exercise of the controller’s official authority includes processing of personal data that is necessary for — (a) the administration of justice…”. [Back]EWCA
Civ
886 at [56] per Mummery LJ, where the Court of Appeal held that a litigating corporation was entitled to an order requiring its former CEO to give access to work-related emails on his personal computer.
[Back]
EWCA
Civ
741. [Back]
Civil
et Services v. France (63629/10 and 60567/10, 2 April 2015) at [76]-[81]. [Back]
EWCA
Civ 427 per Lawrence Collins LJ at [33]. [Back]