August EWJ 24 - Flipbook - Page 41
review by independent counsel (although a small
number had been shared directly by the PIs with the
Claimants' solicitors, who quarantined these on
discovering that fact).
The Court also held that there was no reason why the
Claimants’ Injunction Application, if still pursued,
could not be resurrected after compliance with the
confidentiality order. However, it is significant that the
Claimants had already agreed that they would no
longer rely on the Report and would not pursue asset
freezing relief against the individual defendants and
instead sought only proprietary relief restraining certain share and asset disposals from newly added corporate defendants. Leaving aside the risk of further
claims against the Claimants and the PIs, the way in
which events transpired in this case had a substantial
impact on the strategy which the Claimants were seeking to pursue through the Injunction Application as
against the Defendants.
Despite the extensive amounts of material thought to
have been forged, the privileged documents were said
to be genuine, as were some of the other documents
appended to the Report. As such, the Defendants believed the PIs had accessed their genuine confidential
information, including their email accounts, mostly
likely explained by hacking or phishing over a prolonged period. The judgment notes that it remained
unclear what other confidential material the PIs may
have obtained, with the Report stating investigations
began in 2020 and some documents having been obtained in 2021 and 2022.
FKJ
In FKJ v RVT, the Defendant had relied upon
personal WhatsApp messages obtained from the work
laptop of the Claimant (his former employee), and additionally through two alleged anonymous deliveries,
in successfully resisting the Claimant’s claims for sex
discrimination in the Employment Tribunal. Having
initially indicated she would seek to have the evidence
excluded in the Employment Tribunal claim, the
Claimant chose not to. Instead, the Claimant sought to
enforce her rights in a separate claim for misuse of private information in the High Court. By reference to
the decision not to seek the exclusion of the evidence,
the Court commented that “As has often been observed, English courts tend to admit relevant evidence
- even when improperly obtained or procured”.
It was further revealed in solicitors’ correspondence
the day before the restored hearing that a second firm
of PIs had been engaged and had carried out surveillance, as part of which they had covertly recorded a
meeting between of one of the Defendants, his daughter, his lawyer and two investigators (without the
knowledge or consent of their instructing solicitors).
A transcript of that meeting, which was highly likely
to attract privilege, was inadvertently shared with the
instructing solicitors (who confirmed that they deleted
it without opening it, realising what it was).
At the hearing, the Defendants sought and were
granted the further adjournment of the Injunction
Application. The Court found that there was no prejudice to the Claimants in adjourning the Injunction
Application until the position in respect of the Defendants’ confidential and privileged information had
been clarified (with the Claimants themselves recognising that such clarity was needed).
The Defendant, the head of the law firm at which the
Claimant had been employed, counterclaimed for malicious prosecution, harassment and abuse of process,
and sought reverse summary judgment on the counterclaims. The Defendant also pursued strike out of
the claim on the basis that it constituted a Jameel abuse
(a claim that would yield no tangible or legitimate benefit to the Claimant), a Henderson abuse (a claim she
could and should have brought as part of earlier proceedings) and an abuse of the restriction on collateral
use of documents disclosed in civil proceedings, under
CPR 31.22. These arguments were roundly rejected
by Master Davison who noted the previous judgment
of Master Fontaine who said that the Claimant’s claim
appeared to represent “a very serious breach of her
private information”. Master Davison also recognised
that the Claimant’s claim could yield an award of
many thousands of pounds.
As to the Confidentiality Applications, the Court was
willing to grant some of the relief sought to allow the
Defendants better transparency as to what had occurred. This was fairly said by the Defendants to bolster their opposition to the eventual Injunction
Application, including in relation to delay and "clean
hands". However, while the Court noted the seriousness of the Defendants’ allegations as to the acquisition of their confidential information, it also noted that
there was not yet a pleaded case particularising the
wrongs alleged by the Defendants, and that some of
the relief sought by the Defendants may be better directed against the PIs rather than against the
Claimants.
Even if evidence which is illegally obtained is admitted
in proceedings, that does not protect against subsequent claims related to the wrong.
As such, the Court considered that its present focus
should be on maintaining the integrity of the instant
proceedings (which concerned the Claimants’ claims
against the Defendants for fraud and misappropriation of assets).
Comment
These judgments do not suggest any displacement of
the general trend that improperly obtained evidence
will nonetheless be admissible in Court if relevant to
the issues in dispute. Both considered the case of
Imerman v Tchenhuiz and ors [2010] EWCA Civ 608
which provides authority for an injunction to be
granted to prevent a party from accessing and using
confidential information obtained wrongfully. However, it is a highly fact sensitive matter which requires
The Court emphasised at several points that the
Defendants should give thought to the best vehicle for
any other relief they might seek, and said that this was
“more than a matter of form or procedure”. The
Court left the door open for subsequent claims to be
made by the Defendants in relation to the matter.
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