Appeal - Application to set aside order for service out of the
jurisdiction.
[2018]JCA095
Court of Appeal
24 May 2018
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Before :
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James W. McNeill, Q.C., President
George Bompas, Q.C., and
Sir Wyn Williams
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Between
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Phillip Cowan Sinel (trading as Sinels)
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Plaintiff
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And
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(1) Moira Hennessy
(2) Damien James
(3) Adam Clarke
(4) Luc Jean Edourd Argand (as executor of the
estate of the late Killian Hennessy)
(5) Marie Emanuelle Michelle Argand (as executor
of the estate of the late Killian Hennessy)
(6) Sylvain Michael Bogensberger
(7) Amuary D’Everlange
(8) The Law Society of Jersey
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Defendants
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Advocate J. S. Dickinson for the Plaintiff.
Advocate M. L. Preston for the First
Defendant.
judgment
bompas ja
Introduction
1.
On 1 March
2017 the Plaintiff, Advocate Philip Sinel (trading as Sinels), issued an Order
of Justice claiming relief, described below, against the First Defendant, Moira
Hennessy, and others. The First
Defendant is resident outside the jurisdiction. On 15 March 2017 the Master of the Royal
Court, Advocate Matthew Thompson, gave the Plaintiff leave to serve the Order
of Justice out of the jurisdiction.
Later an order was made for substituted service on the First Defendant,
and this was, in due course, effected on the First Defendant in late July 2017.
2.
With the
leave of the Royal Court, the Plaintiff now appeals to the Court of Appeal
against the Act of Court made by the Royal Court (Sir William Bailhache,
Bailiff, with Jurats Sparrow and Christensen) on 12 January 2018 discharging
the Act of Court of 15 March 2017 and setting aside the service on the First
Defendant. At the heart of the
judgment (Sinels-v-Hennessy and Others [2018] JRC 007) given by the
Royal Court was the conclusion that the claim presented in the Order of Justice
was unarguable. Before us the
Plaintiff challenges this conclusion.
The Plaintiff also challenges the approach taken by the Royal Court,
when it refused to take into account a proposed Amended Order of Justice which
we describe below.
Background
3.
The
Plaintiff is an Advocate. In the
course of his work he gives legal advice to clients. In general, the Plaintiff owes a duty of
confidentiality to his clients. This
duty, which is reinforced by rules of professional conduct along with the
clients’ right to claim legal professional privilege, is fundamental. It is at the heart of a citizen’s
right to be able to take legal advice freely and to obtain representation
before the courts.
4.
The Order
of Justice sets out claims made by the Plaintiff in respect of certain
materials. One of the
Plaintiff’s clients, according to the Order of Justice, was and is a Mr
Gilles Hennessy. The materials in
question comprise the contents of a package sent in May 2015 to the First
Defendant by an anonymous person under cover of a Jersey postcard with, written
on it, the text “Again, I think you
deserve the truth”. The
Order of Justice states that these materials included documents (which we call
“the Documents”) which on their face plainly attracted legal
professional privilege by virtue of the lawyer/client relationship between the
Plaintiff and his client. The Order
of Justice contains averments to the effect that the Documents must have been
stolen or otherwise improperly obtained from the Plaintiff or his client, that
they could not have been intended for anyone to see other than the Plaintiff,
staff of his firm or his client, and that that must have been obvious to any of
the Defendants into whose hands the Documents came.
5.
The relief
claimed in the Order of Justice is injunctive only, to preserve
confidentiality. The Order of
Justice seeks to restrain, in summary, the giving of publicity to the Documents
and their contents (that is, the information set out in the Documents), the
delivery up or destruction of the Documents and of any copies and the giving of
assistance to the Plaintiff to enable him to see that confidentiality continues
to be maintained.
6.
It has
been said by the Plaintiff that he is enforcing the claims in the Order of
Justice with the approval of his client, Mr Gilles Hennessy. Although this statement is not made
expressly in the Order of Justice, it is a reasonable inference that, in a
matter which touches the affairs of his client, the Plaintiff is not acting
without the knowledge of his client; and it is also a reasonable inference from
what is pleaded that the client had not authorised the disclosure of the
Documents or their contents to any of the Defendants or more widely. But should there have been any doubt,
the Plaintiff had made an affidavit for the purposes of the First
Defendant’s application in which he said, Mr Gilles Hennessy “is fully aware of these proceedings and
agrees with the steps I am taking in relation to” the Documents.
7.
Paragraphs
26 to 31 and 33 of the Order of Justice set out the following:
“26. The Privileged
Documents are self-evidently confidential in nature by virtue of the facts
that:
26.1 They arise in the context and as a result of a
relationship of lawyer and client;
26.2 The documents and the
information which they contain came into being in the context and as a result
of the provision of legal advice by Advocate Sinel to his client and/or in the
contemplation of litigation.
26.3 The information contained
within the documents is by its very nature confidential, pertaining as it does
to confidential affairs of the client and/or to matters in respect of which the
client has sought legal advice from Advocate SineI.
27. Further, by virtue of the foregoing
matters the Privileged Documents attract both legal advice and/or litigation
privilege.
28. Said privilege and the rights to which
it gives rise are the property of and/ or properly belong to Gilles Hennessy
and Advocate Sinel.
29. The obligation of confidence arising
out of the confidential and privileged nature of the relationship of lawyer and
client is an obligation owed by Advocate Sinel to Gilles Hennessy.
30. Advocate Sinel is, by reason of that
obligation of confidence and/or the privileged nature of the Privileged
Documents, duty bound both as a matter of law and of professional conduct, to
defend the privilege therein and to assert that privilege against all others
into whose hands the Privileged Documents should fall.
31. The confidential nature and
aforementioned privilege attaching to the Privileged Documents has been and
continues to be infringed by the retention of those documents and the
information contained therein by such of the Defendants as have retained the
same, and by the circulation or dissemination of those documents and the
information contained therein between such of the Defendants as have sent or received
the same.
….
33. The confidential and privileged nature
of the Privileged Documents is absolute and is entitled to the protection of
the Court by means of injunctive relief as described in the prayer for relief
below.”
8.
The
Documents, that is the contents of the package received by the First Defendant,
were described in a little more detail by the Plaintiff in his witness
statement of 13 October 2017 made in response to the First Defendant’s
application to discharge the Act of Court of 15 March 2017. In summary, according to this
description the Documents are themselves copies of documents, not
originals, generated in the course of the Plaintiff’s professional work
for Mr Gilles Hennessy and which will have passed from the Plaintiff to Mr
Gilles Hennessy. If this is
correct, the likelihood is that somehow the original confidential material was
copied by someone who appreciated that what was being done infringed the
confidentiality attaching to that material and was unauthorised and therefore
improper. The nature of the
impropriety we discuss below. But
the fact that the Documents are copies immediately raises a question as to the
subject and nature of any property rights which might be claimed by the
Plaintiff or Mr Gilles Hennessy in relation to the Documents. This point was taken by Advocate M
Preston, representing the First Defendant, in his address to the Royal Court on
the hearing of the First Defendant’s application.
9.
So far as
concerns this last point, the Order of Justice did not claim any right of
property in the Documents themselves on the basis that the Plaintiff (or, for
that matter, Mr Gilles Hennessy) owned the pieces of paper on which information
was printed. Rather, the claim was
based on confidentiality, or privilege, in relation that information, it being
the rights in relation to the information which were said to be property
rights.
10. It is relevant to describe two sets of
proceedings which had been started before the Order of Justice was issued. The first arose following the death of
the late Mr Killian Hennessy, Mr Gilles Hennessy’s father. He had died on 1 October 2010 in, and
domiciled in, Switzerland. His last
will dated from 2002. By this he
appointed Luc Argand and Marie Emanuele Argand as his Executors. They are the Fourth and Fifth Defendants
in the Plaintiff’s action.
The Sixth Defendant in the Plaintiff’s action is Sylvain
Bogensberger, the Executors’ special attorney.
11. Before his death Mr Killian Hennessy had
consulted the Plaintiff for legal advice.
The Plaintiff states that this was in anticipation of proceedings which
Mr Killian Hennessy believed were likely to be brought by the First Defendant
following his death. The First
Defendant is his daughter.
12. On 26 May 2016, according to the
Plaintiff’s Order of Justice, the Sixth Defendant as special attorney for
the Executors issued a Representation against the Plaintiff seeking certain
information and documents said to be held by the Plaintiff from his having
acted for Mr Killian Hennessy. In
the Representation it appears to be said against the Plaintiff that the
Plaintiff cannot rely, as against the Fourth to Sixth Defendants, on any duty
of confidentiality he might have owed to Mr Killian Hennessy, or on any claim
to legal professional privilege Mr Killian Hennessy might have had, as a basis
for refusing to give explanations or documents.
13. At some point after receiving the Documents the
First Defendant had passed them over to her advocate, Advocate James. He is the Second Defendant in the
Plaintiff’s action. Some 18
months later she instructed the Second Defendant to disclose the Documents to
the Third Defendant, Advocate Clarke.
He is the advocate for the Fourth to Sixth Defendants. After this, the second set of
proceedings started. At first the
Second Defendant sought assistance from the Law Society of Jersey, and then in
proceedings from the Royal Court sought directions as to the approach which
properly he ought to take in relation to the Documents, having regard to the
fact that, judging from their nature and content, they were or were likely to
be privileged and confidential.
14. According to the Plaintiff’s Order of
Justice, the Law Society of Jersey advised the Second Defendant, among other
things, that “the nature and
content of the documents received by our (sic) client means that they were not
intended for, or meant to be seen by, your client”, that “the nature of the receipt ... as an
anonymous package, indicates that the disclosure is not inadvertent, but
a deliberate act on the part of another person”, and “The
accompanying note, disguised handwriting and nature of the contents gives rise
to an indication of being improperly obtained by or through the sender
(who is not the client).”
It seems to us that the inferences so described may, for present
purposes (that is, for the question of service out of the jurisdiction), be
treated as capable of being held to be obvious: someone, knowing what had been received
by the First Defendant, and how it had been received, would have needed to have
been obtuse or to have been intentionally avoiding drawing the obvious
conclusions, if they did not draw the inferences described by the Law Society
of Jersey.
15. On 22 March 2017 the Royal Court (Sir William
Bailhache, Bailiff, with Jurats Grime and Pitman) gave a judgment on the Second
Defendant’s application to the Royal Court. In this judgment, James v Law Society
of Jersey and Others [2017] JRC 047B, the Royal Court refused to give the
Second Defendant permission to transmit the Documents to the Third Defendant,
notwithstanding the instructions given to him. The Royal Court explained:
“The furthest we feel we
should go in the present proceedings is to indicate that it is on the face of
it difficult to identify a valid reason why [the First Defendant] should have
been sent documents which do not belong to her; on the face of it they must
have been obtained improperly, and it would be unsurprising if a court were to
determine that in those circumstances they ought not to be used.”
16. We have explained above the relief claimed in
the Plaintiff’s Order of Justice in the present case.
17. The basis of the First Defendant’s
successful application to have the 15 March 2017 Act of Court discharged was
that the only person entitled to obtain the relief claimed in the
Plaintiff’s Order of Justice is Mr Gilles Hennessy, who is not a party,
and not the Plaintiff. It matters
not, so the First Defendant argued successfully, that Mr Gilles Hennessy had
given his consent to the Plaintiff’s bringing of his proceedings and
supported the proceedings.
18. It will be appreciated from what we have said
already that the legal basis for the Plaintiff’s claims for the relief
sought in the Order of Justice were (a) that the Plaintiff had a right of
property in respect of the Documents, and alternatively (b) that the Documents
contained confidential information brought into being in the relationship of
confidence between him and Mr Gilles Hennessy, and that the Plaintiff was
entitled, and indeed obliged, as a result of that relationship to protect the
confidentiality attaching to the information where there was a real possibility
that it had been improperly passed on.
19. The proposed Amended Order of Justice which the
Plaintiff sought, unsuccessfully, to have the Royal Court take into account
when deciding the First Defendant’s application was only in a draft form,
still (as it was explained to the Royal Court) awaiting review at the time of the
hearing. When asked whether the Plaintiff was making an application to amend
the Order of Justice, Advocate J Dickinson (for the Plaintiff) answered as
follows: “... the plan had been to make an application to amend the Order
of Justice to the Master in the usual way, and what I will say is that it is,
that you are entitled, when you exercise your discretion in relation to this
application, to have regard to the fact that [the Plaintiff] is shortly
planning to amend his Order of Justice and to plead out in more detail the
various claims that have been made ... but there is not presently an
application before you to amend the Order of Justice”.
20. On 18 October 2017, the day after the hearing
of the application, what was said to be the final version of the draft Amended
Order of Justice was sent to the Royal Court under cover of an email saying
“It is plainly a matter for the
Court as to what account it takes of the” attached draft. The
attached draft was rather more elaborate than the draft which had been exhibited
to an affidavit sworn by the Plaintiff shortly before the hearing of the First
Defendant’s application: the
affidavit explained that “now all
the parties are before the Court I will shortly be taking steps to apply to
amend the Order of Justice”, the exhibited document being described
as “the current draft”.
21. On
4 December 2017, and therefore after the hearing of the First Defendant’s
application, an email was sent on behalf of the Plaintiff to the Court
explaining that the Order of Justice was to be amended in the form of the draft
Amended Order of Justice by way of a consent order. The consent order, however, shows that it
was made only with the consent of the Fourth, Fifth and Sixth Defendants, and
not with the consent of any other Defendant and in particular not with the
First Defendant’s consent: so far as she is concerned the Order of
Justice remains in its original form as served in July 2017. Indeed, as matters stand there is,
according to the draft consent order, a default judgment against the Seventh
Defendant, and as against the Second, Third and Eighth Defendants the
proceedings have been adjourned sine die but on terms allowing re-activation.
22. The Amended Order of Justice elaborates on the
allegations and claims previously put forward by the Plaintiff by adding, among
other matters, allegations of dishonesty against the First Defendant in
relation to the obtaining of the Documents, a claim that the Documents
themselves were property of the Plaintiff, a claim in trespass against the
First Defendant, a claim based on infringement of copyright and database
rights, claims founded on dishonest assistance in a breach of fiduciary duty
and on knowing receipt of trust property, and claims for breach of contract and
unlawful interference with contract.
Service out of the jurisdiction
23. It is accepted on behalf of both the Plaintiff
and the First Defendant that the test applicable for the giving of leave to
serve process out of the jurisdiction is that described in summary by this
Court in Maywal Ltd v Nautech Services Ltd [2014] JLR (2) 527 at
paragraph 23:
“On an application for leave
to serve out there are three hurdles for a plaintiff to surmount.
(1) First, the Royal Court needs to be satisfied
that there is a good arguable case that the claim meets the requirements of at
least one of the various permissible gateways set out in Rule 7 [of the Service
of Process Rules 1994].
(2) Second, the Royal Court needs to be satisfied
that on the merits of the claim there is a serious issue to be tried.
(3) Third, the Royal Court needs to be satisfied
that Jersey is the suitable forum for the trial of the claim.”
24. As was the case before the Royal Court, the
First Defendant accepts before us that the first and third of the three hurdles
have (and had before the Master) in principle been surmounted by the
Plaintiff. The issue before us lies
only with the second, the “serious
issue to be tried” test.
25. As to the first of the three hurdles, the
“gateways” relied upon by the Plaintiff were, so far as relevant,
those in paragraph (a) to (c) of Rule 7 of the Service of Process Rules 1994
dealing with the circumstances in which the Court has and should exercise
jurisdiction to serve out of the jurisdiction, namely (a) that relief was
sought against a person domiciled within the jurisdiction, (b) that an
injunction was sought ordering the Defendants (including the First Defendant)
to do or refrain from doing something within the jurisdiction, and (c) that the
claim was brought against a person duly served within the jurisdiction and the
First Defendant was a necessary or proper party thereto. And, as to the third, Jersey is
indisputably the suitable forum for the trial of the claim.
26. In the judgments of both the Court of Appeal
and the Royal Court in the Nautech-v-CSS Ltd, Dunning, Coleman, Inns,
Gollop, Maywal Ltd, Warpole and Murch [2014] JRC071 case there was
discussion about the standard which a plaintiff needs to satisfy in relation to
the second hurdle, that is the serious issue to be tried test. This standard is not that there is a
good arguable case (the standard applicable in relation to the first test), but
is a lesser standard. In the
present case the entitlement to serve out of the jurisdiction depends only upon
the existence of a claim which it is proper to argue at trial if the
proceedings continue. As to this,
the Court should not enter into a prolonged debate and consideration of the
merits of the Plaintiff’s claim.
This has particular resonance where the claim involves disputed factual
issues; where the facts are unlikely to be greatly in dispute and the issues
are essentially of law, the Court should be slow to decide that there is no
seriously arguable claim unless the claim is one which is liable to be struck
out as failing to set out any cause of action.
The grounds of appeal
27. The Plaintiff’s first ground of appeal
challenges the Royal Court’s judgment on the basis that the Royal Court
erred in deciding the First Defendant’s application on the Order of
Justice as it stood, not on the basis of the draft Amended Order of
Justice. The remaining grounds of
appeal are directed at the conclusions reached by the Royal Court concerning
the claims in the unamended Order of Justice. These are all directed to the contention
that the Plaintiff’s Order of Justice put forward claims which were
seriously arguable. On the one
hand, so it was contended, the Order of Justice made a proprietary claim to
ownership of the Documents; and on the other it was contended that there was a
seriously arguable claim on the part of the Plaintiff to have a right to have
the Court’s assistance in maintaining confidentiality for the Documents.
Discussion
28. We start with the unamended Order of Justice,
and the claims as there set out.
Was there a claim which was seriously arguable? In this context we consider first the
claim based in confidentiality, and then the proprietary claim. After that we refer briefly to the
Plaintiff’s first ground of appeal.
29. The Royal Court accepted that the Documents
were confidential, concluding that the confidentiality sprang from the duty
owed by the Plaintiff to Mr Gilles Hennessy to preserve for him confidentiality
for their relationship, and for work done by him and communications passing
between them in the course of that relationship. However, the Royal Court reasoned that
because the duty of confidentiality was owed to Mr Gilles Hennessy, not the
other way around, and because it was Mr Gilles Hennessy who could chose to
preserve or waive confidentiality while the Plaintiff would have to follow Mr
Hennessy’s instructions or decisions as to this, the Plaintiff himself
was not a proper claimant to assert the confidentiality against a third party
into hands any confidential material arising from the relationship might
fall.
30. As a matter of first impression, as it seems to
us, it would be surprising if someone owing fiduciary duties and possessed of
information confidential to the person to whom the duties are owed, should be
unable to restrain the use of that information when obtained improperly, quite
probably from the fiduciary but possibly in some manner which the fiduciary
cannot explain. In the present case
the fiduciary is an advocate providing legal services to clients and to that
end entrusted with confidential information. But equally the fiduciary might be, say,
a trustee entrusted by a beneficiary with confidential information about the
beneficiary’s circumstances to enable the trustee to exercise a power or
discretion in relation to the beneficiary.
And these instances do not take into account the case of information
held by the fiduciary for or relating to multiple clients or beneficiaries.
31. We note, in this regard, that in the judgment
on the Second Defendant’s Representation the Royal Court, at paragraph
48, said:
“[The Plaintiff] has quite understandably
taken out an Order of Justice seeking to restrain the use of the [Documents]
…. [The Plaintiff] might wish to consider whether he should not issue a
summons for an immediate injunction restraining the use of the documents…”
The comment and suggestion in these two
sentences show that at that time the Royal Court did not see it as self-evident
that the Plaintiff’s proceedings were fatally flawed without Mr Gilles
Hennessy being a party, the Plaintiff by himself having no claim.
32. However, in deciding the First
Defendant’s application in the present case, the Royal Court relied on
the decision of the English Court of Appeal in Fraser v Evans [1969] 1
QB 349. In that case Mr Fraser had
sought, unsuccessfully, to restrain publication of a report he had made under a
contract with the Greek Government imposing on him a duty never to reveal any
information about his work for them.
In concluding that Mr Fraser was not entitled to an injunction the Court
of Appeal held that he had no standing to assert a claim in
confidentiality: any claim rested
with the Greek Government to whom Mr Fraser owed his duty of
confidentiality. The Royal Court
quoted a passage from the judgment of Lord Denning MR at page 361. The relevant
paragraph is as follows:
“Second, Breach of
Confidence. Mr. Fraser says that the report was a confidential document and
that the publication of it should be restrained on the principles enunciated in
the cases from Albert (Prince) v. Strange (1849) 1Mac & G 25 to Argyll
(Duchess) v Argyll (Duke) [1967] Ch 302. Those cases show that the court will
in a proper case restrain the publication of confidential information. The
jurisdiction is based not so much on property or on contract as on the duty to
be of good faith. 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. Even if he comes by it innocently, nevertheless once he gets to know
that it was originally given in confidence, he can be restrained from breaking
that confidence. 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 the Greek Government. The contract says so in terms. But there
is nothing in the contract which expressly puts the Greek Government under any
obligation of confidence. Nor, so far as I can see, is there any implied
obligation. The Greek Government entered into no contract with Mr. Fraser to
keep it secret. We have seen affidavits - one of them as late as this morning -
which say that it was not the policy of the Greek Government to publish, or
allow the publication, of any documents prepared by Mr. Fraser or his firm, and
that they would, as matter of practice, keep them confidential. But that policy
still leaves them free, in point of law, to circulate the documents or their
contents to anyone whom they pleased. The information was obtained for them by
Mr. Fraser under a contract with them. They paid for it. They were the people
entitled to the information. They were the people to say aye or no whether it
should be communicated elsewhere, or be published generally. It follows that
they alone have any standing to complain if anyone obtains the information
surreptitiously or proposes to publish it, and they did not complain of the
publication now proposed. At any rate, they have not come to the court to
complain. On this short point it seems to me that Mr. Fraser himself cannot
proceed on breach of confidence so as in his own behalf to prevent "The
Sunday Times" publishing the article.”
33. The law of confidentiality is commonly accepted
as having its origin in equity; and an action to restrain, or to seek
compensation for, misuse of confidential information has frequently been
described as an “equitable action”. In its simplest form one person, in a
prior relationship of confidence with another who owes him a duty of
confidentiality, will be claiming against that other for misuse of confidential
information from the relationship; and the claimant may well then proceed also
against third parties who have obtained the confidential information from that
other. However, it is now clear
that a prior relationship of confidentiality with the claimant is not an
essential element in a claim.
34. The earliest of the cases to which we have been
referred, Prince Albert v Strange [1849] 1 Mac & G 25, is one in
which Prince Albert was found to be entitled to an injunction restraining
publication of copies of his private etchings, the circumstances in which the
copies had come to be available to the defendant being unknown except that at
some time someone must have had unauthorised access to the plates from which
the impressions were made; and in giving judgment Lord Cottenham LC commented
that “the possession of the defendant … must have originated in a
breach of trust, confidence or contract…”. Effectively the basis of the
claim was that the defendant’s conscience was affected by knowledge that
what he had was unauthorised, was private to Prince Albert, and was the product
of a breach of duty. However, in
that case it was not supposed by Lord Cottenham that the individual who
committed the breach of trust, confidence or contract had necessarily to be
someone in a direct relationship with the Prince, and hence someone owing him a
direct duty or being in a relationship of confidentiality with him, as Lord
Cottenham contemplated that that wrongdoer might have been an employee of a
third party (see at pages 44-45).
35. The reasoning underpinning the jurisdiction was
explained by Lord Denning MR in the Fraser case (at page 361B-C), “The
jurisdiction is based not so much on property or on contract as on the duty to
be of good faith”. It
is the good faith of the recipient of the information which is all important. If there were any doubt about the point,
in Campbell v MGN Ltd [2004] 2 AC 457 Lord Nicholls of Birkenhead said
that “this
cause of action has now firmly shaken off the limiting constraint of the need
for an initial confidential relationship”.
36. The recognition that a claim to enforce
confidentiality in respect of information does not require any pre-existing
relationship of confidence has no doubt been assisted by the Convention for the
Protection of Human Rights and Fundamental Freedoms as carried into domestic
law. The Article 8 privacy right
has brought about a developing body of law concerning the enforceability of an
expectation of privacy for material which falls improperly into the hands of a
third party. Although a claim for
misuse of private information, or invasion of privacy, is now a distinct cause
of action (a tort cause of action) from a claim based in confidentiality,
nevertheless the two claims are closely related.
37. Thus, although the Fraser case is still
regarded as good law, and although the passage quoted above from the judgment
of Lord Denning is still referred to, a gloss has been put on the proposition
for which the case is authority.
This appears from the judgment of Tugendhat J in Abbey v Gilligan
[2012] EWHC 3217 QB, [2013] E.M.L.R. 12.
In that case Tugendhat J dismissed the claims made against the defendant
for invasion of privacy and breach of confidentiality. At paragraph [40] Tugendhat J described
the proposition established by the Fraser case, namely that a claimant
seeking to establish a claim in breach of confidence must show that he is the
proper person to sue, he went on to comment at paragraph [41] that: “There are cases where a person may sue to
protect the rights of others.
Examples include where hospitals have sued to prevent publication of
patients’ records (Ashworth [Hospital Authority] v MGN Ltd [2002]
1 WLR 2033). But even in those
cases, it is obvious that the claimant cannot be awarded damages for wrongs
suffered by third parties”. (As we have noted already, the
Plaintiff’s Order of Justice in the present case does not advance a claim
for damages.)
38. In his judgment in the Abbey case
Tugendhat J had referred to the report of the Ashworth case in the House
of Lords. In its judgment in the
present case the Royal Court had discussed the Court of Appeal’s judgment
in the Ashworth case (reported at [2001] 1 WLR 525), a judgement upheld in the
House of Lords. We discuss this
case further below.
39. The Plaintiff’s grounds of appeal and
supporting written contentions before us take issue with the Royal
Court’s analysis of the judgment of the Court of Appeal in Ashworth
Hospital Authority v MGN Ltd, and also of that Court’s judgment in Imerman
v Tchenguiz [2010] EWCA Civ 908, [2011] Fam 116. These cases were relied upon by the
Plaintiff before the Royal Court as demonstrating that it was, at the least,
seriously arguable that the Plaintiff had by himself standing to claim in
respect of the Documents the injunctive relief sought against the First
Defendant.
40. We start with the Ashworth Hospital
Authority case. The
Plaintiff’s argument is that by parity of reasoning with that case, he
has standing to claim injunctive relief to protect the confidentiality
attaching to materials which he held in confidence, even if he himself owed a
duty of confidence to his client in respect of those materials. And he argues that he had a reasonable
expectation of privacy for the materials, something which the First Defendant
must have appreciated, so that consistently with what had been said by Lord
Neuberger MR in the Imerman case (discussed below) he should be entitled
have the Court afford him protection against the First Defendant.
41. The Ashworth Hospital Authority case involved unauthorised disclosure to a newspaper of hospital
records concerning a notorious individual, the so-called “Moors Murderer” Ian Brady. The hospital authority brought claims in
equity for breach of confidence against the newspaper and others, and in that
context sought Norwich Pharmacal disclosure orders aimed at revealing the
identity of the person who had leaked the records from the hospital
authority. The Court of Appeal
upheld the grant of the disclosure orders, despite the defendant’s
arguments that Brady had himself put into the public domain certain aspects of
what was in the records, and also that the hospital authority lacked standing.
42. In the course of his judgment Lord Phillips MR
(with whom May and Laws JJ agreed) dealt with the question whether the hospital
authority’s claims were well-founded, and concluded they were. The point had been taken that it was
only the individual, Brady, who had standing to claim in respect of his
records. But Lord Phillips
explained that the hospital authority also had an independent interest in
maintaining confidentiality, despite the fact that the records were personal to
the individual. He said that the
hospital authority had, as regards the records, its own “independent interest in
maintaining their confidentiality”. As to this, there was on the facts
evidence that the hospital authority could be harmed by publicity for
confidential records, and also that the records contained input from medical
staff; but it was also material that the leak was probably by a hospital
employee who owed a duty of confidentiality to the hospital authority.
43. At paragraphs 51 to 54 Lord Phillips explained:
“51 Focusing on the article
published in the “Daily Mirror”, Rougier J held that Ashworth had
no right to confidentiality in the information that it contained. His reasoning
was as follows:
‘On reading the article I am
unable to detect anything contained therein which strays outside the limits of
what might be termed Ian Brady's personal right to confidentiality. I am not
impressed by the argument that merely because the descriptions of the man come
from various sources within the hospital, that automatically creates a state of
confidentiality of which the hospital could take advantage, but I wish to make
it quite plain that that is a decision which I have reached upon the facts of
this case, and upon a reading of this article. I must not be taken to be
voicing any general proposition that data recorded about a patient in a fashion
such as this could not, in an appropriate case, attract the shield of
confidentiality in favour of the hospital.’
52 I am unable to accept this reasoning.
The extracts published consisted of observations of Brady by different members
of the staff at Ashworth that were recorded as part of his medical records. Though
they were personal to Brady, I consider that Ashworth had a clear independent
interest in retaining their confidentiality. The Department of Health
published, on 7 March 1996, Guidance on the Protection and Use of Patient
Information. This includes the following guidance under the heading, “Who
has a duty of confidence?”: “Everyone working for or with the NHS
who records, handles, stores, or otherwise comes across information has a
personal common law duty of confidence to patients and to his or her employer.”
(Emphasis added.)
53 This guidance accurately states
the position. Both Ashworth and its patients shared an interest in the
confidentiality of patient records.
54 I do not consider that the
publicity generated by Ian Brady himself in the period before the publication
of the “Daily Mirror” article had the effect of stripping the cloak
of confidentiality from the more detailed records about Brady on the PACIS
database. Ashworth was entitled to insist that those records remained confidential.”
44. However, earlier in his judgment Lord Phillips
had described the findings made by the judge concerning the adverse impact on
the hospital of disclosure of confidential records. And, Lord Phillips later gave a further
summary of his conclusions in paragraph 63 of his judgment, which can be found
quoted below.
45. In the House of Lords the Court of
Appeal’s judgment was affirmed.
So far as concerned the question whether the hospital authority had any
standing to pursue a claim in breach of confidence Lord Woolf CJ, with whom
Lords Slynn, Browne-Wilkinson, Nolan and Hobhouse agreed, said:
“32 I also accept the
conclusion of Lord Phillips of Worth Matravers MR in the Court of Appeal [2001]
1 WLR 515 , 527–528, paras 50–54 that, while Ian Brady's conduct in
putting similar information into the public domain could well mean that he
would not be in a position to complain about the publication, this did not
destroy the authority's independent interest in retaining the confidentiality
of the medical records contained in Ashworth's files. So the source who
abstracted the information from the database not only acted in breach of
confidence; he or she also acted in breach of contract.
33 The Master of the Rolls went on
to conclude, at p 529, para 63:
“The intermediary, knowing
that the information had been obtained in breach of confidence, passed it to
MGN, through Mr Jones. MGN, knowing that the information had been transferred
in breach of confidence, published extracts from it. In these circumstances,
claims for breach of confidence lie against MGN, the intermediary and the
source.”
34 On the facts of the present case
the Master of the Rolls is almost certainly correct in coming to this
conclusion. ...”
46. The proposition in paragraph 63 of the judgment
of Lord Phillips in the Court of Appeal, quoted above by Lord Woolf, is in our
judgment material. It supports the
conclusion that if a person copies papers in the possession of a lawyer which
concern a client of the lawyer, which are obviously confidential, and which
either are or must be so understood by the person copying them, that person
will have the copies and the information they contained subject to an
obligation of confidentiality which the lawyer, as well has the client, can
have an interest in enforcing by way of injunction.
47. Before the hearing of the Plaintiff’s
appeal we drew to the parties’ attention an Australian judgment, one in
the New South Wales Supreme Court, given by Campbell J (Mid-City Skin Cancer
& Laser Centre Pty Ltd v Zahedi-Anarak (2006) 67 NSWLR 569). That was another medical records
case. At paragraph [139] Campbell J
said:
“While [the] particular
obligation of confidentiality is one which is owed to the patient, the
proprietor of a medical practice has a clear interest in conducting the practice
in such a way that confidential information disclosed by patients in the course
of the practice remains confidential. It would be bad for business if a medical
practice was known as one which leaked patient details. As well, the proprietor
of the practice would owe an obligation of confidentiality to the patient
concerning confidential information the patient gave to professional and
clerical employees of the practice, and could perform that obligation only by
ensuring that the practice was operated in such a way that all people who came
across the information in the course of the practice were bound by a similar
obligation of confidence. For the
law to regard it as an ordinary incident of being engaged in the work of a
medical practice that the person so engaged has an obligation to the proprietor
of the practice to maintain this patient confidentiality is a proper way of
ensuring that this interest of the proprietor of the practice is protected, and
also provides a more effective way of ensuring that the obligation of an
individual medical practitioner to the patient is adhered to. United States v Grossman 843 F2n 78 (2nd
Cir 1988) at 86[5] held that a law firm had a right, as against an employee of
the law firm, to the confidentiality of information disclosed to members of the
firm by a client. The position with
a medical practice seems to me to be analogous.”
We think that the reasoning of Campbell J
is much the same as that of the Court of Appeal in the Ashworth Hospital
Authority case; and in both cases the reasoning points to the Plaintiff in
the present case having standing, that is to say a sufficient interest in being
able, to bring a claim based on breach of confidentiality against the First
Defendant for the injunctive relief sought in the Order of Justice.
48. The Royal Court, however, distinguished the Ashworth
Hospital Authority case from the present on the basis that “the plaintiff hospital could assert a
breach of duty against its employee who had supplied” the
information, the defendant newspaper being aware “of that duty of confidentiality”. We do not see that in fact as being a
sufficient distinction. In the
present case Plaintiff will have his own claim for breach of duty on the part
of an employee, being a breach of an express or implied contractual obligation
owed by the employee, if (as seems likely) the source of the leak was an
employee, and if the identity of the employee can be established. But we cannot see why that fact should be
critical. For this we refer to
judgment of the Court of Appeal in Imerman v Tchenguiz, at paragraph
[64] (which we have set out below), where attention was drawn by Lord Neuberger
MR to Lord Goff of Chievely’s example of the obviously confidential
document wafted by an electric fan out of a window, or dropped in a public
place, and picked up by a passer-by. What matters immediately is whether the
Plaintiff has standing to prevent the First Defendant from further
disseminating the Documents (that is copy documents and the information in
them) when, as we assume for present purposes, she must appreciate that what
she has is confidential in the hands of the Plaintiff and that it has in all
likelihood been obtained improperly from the Plaintiff in a way which is
inconsistent with the confidentiality in the Documents. Bearing in mind that the Plaintiff says,
not unreasonably, that dissemination of such information will be damaging to
him in his business, we consider that arguably he has a sufficient interest in
restraining the First Defendant.
49. The Imerman case was decided in the
context of a bitter matrimonial dispute.
The wife was contending that the husband was concealing assets. The wife’s brother shared an office
and computer system with the husband. The brother accessed without permission
the husband’s computer and copied a great volume of material. The husband sought injunctive relief to
restrain any use of the material and its delivery up; and the wife sought to be
allowed to use the material in the matrimonial proceedings. The Court of Appeal upheld the claimed
injunctions. In giving the
Court’s judgment Lord Neuberger MR traced out the origin and development
of the confidentiality cause of action.
At paragraphs [64] to [66] Lord Neuberger drew attention to two
points. First, he described how it has
become clear that the law of confidentiality has become detached from any
requirement for wrongdoing beyond the fact that the defendant has obviously
confidential information without the claimant’s consent; and, second, he
explained how information for which the claimant had an “expectation of privacy” could attract the protection
giving to confidential information.
What he said was:
“64 It was only some 20 years
ago that the law of confidence was authoritatively extended to apply to cases
where the defendant had come by the information without the consent of the
claimant. That extension, which had been discussed in academic articles, was
established in the speech of Lord Goff of Chieveley in Attorney General v
Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 . He said, at p 281, that
confidence could be invoked “where an obviously confidential document is
wafted by an electric fan out of a window … or … is dropped in a
public place, and is then picked up by a passer-by”.
65 The domestic law of confidence
was extended again by the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457
, effectively to incorporate the right to respect for private life in article 8
of the Convention, although its extension from the commercial sector to the
private sector had already been presaged by decisions such as Argyll v
Argyll [1967] Ch 302 and Hellewell
v Chief Constable of Derbyshire [1995] 1 WLR 804. In the latter case, Laws J
suggested at p 807 that the law recognised “a right of privacy, although
the name accorded to the cause of action would be breach of confidence”.
It goes a little further than nomenclature in that, in Wainwright v Home Office
[2004] 2 AC 406, the House of Lords held that there was no tort of invasion of
privacy, even now that the Human Rights Act 1998 is in force. None the less,
following its later decision in Campbell's case [2004] 2 AC 457 , there is now
a tort of misuse of private information: as Lord Phillips of Worth Matravers MR
put it in Douglas v Hello! Ltd (No 3) [2006] QB 125 , para 96, a claim based on
misuse of private information has been “shoehorned” into the law of
confidence.
66 As Lord Phillips MR's
observation suggests, there are dangers in conflating the developing law of
privacy under article 8 and the traditional law of confidence. However, the
touchstone suggested by Lord Nicholls of Birkenhead and Lord Hope of Craighead
in Campbell's case [2004] 2 AC 457 , paras 21, 85, namely whether the claimant
had a “reasonable expectation of privacy” in respect of the information
in issue, is, as it seems to us, a good test to apply when considering whether
a claim for confidence is well founded. (It chimes well with the test suggested
in classic commercial confidence cases by Megarry J in Coco v AN Clark
(Engineers) Ltd [1969] RPC 41 , 47, namely whether the information had the
“necessary quality of confidence” and had been “imparted in
circumstances importing an obligation of confidence”.)
50. Then, at paragraph 68 of the Court’s
judgment, Lord Neuberger MR added:
“68. If confidence applies to a defendant who
adventitiously, but without authorisation, obtains information in respect of
which he must have appreciated that the claimant had an expectation of privacy,
it must, a fortiori, extend to a defendant who intentionally, and without authorisation,
takes steps to obtain such information …”
51. The Royal Court considered it important in the Imerman
case that the subject matter of the husband’s successful application was
documents owned by him. The Royal
Court explained this at paragraph [23] of the judgment as follows:
“23. A key point to make at the outset of consideration
of this case is that it was the husband who took action, whether against the
defendants or against his spouse in the matrimonial proceedings. The documents in question were his
documents and he was the plaintiff seeking orders restricting their use. The whole basis of the case therefore is
quite dissimilar from one where, according to the facts asserted by the
Plaintiff in the order of justice, no claim was made to ownership of the
documents.”
52. Further, the Royal Court reasoned that in the
present case there was no expectation of privacy, and no stated case that there
was an expectation of privacy, on the part of the Plaintiff as regards the
Documents or the original materials from which they had been produced. This was explained as follows:
“25. Applying that test [(the test set out in paragraph
[68] in Lord Neuberger’s judgment in Imerman)] to the facts of this case
as pleaded, can it be said that the Plaintiff had an expectation of privacy in
the privileged documents? In our
view the answer to that question is that there is no claim setting out why he
should have such an expectation. If
the position is, as we conceive it to be, that the confidence is that of the
client and not the lawyer, it follows that the lawyer can have no expectation
of privacy because the client could tell any third party of the advice
received, and/or disclose any information or documents which have been obtained
from the lawyer other than in circumstances where there are some express
arrangements which establish the mutuality of such a confidence. In other words, Lord Neuberger is
proceeding in these paragraphs on the assumption that the person bringing the
claim is the person entitled to the confidence.”
53. Differing from the Royal Court, we do not see
that “ownership” of documents was material to, or formed any part
of the reasoning of, the Court of Appeal in the Imerman case. What had been extracted from the
husband’s computer was data, or information; and it is questionable (as
we explain below) whether such matter is properly to be considered as capable
of being “owned” in the way that a piece of paper, or a machine,
may be owned. What mattered was
that the data extracted from the computer had been copied and then printed; and
so copied in digital and paper form had come into the hands of the wife who
wished to be able to use it.
54. Before the Royal Court, as before us, Advocate
Preston placed reliance on the case of Nationwide Building Society v Various
Solicitors (No.2) [1998] All ER (D) 119, a case in which Blackburne J
applied the principle in the Fraser case to deny the claim of the
defendant solicitors to the return of materials inadvertently provided by them
to the plaintiff in the course of the proceedings, the materials being, so it
was claimed, the privileged and confidential materials of the defendants’
clients. It seems from the
report of the case that the solicitors were being sued as having been party to
mortgage fraud, the solicitors themselves having acted for the plaintiff in the
impugned transactions. Also, and
more importantly, in Blackburne J’s judgment there is no indication that
consideration was given to the principles discussed in the Ashworth
case, so far as relevant only the Fraser case being referred to by
him. In summary he explained:
“The long and the short of
the matter is … that the right of confidence (or, if you wish, the
privilege) is that of the former clients and it is therefore for them and for
them alone to take action to protect the confidentiality of the information in
question …”
As it seems to us, this view of the
position, with the concept of a “right” of confidence as a property
right belonging to one person only and being the correlative of the duty of
confidentiality owed to that person, may well no longer be apt as an exhaustive
statement of the position. In the Ashworth
Hospital Authority case, for example, Lord Woolf CJ had, at paragraph [32]
(quoted above), referred to the hospital authority as having “an
independent interest in retaining the confidentiality of the medical records
contained in Ashworth’s files.” And in the Abbey case, Tugendhat J
conveyed, in the paragraph of his judgment quoted above in paragraph 37, that
such an interest might support a claim for injunctive relief, while being
distinct from a right to sue for damages for breach of a duty of confidence.
55. In our judgment, therefore, it is by no means
certain that, were the facts of the Nationwide case again to come before
the courts of England and Wales, the arguments or the result would be the same.
56. As to the expectation of privacy, we consider
that in the present context this is a development of the law of
confidentiality, providing a justification and explanation for giving protection
to confidential information, while moving away from the requirement for the
person seeking protection to show that there has been a breach of duty, or that
a breach of duty is threatened, in relation to the information before that
person is entitled to the court’s assistance.
57. We also consider it well arguable that, where
confidential information is shared, most typically in the course of a
relationship of confidence, such as in the case of lawyers, doctors or
trustees, in which one party provides to another matters of a personal and
private nature to the provider, but which the recipient is duty-bound to the
provider to keep private, it is perfectly possible for the recipient to expect
that what has been provided will be kept private by his staff, unless and until
the provider chooses otherwise. From
the point of view of the recipient this is not strictly a matter within Article
8 of the Convention, as the confidential information is not personal to him;
and anyway Article 8 is concerned with natural persons, not legal persons, and
either or both of the provider and the recipient may be corporations.
58. However, the description in the previous
paragraph assumes also that the provision of information is entirely one way,
from client, patient or beneficiary to the lawyer, doctor or trustee. But in practice there are likely to be
two-way communications in the course of the relationship, along with notes made
of work done, treatment given or decisions taken.
59. In the present case we think that the Order of
Justice (in particular in the paragraphs we have quoted earlier in this
judgment) sets out sufficient to demonstrate that the Plaintiff was claiming
that the information which had come to the hands of the First Defendant, namely
the Documents and the information contained in them, was private to him, as to
Mr Gilles Hennessy, and also that he has his own interest in maintaining
privacy for them by reason of his duty to Mr Gilles Hennessy.
60. Our conclusion, therefore, is that
Plaintiff’s proceedings cannot be said to be fatally flawed, to the point
where the Plaintiff does not have any seriously arguable claim against the
First Defendant to have the injunctive relief sought. In our judgment, the Royal Court was
mistaken in deciding that the case of Fraser v Evans placed the
Plaintiff’s claim based in the law of confidentiality outside the area of
what is seriously arguable. We
think, in summary, that the analysis is, at least arguably, that the Plaintiff
was in control of information which had been generated in the course of his
relationship, a relationship of confidence, and which he was duty bound to keep
confidential, and that it is not critical that the other party to the
relationship, a party who could properly and lawfully choose to release the
Plaintiff from his duty and give publicity to the information but also who
could sue the Plaintiff if the information had been leaked from the
Plaintiff’s office, was not himself before the Court as a party to the
proceedings. Nor does it matter, in
our judgment that the Plaintiff cannot be said to “own” the information. It is the quality of the information as
confidential while in the control of the Plaintiff, and the interest of the
Plaintiff in preserving that confidentiality, which allows the Plaintiff to
take steps to protect the confidentiality.
61. This conclusion is sufficient to dispose of the
appeal. We therefore comment only
briefly on the two other grounds of appeal.
62. The one is that the Plaintiff’s
entitlement to the claimed injunctive relief could be rested in the law of
property, the Plaintiff owning either the pieces of paper which arrived in
package received by the First Defendant, or the information which those papers
contained. The claim to ownership
of the information is plainly set out in the Order of Justice. We have quoted above paragraph 28 of the
Order of Justice which makes this clear.
The claim to ownership of the papers themselves is not so easy to discern,
but anyway seems implausible as it is contradicted by what the Plaintiff has
said in evidence.
63. Without reaching any conclusion on the
question, it being unnecessary for us to do so, the Plaintiff’s claim to
ownership of the Documents and the information in them faces difficulties. There is a line of English authority
denying that “information” is property which may be
“owned”, although legislation has provided for specific rights of a
proprietary nature in relation to various categories of information. One such case is Coogan v News Group
Newspapers Ltd [2012] EWCA Civ 48, [2012] E.M.L.R. 14. Another is Capita plc v Darch
[2017] EWHC 1248 Ch; and there are the cases cited at paragraphs [68], [69],
[71] and [72] of the judgment in Darch.
64. We need say no more about the claim based on
ownership of the pieces of paper, other than to comment that it would not be a
satisfactory outcome if the Plaintiff were only entitled to the Court’s
assistance in restraining dissemination of the Documents and the information in
them, if he could prove on the balance of probabilities that the pieces of
paper arriving in the package themselves were his pieces of paper.
65. The final ground of appeal concerns the Royal
Court’s approach in deciding the First Defendant’s application on
the basis of the Order of Justice as it stood at the time of the hearing, and
not on the basis of the Amended Order of Justice. This ground of appeal involves an attack
on what was, at the hearing of the application, presented to the Royal Court as
a matter for its discretion, and was not pressed on the Royal Court, either
then or in the emails sent after the hearing, as being the only appropriate
course for the Royal Court to take.
66. In the Royal Court’s judgment the
reasoning of the Royal Court was explained as follows:
“18. Finally, it was
submitted that although the order of justice was not asserted to be a perfect
document, it was plain that it did contain a right of action. Advocate Dickinson accepted that it was
not completely right and he was seeking to review it against the possibility of
an application for leave to amend.
19. We take the last
point first. Advocate Preston
rightly contended that he was entitled to a decision on his present
application, which was based on the order of justice as now pleaded. If a draft amended order of justice as
presented to us was not the finished article, which it was clear it was not,
then we should pay no attention to it.
He was not in a position to say whether there would be a jurisdictional
challenge if the Plaintiff was given leave to amend that particular
document.
20. We agree with
those submissions. We can only
decide the present application on the basis of the order of justice as it stood
at the date of the hearing, and if it is subsequently amended, it will be for
the Plaintiff to justify an application for leave to serve out of the
jurisdiction on the amended basis.”
67. In our judgment, there is no basis on which
this Court can properly interfere with the Royal Court’s decision set out
in the last paragraph we have just quoted.
The Royal Court had a discretion, and exercised it in a principled
way. When the application was heard
the document put forward as the proposed Amended Order of Justice was not put
forward as the finished article.
The Royal Court was entitled to decide whether or not the Master’s
order giving leave to serve out of the jurisdiction was wrongly made by
reference to the materials which had been before the Master when he made the
order, and not by reference to subsequent materials which sought to support his
decision on the basis of different claims which might be made in an as yet
unperfected proposed Amended Order of Justice.
Disposition
68. Nevertheless, for the reasons we have
explained, we would allow the Plaintiff’s appeal and, reversing the
judgment of the Royal Court, order that the First Defendant’s application
be dismissed.
Authorities
Sinels-v-Hennessy
and Others [2018] JRC 007.
James
v Law Society of Jersey and Others [2017] JRC 047B.
Maywal
Ltd v Nautech Services Ltd [2014] JLR (2) 527
Nautech-v-CSS
Ltd, Dunning, Coleman, Inns, Gollop, Maywal Ltd, Warpole and Murch [2014]
JRC071
Fraser v Evans [1969] 1 QB 349
Prince Albert v
Strange [1849] 1 Mac & G 25
Campbell v MGN Ltd
[2004] 2 AC 457
Abbey v Gilligan [2012] EWHC 3217 QB,
[2013] E.M.L.R. 12
Ashworth [Hospital
Authority] v MGN Ltd [2002] 1 WLR 2033
Imerman v
Tchenguiz [2010] EWCA Civ 908, [2011] Fam 116.
Mid-City Skin Cancer & Laser
Centre Pty Ltd v Zahedi-Anarak (2006) 67 NSWLR 569
Nationwide Building Society v Various
Solicitors (No.2) [1998] All ER (D) 119
Coogan v News Group Newspapers Ltd
[2012] EWCA Civ 48, [2012] E.M.L.R. 14
Capita plc v Darch
[2017] EWHC 1248 Ch