England and Wales High Court (Chancery Division) Decisions

IN THE HIGH COURT CHANCERY DIVISION

		Royal Courts of Justice The Rolls Building 7 Rolls Buildings Fetter Lane London EC4A 1NL
		30th August 2017

Reporting Restrictions Applied: No

Mr Justice Norris:

1. Scentrics Information Security Technologies Ltd ("Scentrics") is a company which specialises in IT security and encryption. It is developing encryption technology which seeks to render secure any messages exchanged using other apps by preventing third parties from accessing any of the then current conversations.
2. Scentrics engaged Marlena Adam as a software engineer to develop this technology, in particular in relation to its application for an Asian client. "Engagement" (and I use the neutral term) began in June 2016 but it came to a rapid end. Miss Adam says, and for present purposes, it is not in dispute, that she worked hard on developing the application and fulfilling her brief, working extensive hours and applying her not inconsiderable skills to producing a result for Scentrics. She says, though it remains to be determined on another occasion, that she did so on the faith of promises that she would be moved from the status of contractor to a permanent employee and perhaps even have a stake in the business if the Asian project had a successful outcome. As part of what Miss Adam describes as the promises that were made to her (but certainly part of her expectations) she anticipated going on a trip to Thailand: but, immediately before the trip was due to take place, she was told that she was not going.
3. This caused an immediate rift between herself and the management at Scentrics. Miss Adam is undoubtedly a dedicated software engineer but she herself recognises that she is placed somewhere on the autistic disorder spectrum. By reason of that, her response to the situation in which she found herself perhaps caused her to say things or express herself in terms that caused apprehension on the part of the management at Scentrics that she would express her dissatisfaction with the disappointment of her expectations by circulating the confidential information with which she had been provided in order to enable her to complete her tasks, and would circulate the developments which she says she had undertaken and the copyright and intellectual property in which Scentrics says it owns.
4. It should be said that Miss Adam does not accept that the material with which she was provided is properly described as "confidential information" and she says that, having regard to the way it was dealt with during the time she was engaged as a contractor, it cannot be regarded in any sense as "secure data". That remains an issue for the action, if and when it comes to trial. Miss Adam also says that, no matter the terms in which she may have expressed herself, she never intended to circulate confidential information or in any way damage the commercial interests of Scentrics. That again remains an issue to be determined in the main action.
5. Nonetheless, out of the circumstances which I have described, Scentrics applied for and obtained a "without notice" injunction restraining Miss Adam from dealing with the confidential information. The return date for that injunction was the 5^th August 2016 when the matter came before Mrs Justice Rose. Miss Adam had conducted her work on her own hardware. There were two laptops, a backup disc and a USB key.
6. On the 5^th August, Mrs Justice Rose made an injunction forbidding Miss Adam from disclosing or in any way copying, destroying or otherwise dealing with the "confidential information" (an expression defined in the order). Without opposition from Miss Adam, Mrs Justice Rose also ordered that Miss Adam should hand over to Scentrics' solicitors, then Clifford Chance, immediately after the hearing, two laptops, an external backup drive and a USB stick and directed Miss Adam, again without objection from her, to tell a named individual at Clifford Chance the passwords for each of the devices.
7. Clifford Chance undertook to the Court not to disclose those passwords without further order of the Court, to anyone other than David Martinez. David Martinez was an employee at Scentrics, whom Miss Adam trusted. Once the password was handed over, the order provides:

"The applicant and/or Clifford Chance LLP and a third party IT specialist as necessary will then examine the equipment and identify and upload the material which they need to upload and will then delete the confidential information from the equipment and return the equipment to the Respondent as soon as reasonably practicable. They will not delete backups on the external backup drive dating from before the 1^st June 2016."

8. The order specifically refers to the equipment being returned as soon as reasonably practicable. Miss Adam says that, in the course of the hearing before Mrs Justice Rose, she suggested that the appropriate period would be three days but the order itself is not so time limited. It provides that the equipment is to be returned:

"As soon as reasonably practicable."

9. This is now an application made under paragraph 6 of the order whereby Miss Adam seeks, in effect, an order for the immediate return of the two laptops and the hard drive. She is untroubled by the return of the USB stick. The basis on which the application is made is that a reasonable period has elapsed since the order of the 5^th August which would enable Scentrics, if competently conducting its litigation, to have undertaken the tasks that it was permitted to undertake, namely the examination of the equipment, the identification and uploading of any necessary material and the deletion of the confidential information so that her computers could have been returned to her.
   
10. A significant period has elapsed since the order of the 5^th August. Short notice of this present application was given to Scentrics and only relatively recently have they been provided with the material on which the application is based. The material itself canvasses many issues which will have to be determined in the main action but which are not material to a consideration of the precise question that falls for determination at this hearing.
    
11. At present Scentrics has the benefit of a Court order which entitles it to retain possession of the equipment for the specified purposes. Scentrics, if afforded sufficient time to respond to this application, would have wished to place before the Court the circumstances relating to the handing over of the equipment, a proposal by Scentrics to purchase the equipment from Miss Adam and to provide her with new computers, (a proposal that eventually came to nothing on about the 11th August 2016) and difficulties which they have encountered in engaging a third party IT specialist given the pressures of the holiday season.
12. As matters stand, these matters have been addressed in outline by Mr Hill of counsel on instructions. Miss Adam, partly by reason of her condition, is highly stressed at being deprived of access to her computers, on which she is dependent and which, at least in part, have been configured to suit her particular requirements. She has been so stressed at the absence of access to her computers that she has bought a replacement computer at the cost, as I understand it, of something over £1,764 placing her in debit at her bank.
13. Her present application however I think has four, principal grounds.
14. The first is that the computers contain work which she had undertaken for other contractors, in particular a client called Alemba, to which she no longer has access and which may prejudice her ability to work further with that client. On examination, it appears that there may be an alternative means of accessing that data and, in any event, it appears that the project on which Miss Adam was engaged, has itself changed in scope so that the work she has undertaken may no longer be material. Nonetheless, she says that she does require access to this work.
15. Secondly, because she is no longer engaged by Scentrics, she must search for other employment. The nature of the work in which she is engaged is that she will not be a routine employee but is likely to be engaged to undertake specific projects. At interview for such positions, it is customary for the interviewee to be able to demonstrate, on their own laptop, work which has previously been undertaken.
16. Thirdly, Miss Adam is concerned that she needs to access her computer in order to evidence the allegations she wishes to make in relation to the proceedings which Scentrics have commenced against her. In particular, to prove that she has not, as Scentrics say she either did or threatened to do, provided any confidential information to anybody in any circumstances.
17. There is a fourth concern, which is hinted at in the background material but was forcibly articulated at the hearing and that is that Miss Adam is concerned that, having provided a password for named individuals, for those persons whom she trusts to be able to access the computer, she is distressed that there has been opportunity to access intensely private material, including material relating to her disability, on the computer hard drives. She accordingly asked me today to say that sufficient time has elapsed and, if Scentrics have not taken advantage of the opportunity they have had, then that is their fault and the computer must be returned.
18. For Scentrics, Mr Hill submits that it is not the fault of Scentrics that it has been difficult to identify a suitably qualified independent IT specialist to conduct imaging of the computer hard drives and the external hard drive and to undertake the process of deletion even with the assistance which Miss Adam has provided in identifying the likely file prefixes which are likely to lead to files requiring deletion. Mr Hill submits that it is in this context highly desirable that an image of the computer hard drives should be taken to provide an independent record of all of the relevant data which;

a) cannot hereafter be the subject of a challenge in the event that the action proceeds and

b) will also to ensure that there is a source from which there can be restored to Miss Adam's computers anything that has been wrongly deleted.

19. I agree that imaging by an independent IT specialist, as envisaged by the 5^th August, an order is highly desirable. I accordingly intend to permit Scentrics to retain possession of the computers for a strictly limited further period to enable that to be done. But proper regard must be had to the interests of Miss Adam. The order I propose to make is to continue the order made by Mrs Justice Rose but with the following variations.
20. First, the IT experts are to mirror and delete information on the backup hard drive first. They are to do so using their best endeavours and, upon completion of the work on the external hard drive, are to return it forthwith to Miss Adam.
21. Second, they are to provide a narrative report of all dealings with the external hard drive.
22. Third, if the external hard drive has not been returned to Miss Adam by 4pm on the 2^nd September 2016, then Scentrics shall procure that Miss Adam is permitted supervised access to the external hard drive for the purpose of downloading from it material relating to her development work on projects for other clients prior to the 1^st June 2016 and all such material as she may reasonably require for the purpose of substantiating a CV in connection with an application for further employment.
23. Fourthly, all equipment, whether imaged, uploaded, deleted or not, must be returned to Miss Adam by 4pm on the 9^th September.
24. Fifthly, this order itself is conditional upon payment to Miss Adam of the sum of £2,000 by 4pm on the 2^nd September 2016 on account of any compensation that the Court may see fit to order under the existing cross undertaking in damages or in respect of any counterclaim or in respect of any order for costs in favour of Miss Adam, such sum to be returnable by Miss Adam in the event that there is no such monetary award in her favour.
25. The reason for this last condition is that, because of the negotiations, (ultimately fruitless), for the sale of the computer equipment to Scentrics, and because of the delayed start of the search for an IT specialist and because of the difficulties caused by the holiday period once that search has started, Scentrics has, I think, been in possession of the computers for far longer than was envisaged when the order of the 5^th August was made. Miss Adam's decision to purchase a replacement computer was a not unreasonable step for her to take in those circumstances. In the event that Scentrics' claim fails or Miss Adam's counterclaim in some part succeeds, she would I think be likely to recoup that cost but she is hardly able to bear it in the circumstances in which she finds herself whereas, it seems to me, Scentrics is well able to bear it.
26. In these circumstances, I will make the order indicated.

This Transcript has been approved by the Judge.

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