England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/02/2012

Mr Justice Tugendhat :

1. On 15 February 2012 I made an order in the form of an injunction prohibiting the defendants from disclosing documents and information which had been sent by the Claimant ("the IPCC") to the first defendant by mistake on 13 January 2012. I stated that I would give short reasons in writing, and these are they.
2. The first defendant had made a subject access request under the Data Protection Act 1998 Section 7, as had another person ("the other person"). The information intended to be communicated to the other person was by mistake posted to the first defendant.
3. On 3 February 2012 an injunction was granted without notice by the judge hearing out of hours business. It was for practical purposes in the same form as the injunction that I have granted. The hearing before me was the return date. The claim form was issued on 6 February 2012.
4. On 29 December 2011 the papers intended to be disclosed to the first defendant were sent to him in response to his request.
5. On 25 January 2012 the first defendant informed the claimant by telephone that he regarded the material provided to him as insufficient. On 31 January, after further communications, the IPCC came to understand that the papers intended for the other person had been sent to the first defendant. A representative of the IPCC telephoned the first defendant to request the return of the documents sent to him by mistake. The first defendant refused to return the documents, saying that he was discontented with the material with which he had been provided, and if he did not receive what he wanted he would not return the papers sent to him by mistake. He would himself contact third parties to further his cause.
6. On 2 February in a further telephone call with Mr Fox for the IPCC the first defendant said amongst other things:

"If I do not get [the further material which he wants the IPCC to provide to him] within a reasonable timeframe I will not only hang onto the information which I have been sent in error, but I will identify it to Fleet Street".

7. The first defendant has declined to say where the documents are, or give any information about another person or persons, who, he has indicated, are holding the documents. It is that unidentified person or persons said to be holding the documents, and/or those persons who have held the documents before them (if any), who are referred to as the second defendant.
8. Following service of the order on 9 February 2012, the first defendant left a voicemail message with the IPCC claiming that the documentation which had been sent to him in error had been delivered to a named postal sorting office addressed to the claimant. However, the IPCC has not received the documents.
9. The order made on 2 February 2012 included a mandatory provision that the first defendant:

"as soon as reasonably possible following service of this order upon him … disclose to the claimant the identity or all persons:

1. Whom the first defendant knows or has reason to believe to be in possession of any of the documents [the subjects of this order] and

2. Whom the first defendant knows or has reason to believe has been in possession of the Documents since the First Defendant himself came into possession of them

3. Whom the first defendant knows or has reason to believe may come into possession of the documents in the future with the exception of the claimant".

10. The first defendant has not complied with that order and is therefore, submits the IPCC, in contempt of court. But so far no proceedings for contempt of court have been issued.
11. In the order that I made there are similar provisions, save that in my order a date and time have been specified for the disclosure of that information, namely 20 February at 1600. This gives the first defendant a fresh opportunity to comply. My order also included a mandatory requirement that by that date he disclose to the claimant:

"the full basis for his understanding as to the documents whereabouts at that time, including the circumstances in which they came to be in the possession of the person(s) identified [as being in possession of the documents] and any communications (including instructions) between [such persons] and the person(s) providing them with the documents".

12. Neither the order made on 2 February 2012, nor the order I made on 15 February 2012, contains any derogation from open justice.
13. The other person had not been informed what had happened before 2 February and is not the claimant or a claimant in this action. I understand that that person has now been informed. The claimant brings the proceedings to protect not only its own rights, (which are not Convention rights because it is a public authority), but also to protect the Article 8 rights of the other person. See for example Mersey Care NHS Trust v Ackroyd [2006] EWHC 17 at para [96].
14. The IPCC submits that there is a good arguable case that there has been a breach of the duties of confidentiality owed both to itself and to the other person, that further breaches are threatened, and that damages would not be an adequate remedy. The evidence amply establishes this to be so.
15. The case will proceed with the service of the Particulars of Claim in the usual course.
16. These are the reasons why I granted the order.