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
		26/05/2017

Mr Justice Dingemans:

1. This is the hearing of an application for pre-action disclosure pursuant to CPR 31.16. The Applicants also seek orders that the Court: sit in private pursuant to CPR 39.2(3)(a) and (g); or impose reporting restrictions; and anonymise any public judgment pursuant to CPR 39.2(4); and impose notice of any non-party's application for documents from the Court file pursuant to CPR 5.4C(4).
2. The First Applicant ("Anglia") is a company engaged in genealogical research, often used to find beneficiaries of wills and known as "heir hunting". The Second and Third Applicants ("Mr Peter Turvey" and "Mr Philip Turvey") are directors of Anglia. The First Respondent ("Finders") is also a company engaged in genealogical research, and is a competitor of Anglia. The Second Respondent ("Mr Curran") is the managing director of Finders.

Relevant provisions relating to the application to sit in private

3. The general rule is that a hearing should be in public. CPR 39.2(3(a) permits a Court to hear a claim or part of the claim in private if "(a) publicity would defeat the object of the hearing" or "(g) the Court considers this to be necessary, in the interests of justice". CPR 39.4 provides that the Court "may order that the identity of any party … must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party …". CPR 5.4C(4) provides that a "Court may, on the application of a party … (d) make such order as it thinks fit".
4. The Practice Guidance (HC: Interim non-disclosure orders) [2012] WLR 1003 referred to the provisions of section 12 of the Human Rights Act 1998 ("the HRA"). The HRA gave domestic effect to the provisions of the European Convention on Human Rights ("ECHR"). The practice note referred to both articles 8 and 10 of the ECHR and noted, at paragraph 10, that derogations from the principle of open justice could only be justified in exceptional circumstances, when strictly necessary to secure the proper administration of justice. It was noted that there was no general exception where privacy or confidentiality was in issue. Something short of exclusion of the public would normally be able to meet the concerns of parties. A model form of order was proposed. This provided for ways in order to avoid the risk of jigsaw identification of a party.

Hearing in public and restrictions on access to file

5. It is essential that, where possible, Court proceedings should be heard in public. This is so that the public can have confidence in judicial proceedings. A particular problem caused by hearings in private is that the narrative about the fairness of the proceedings is likely to be provided by the litigants, at least one of whom may be disappointed by the judgment.
6. In this case it is apparent that some of the material referred to in the witness evidence, details of which are known to the parties, is protected from disclosure by statutory provisions. At the commencement of the hearing Mr Hirst and Mr Price QC, to whom I am grateful for their submissions and assistance, agreed that if the material was referred to in a certain way it would not be necessary to sit in private. In these circumstances it was possible to have the hearing in public. However I will make orders restricting access to the Court file, unless an application is made for access on notice to the parties, so that the Court can determine whether access should be provided. As there was at the beginning of the hearing reference to the material in open Court, I will also restrict access to the transcript of the hearing, on the same terms as the order as restricting access to the Court file.

Previous successful application for pre-action disclosure

7. The relevant circumstances are set out in the witness statement of Dominic Garner, a senior associate solicitor. There is also a witness statement from Mr Peter Turvey. As a matter of relevant background Mr Garner referred to the fact that in November 2014 a person (unconnected to the Respondents) posted defamatory material about Mr Philip Turvey. This material had been highlighted by others. After various Norwich Pharmacal orders had been made Mr Curran had been identified as highlighting this material. After a letter before action had been sent, and responded to by suggesting that Finders had no interest in repeating that material, it appeared that other defamatory material was being disseminated. Requests for voluntary disclosure were refused by the Respondents. In the course of correspondence, solicitors for Finders denied that there was any systemic attack on the Applicants. In the event an application for pre-action disclosure was heard by HHJ Moloney QC sitting as a High Court Judge on 11 and 16 December 2015, and pre-action disclosure was ordered on 17^th February 2016. No order as to costs was made.
8. The disclosure showed that Finders and Mr Curran had, notwithstanding what had been asserted on their behalf, published the allegations to a large number of individuals including agents working for Finders to whom information had been blind copied. After various steps in the proceedings defamation proceedings were compromised by a Tomlin order dated 19^th October 2016.

Circumstances giving rise to this application for pre-action disclosure

9. Just over a month after the compromise of the previous proceedings, on 1^st December 2016 Mr Philip Turvey received an A4 envelope sent by 1^st class mail. The envelope contained printouts of emails which seemed to have been sent by the Respondents. The emails included an email dated 8^th June 2015, and an email dated 1^st June 2016. These emails contained material which the Applicants contend is defamatory of them, and contains data which has been processed unlawfully. The passages complained of were in the final bullet point of the email dated 8^th June 2015 and the fourth and fifth paragraphs of the email dated 1^st June 2016. It is not necessary to set out the terms of the emails, which are known to the parties, and it is not desirable to do so because one of the emails referred to the material which is protected from disclosure by statutory provisions.
10. No covering note was included. The Applicants became concerned given Mr Curran's past sending of blind copy emails to freelance agents, that this material had been sent to freelance agents.
11. There was correspondence between the respective solicitors. On 23^rd December 2016 requests for preservation of documents, information about who was sent the emails, and confirmation of various matters was asked of the Respondents. Mr Curran replied saying that he believed the email dated 1^st June 2015 to have been a "draft reminder email sent from abroad". The email of 8^th June 2015 was said to have been a draft email sent by an employee of Finders for checking.
12. There was further correspondence. The Respondents promised a full investigation of their IT systems. On 19^th January 2017 an IT report was sent which had been produced by an in house consultant. The IT report referred to searches for the emails. 3 emails were not located on the system, including the email dated 8^th June 2015 even though that had been reported as having been sent to Mr Curran. Details were given about the extent of publication located by that IT inspection.
13. There was further correspondence. A form of order was proposed by the Applicants but the Respondents replied, by letter dated 16^th February 2017, saying that the Respondents had made sufficient searches.

The application for pre-action disclosure

14. This application was brought by an application notice dated 10^th April 2017, supported by the witness statement of Mr Garner. A draft order was annexed. Paragraph 4 of the draft order provided for search terms which picked up words or part of words found in the emails dated 8^th June 2015 and 1^st June 2016. By way of example the search terms provided in paragraph 4.2 were for "fraudulent" and/or "fraud" and "Turvey" and/or "Anglia" and/or "ARS". Although the word "fraudulent" had been used in one of the emails, the word "fraud" had not.
15. Skeleton Arguments were lodged by the parties. Annexed to the Skeleton Argument lodged by the Respondents was a draft order which provided for a search by a forensic IT services company to determine in relation to the emails dated 8^th June 2015 and 1^st June 2016 by whom they were sent, and to whom they were sent. The Applicants then produced a further draft order which incorporated the Respondents' proposed order, and the material parts of the Applicants' draft order annexed to the application notice.
16. In submissions the Applicants emphasised that there would good grounds to suspect that the Respondents had published defamatory material about the Applicants, and processed data in breach of the data protection principles. The Applicants were able to identify causes of action in libel if there had been publication of the emails. The Respondents pointed out that the emails dated 8^th June 2015 and 1^st June 2016 predated the compromise of the previous action (it was not suggested that if there had been wrongful publication an action would have been compromised by the terms of the Tomlin order) and therefore did not support any suggestion which might be made of any continuing campaign. The Respondents also submitted that the draft order proposed by the Applicants: was far too wide; sought disclosure which could not be ordered as standard disclosure and there was therefore no jurisdiction to make the order; and was an impermissible fishing expedition.
17. In the course of oral submissions the differences between the parties narrowed. The Respondents accepted that the drafting of their order needed to be amended to include the sending on of the contested parts of the emails of 8^th June 2015 and 1^st June 2016, in other emails (if that had occurred), and the Applicants accepted that the phrasing of their proposed search terms was too wide and would capture information which was not required.

Relevant statutory provisions and legal principles relating to pre-action disclosure

18. Section 33(2) of the Senior Courts Act 1981 now provides "On the application, in accordance with the rules of court, of a person who appears to the High Court to be likely to be a party to subsequent proceedings in that court, the High Court shall, in such circumstances as may be specified in the rules, have power to order a person who appears to the Court to be likely to be a party to the proceedings and to be likely to have or to have had in his possession, custody or power any documents which are likely to arise out of that claim" to disclose those documents.
19. CPR 31.16(3) provides that: "the Court may make an order for pre action disclosure only where: (a) the respondent is likely to be party to subsequent proceedings; (b) the applicant is also likely to be party to those proceedings; (c) if proceedings had started, the respondent's duty by way of standard disclosure … would extend to the document or classes of documents of which the applicant seeks disclosure; (d) disclosure before proceedings have started is desirable in order to (i) dispose fairly of the anticipated proceedings; (ii) assist the dispute to be resolved without proceedings; or (iii) save costs" (underlining added).
20. The relevant principles relating to applications for pre-action disclosure were common ground before me. Once the jurisdictional requirements are satisfied, the Court has a discretion whether to make an order. A Court should therefore consider first whether the specific requirements of the rule and statute are met, and secondly then consider the exercise of discretion. see Black v Sumitomo Corp [2001] EWCA Civ 1819; [2002] 1 WLR 1562. There is no formal requirement of arguability for the proposed claim, but that is likely to be very relevant to the exercise of discretion, see Smith v Secretary of State for Energy and Climate Change [2013] EWCA Civ 1585; [2014] 1 WLR 2283. Applications should be limited to what is strictly necessary, and the narrower the disclosure requested and the more determinative it might be of the dispute between the parties, the easier it will be for the Court to grant the application.

Relevant principles relating to disclosure in claims in libel

21. In existing actions for defamation a Claimant may seek disclosure or further information where the Claimant can plead with precision words said, and can satisfy the Court that there has been publication to persons unknown. In such circumstances a Defendant may be ordered to disclose, by way of disclosure or further information, names of other persons to whom the material has been published. Further where the Claimant can show that the Defendant has published to a particular person a defamatory allegation of a specified nature, but does not know what exactly was said, the Defendant may be ordered to disclose exactly what was said. These circumstances apart, the Courts will not permit Claimants to seek disclosure to seek to discover other causes of action because to do so would be to permit impermissible fishing for causes of action. These principles are established by: Barham v Lord Huntingfield [1913] 2 KB 193; CHC Software v Hopkins & Wood 1993 FSR 241; and Best v Charter Medical of England [2001] EWCA Civ 1588; [2002] EMLR 18.

Rights under the Data Protection Act

22. The Data Protection Act 1998 provides certain rights to individuals in relation to the processing of their data. Section 7 provides a right of access to personal data held by others. Section 10 provides a right to prevent the processing of data likely to cause damage or distress. Sections 13 and 14 provide remedies where there has been unlawful processing of data.

Focussed order for pre-action disclosure

23. In my judgment it is right to make the order for disclosure proposed by the Respondents and accepted by the Applicants. This is because it is common ground that there is jurisdiction to make the order, and it is right to do so as a matter of discretion because the relevant passages in the emails dated 8^th June 2015 and 1^st June 2016 might give rise to a claim for libel or a claim for unlawful processing of data, and it is appropriate to discover whether and to whom the emails have been published. Such an order does not pre-judge issues which might be raised as to limitation and serious harm.
24. Further it is also right to make an order to determine whether the relevant passages complained of in the emails were published on to others. It is again common ground that there is jurisdiction to make this further order, and in my judgment as a matter of discretion it is right to do so. This is because it will enable the parties to see whether the relevant passages in the emails were sent on to agents or others. This will assist the parties to resolve any matters in issue between them.
25. However in my judgment it would not be appropriate to order the wider searches proposed in paragraph 4 of the Applicants' original draft order. This is because the proposed search, as set out in the draft order, would capture numerous documents which have nothing to do with the emails of 8^th June 2015 and 1^st June 2016.
26. Mr Price submitted that there was no jurisdiction to make such an order because that part of CPR 31.16(3)(c) (underlined in paragraph 19 above) could not be satisfied, because of the principles relating to disclosure and further information in libel proceedings set out in paragraph 21 above. In my judgment that is not a complete answer to that part of the application for pre-action disclosure. This is because there is no requirement to show that the claim is arguable as a matter of jurisdiction, see the principles relating to pre-action disclosure set out in paragraph 20 above. If there is material showing that the Respondents have defamed the Claimants in a particular document then CPR 31.16(3)(c) would be satisfied, because the Respondents' duty by way of standard disclosure would extend to that document. However that is not to say that the principles set out in the cases referred to by Mr Price are not relevant. In my judgment those principles are relevant to the exercise of discretion, in much the same way that the issue of arguability was relevant to the exercise of discretion in Smith v Secretary of State for Energy and Climate Change. In my judgment it would be inappropriate to permit the Applicants "to fish" in the Respondents' electronic database for potential causes of action which would have been the result of the proposed paragraph 4 of the draft order annexed to the application notice.

Conclusion

27. For the detailed reasons given above I will order that there be pre-action disclosure in the terms proposed by the Respondents and accepted by the Applicants. I will also order searches for the passages complained of in the emails to be carried out. I refuse the wider order proposed in paragraph 4 of the draft order annexed to the application notice. The protective provisions relating to legal privilege and commercial confidence in the draft orders should be incorporated into the order.