Companies - reasons for allowing access to electronic records held by the Judicial Greffe.
Before : |
Advocate Matthew John Thompson, Master of the Royal Court, sitting alone. |
Between |
Nautech Services Limited |
Plaintiff |
And |
Island Information Technology Centre Limited |
First Defendant |
And |
Mark Dennis Wetherall |
Second Defendant |
Advocate E. Moran for the Plaintiff.
Advocate C. B. Austin for the First and Second Defendants.
judgment
the master:
1. This judgment sets out my reasons for allowing access by an Information Technology ("IT") expert retained by the defendants to inspect certain electronic records held by the Judicial Greffe.
2. The material held by the Judicial Greffe follows the granting of an Anton Piller injunction on 22nd April, 2013, in action 2013/153 commenced by the plaintiff in the present action. The Anton Piller injunction was subsequently discharged for reasons set out in a judgment of the Royal Court reported at Nautech Services Limited v CSS Limited and Four Others [2013] (1) JLR 462. By reference to paragraphs 95 and 96(iv) of that judgment the plaintiff was required to deliver to the Judicial Greffe a copy of all images which were made pursuant to the Anton Piller Order before it was discharged. The rationale for this was set out in paragraph 95, the relevant part of which is as follows:-
"Some of that material therefore will be relevant to any claim the plaintiff may wish to bring and should be disclosable to the plaintiff by the defendants on discovery in these proceedings. The purpose of this order at para. 96(iv) below is to provide a mechanism to ensure an application to validate the accuracy of the defendants' discovery is possible, thus protecting the plaintiff."
3. Shortly after the Anton Piller injunction was discharged, the present proceedings were commenced against the first and second defendants. The present proceedings allege misuse of confidential information, breach of copyright and conspiracy albeit at present the conspiracy allegations are unparticularised. The other parties to the conspiracy are the defendants in the Nautech-v-CSS Ltd and Others [2013] JRC 153 judgment ("the first proceedings"). The answer filed by the defendants including further better particulars avers that the defendants transferred four files, which were Microsoft Outlook mailboxes, to a laptop supplied by the defendants to the defendants in the first proceedings. It is further pleaded that the defendants in the first proceedings never accessed the material uploaded to the laptop because of the effect of the Anton Piller injunction.
4. The defendants now wish to retain an IT expert to evaluate what steps the defendants took in relation to the material uploaded to the laptop and whether the defendants in the first proceedings did access such material.
5. In relation to the defendants' application, I am satisfied, in principle, I possess jurisdiction to make the order sought. The application by the defendants is, firstly, to be granted access to the material held with the Judicial Greffe and, secondly, to adduce expert evidence in relation to such material. Although no general summons for directions was issued, I consider that the summons is a form of limited directions and therefore I have power to make the orders sought by reference to Rule 6/26 of the Royal Court Rules 2004, as amended, (the "Rules").
6. I also agree with the defendants that whether or not I should exercise my discretion to allow inspection is whether it is in the interests of justice to do so. I further agree that an analogy can be drawn with the case of Guinness Plc v Market and Acquisition Consultants Limited [1987-88] JLR 104. While the Guinness case concerned whether a plaintiff could use information obtained by an Anton Piller Order to pursue third parties, the Royal Court stated:-
"Thirdly, the main consideration of any court must be the interests of justice.
As Lord Denning, M.R. said in Riddick v. Thames Board Mills Ltd. (4) ([1977] Q.B. at 895): "The reason for compelling discovery of documents in this lies in the public interest in discovering the truth so that justice may be done between the parties." That reason, the court believes, applies equally to the use of documents in another action, either within or outside the court's jurisdiction, but based on the same allegations."
7. In my judgment, in the interests of justice test also applies to allow the defendants access to the material held at the Judicial Greffe through an appropriately qualified IT expert. This is because such access is necessary to allow the defendants an opportunity to prove the case they have advanced. This is particularly important because an allegation of conspiracy, which I have noted above is not particularised, has been made. Early assessment on behalf of the defendants may therefore assist the parties in identifying the scope of any issues to be argued at trial.
8. Such evidence may also assist in ascertaining whether the present proceedings should be consolidated with the first proceedings under Rule 6/11 given the apparent significant overlap between the allegations of conspiracy made in both sets of proceedings.
9. The plaintiff did not challenge the jurisdiction of the court to make such an order or that such an order should not be made. Rather the plaintiff's concerns were that its own IT expert should be present when the material held by the Judicial Greffe was accessed and that the defendants should only access such material as was necessary in order to advance their case. I will deal with each of these points in turn.
10. In relation to access by the plaintiff it has to be remembered that the Royal Court in its judgment in the first proceedings set aside the Anton Piller Order and required the plaintiff to deliver a copy of all material to the Judicial Greffe and otherwise return all other copes and property seized by the plaintiff to the defendants in the first proceedings. In other words the Royal Court deprived the plaintiff of access to the materials they had previously obtained.
11. The plaintiff should not be able to circumvent the effect of that order (and did not seek to do so) by now having access to the entirety of the material in order to prove their case. Yet it is also clear that the Royal Court expected the defendants in the first proceedings to disclose any relevant documents from the material held with the Judicial Greffe. The plaintiff is also entitled to be satisfied that the integrity of the material held is not altered or damaged when access is given to it in order for discovery obligations to be discharged.
12. That concern in relation to preserving the integrity of the documentation also applies to the defendants in the present proceedings having access to the same material in order to prove the case they have pleaded. In my judgment it is therefore appropriate for any such access to take place in the presence of an IT expert retained on behalf of the plaintiff so that such an expert can confirm to the plaintiff, without giving the plaintiff access to the content of the materials stored with the Judicial Greffe, that the defendants' IT expert in accessing such material has not compromised the integrity of the data held with the Judicial Greffe.
13. Secondly, I also agree with the plaintiff that the scope of the access granted to the defendants should be limited to that which is necessary to enable the defendants to adduce expert evidence in support of its case. It is clear from the pleaded case and an affidavit of the second defendant in the first proceedings sworn in relation to the Anton Piller injunction that the steps he took were the uploading of mailboxes onto a laptop. The extent of the access should be to this material only and therefore I authorise the defendants' IT expert to be given access to the materials stored with the Judicial Greffe to take copies of the material the second defendant accepts he uploaded onto a laptop. I further agree with the plaintiff that such access should take place in the presence of an IT expert retained by the plaintiff so that the plaintiff can be satisfied that the copy of the materials stored with the Judicial Greffe that is taken is only the material I have allowed the defendants to access.
14. In reaching this decision I also note that the defendants in the first proceedings have consented to the defendants in the present proceedings having access. I also wish to make it clear that if the defendants' IT expert or any member of any project acting under his authority accidently accesses other material he should immediately cease doing so, should he realise this has occurred.
15. If the defendants' IT expert is of the opinion that access to other material is required in order to provide an opinion to the defendants, then the defendants have liberty to make such an application.
16. If the defendants wish to rely on evidence from their IT expert, they are to file his report by Friday, 27th September, 2014, because such a report may be relevant to future orders I may make in relation to the determination of the present action and the first proceedings.
Authorities
Nautech Services Limited v CSS Limited and Four Others [2013] (1) JLR 462.
Nautech-v-CSS Ltd and Others [2013] JRC 153.
Royal Court Rules 2004.
Guinness v M & AC Limited [1987-88] JLR 104.