Shepherd v Fox Williams LLP & Ors (2014)
It was appropriate to grant an individual summary judgment in his claim for delivery up and/or destruction of certain documents that contained sensitive personal data and in respect of which he had not waived privilege.
The applicant (S) applied for summary judgment in his claim for delivery up and/or destruction of certain documents against the respondents.
S's partner (L) was a former employee of the second respondent (F). L had brought employment tribunal proceedings against F. The first respondent solicitors' firm acted for F in those proceedings and gave disclosure of several documents which related directly to S's personal affairs, including documents relating to his divorce and financial position. F, in response to S's request to explain how it had obtained those documents, said that they had been lawfully obtained during an examination of its own computer system. It was common ground at the instant hearing that the documents had been on F's server, having been stored there as a result of L viewing or opening them on her work computer during her employment with F after S had emailed them to her.
S submitted that the documents were all subject to legal advice and litigation privilege, without prejudice and highly confidential. He argued that, having sent them to L's personal email address and not to her work email address, he had not waived his privilege in them. F argued that it was likely that S had emailed the documents to L's work email address and that, in doing so, he would or should have known that F would have an electronic information policy in place meaning that L would have no expectation of privacy in relation to the documents.
(1) There was no dispute that S was entitled to assert privilege in respect of the relevant documents, and in those circumstances the ultimate question was whether S had communicated the privileged documents to L in circumstances importing, expressly or impliedly, that she should treat them as confidential, in which case privilege was maintained, or whether the documents had been disclosed to her with no express or implied requirement that they should be treated as confidential so that there had been a waiver, on a limited basis, of privilege. There was no evidence whatsoever to support the respondents' assertion that S or his solicitors had emailed the privileged documents to L's work email address, and accordingly there was no factual foundation for the respondents' case based on waiver. Any proposition that, by sending the documents to L's personal email address, S was to be treated as having waived his privilege in relation to her employer, went too far. It would have been contrary to the interests of the administration of justice if privilege was regarded as waived in such circumstances or treated as waived generally because a privileged document was disclosed for a limited purpose by a party who plainly did not contemplate doing anything which might cause his privilege to be lost. The fact that S might not be able to assert privilege against L did not mean that he should be taken to have waived privilege more generally or in relation to the respondents specifically. There was no evidence that S had asked L to forward the documents to her work email address or to copy them to her employer's server; he had merely asked her to review and comment on them. L was aware that the documents were privileged, highly confidential and contained sensitive personal data, and she had not realised that they would be stored on the server as a result of her actions. Further, there was no evidence that S had been aware of F's electronic information policy, and F was not entitled to rely on that policy to argue that privilege had been waived. Accordingly, given the highly confidential nature of the documents, the limited purpose for which they were forwarded to L, and the circumstances in which they were communicated by S to L, which carried implied obligations of confidentiality, there was no arguable basis for contending that S had waived his privilege in the relevant documents, notwithstanding that they had been found on F's computer system. In those circumstances, S's application to strike out was well-founded (see paras 48, 52, 54, 56, 58, 60-62 of judgment). (2) Given the matter's history, and in particular the respondents' failure to honour an earlier commitment to deliver up the relevant documents, it was appropriate for them to swear affidavits explaining and confirming that they had delivered up and/or destroyed the documents. There was also a lack of clarity as to precisely what electronic copies had not already been deleted and why, and in those circumstances it was appropriate for the respondents to provide such clarification together with appropriate undertakings (para.63). (3) In the circumstances, it was not appropriate for there to be a reduction in the costs S could recover to reflect the fact that he had abandoned his claim in respect of other documents in F's possession (para.65).
LTL 23/4/2014 :  EWHC 1224 (QB)