Mr Justice Warby :
Introduction
- In Ibiza one summer evening in 2010 the claimant, Mr Candy, engaged in some embarrassing behaviour when heavily intoxicated. The second defendant, Mrs Holyoake, recorded it on her phone. Mr Candy knew this at the time, or at least for some of the time. The morning after, Mr Candy asked for deletion of what had been recorded ("the Recording"). Some of the Recording was deleted but some survived.
- Prompted by what he interprets as threats made in 2014, Mr Candy brought this action against Mrs Holyoake, her husband, and a third defendant in December 2015. The fourth and fifth defendants were added to the claim in November 2016. In its present form, the claim against all defendants is for injunctions to restrain disclosure or dissemination of information; for delivery up, destruction or erasure of the information; and for disclosure of the identities of those to whom the information has been disclosed. The claims as they stand are in breach of confidence, misuse of private information, and data protection. As set out in the Amended PoC ("PoC"), they relate to the Recording.
- The other defendants, besides Mr Holyoake, are three business associates of his: Messrs Wells, Lovering, and Pym. Mr Candy's pleaded case is that the five defendants shared an intention and participated in a scheme to intimidate him in the context of a business dispute by deploying the Recording against him.
- There has been one substantial hearing in the case before me. In late February 2017, I heard applications by Mr Candy for judgment to be entered against all five defendants without a trial, and an application by the defendants for an order requiring Mr Candy to provide a further and better response to a Part 18 Request made on 28 October 2016. I dismissed Mr Candy's application for judgment against the first three defendants, and he did not press the other application. I granted the defendants' application. The judgment handed down on 2 March 2017, [2017] EWHC 373 (QB) ("the First Judgment"), gives a more detailed account of the background and genesis of the claim, and its procedural history. I shall have to return to some of that, but it is unnecessary to repeat the detail here. What is relevant for present purposes is the order I made on 2 March 2017.
- By paragraph 1 of the order I directed that "By 4pm on 16 March 2017 the Claimant shall file and serve a replacement Part 18 Response to the First to Third Defendant's request of 28 October 2016, supplying the information requested in the request." I also gave detailed procedural directions, to ensure the matter progressed to trial. It has since been listed for trial over 2-3 days in March 2018.
- In the meantime, on 16 March 2017, a replacement Part 18 Response ("the Second Response") was served on behalf of Mr Candy, in purported compliance with my order. The defendants maintain that this document fails to supply all the information requested, and that Mr Candy is therefore in breach of my order.
The applications
- The first of the two applications that are before me today is the defendants' application by notice dated 13 June 2017 for an order that the claim be struck out and judgment be entered for the defendants on the grounds of non-compliance with the Court's order of 2 March 2017 and/or on the grounds that the PoC are "unreasonably vague and incoherent in that they fail to set out the items of information alleged to be private and confidential". In the alternative, the defendants seek an "unless" order requiring a proper answer to the Part 18 Request and dismissing the claim if that is not forthcoming.
- The defendants' position is that they have made concessions and offers to Mr Candy in respect of the Recording, which afford him all the relief to which he is properly entitled. Their primary case is that any residual claim in confidence, privacy or data protection is fatally flawed for lack of adequate particularity, and should therefore be struck out on both the grounds identified. An "unless" order would simply lead to the further waste of costs on what they say is a grossly disproportionate piece of litigation.
- The second application that is before me today is more recent. It is made by Mr Candy. By notice dated 8 November 2017, he seeks permission to re-amend his PoC to add two further causes of action, namely unlawful means conspiracy and conspiracy to injure and, in an Amended Confidential Schedule, to plead some further details of the existing claims.
- Mr Candy's case is that if (which he disputes) there is any deficiency in the Second Response it is made good by the proposed amendments to the Confidential Schedule, which should be allowed, with the consequence that the strike-out application falls away. He further argues that if (contrary to his primary case) he is unable to claim that the information which he seeks to protect is confidential and/or private he has at least an arguable claim for the same substantive relief as a remedy to prevent the implementation of a conspiracy involving all five defendants. The defendants' position is that the draft amendments to the Schedule fail to cure the deficiencies of the Second Response, and the draft pleading fails to disclose any reasonable cause of action for conspiracy.
Hearing in private
- This judgment follows a hearing of those applications which took place largely in private, pursuant to CPR 39.2(2)(a), (c) and (g) as I considered this was necessary, in order to avoid prejudice to the rights asserted by Mr Candy. It is possible to set out much of the relevant factual picture in this public judgment. However, as with my First Judgment there are aspects of the facts that must be kept confidential for the same reason. This judgment is therefore prepared in two versions: a public version which contains redactions and a full private version which will not be available, and reporting of which will be prohibited, until trial or until some different order is made. The reasoning on this occasion is essentially as it was in March 2017, for which see the First Judgment at [8]-[10].
Procedural background
Events up to 2 March 2017
- It is necessary first to recall some key features of the procedural background to the Order of 2 March 2017, and the reasons why that order was made. The first point to note is that, in its origin, the claim related only to the Recording. As I said in the First Judgment:
"17 …
(2) In the Particulars of Claim complaint was made of dealings with 'the Document'. The 'wrongful acts' complained of were (a) the keeping and retention of the Document by Mr and Mrs Holyoake, despite the requests and an alleged promise to delete; (b) its disclosure to Mr Wells; and (c) its keeping or retention by him."
18. .. the day on which the Recording was made was Saturday 12 June 2010. The case pleaded in the Amended Particulars of Claim is that on that day
"… the First and Second Defendants came into possession of a document as identified in paragraph 2 of the Confidential Schedule to these Particulars of Claim ('the Schedule') in the circumstances as described therein ('the Document')."
- Paragraph 2 of the Confidential Schedule contains this definition: "The Second Defendant filmed the Claimant's drunken behaviour on her iPhone ('the Document')."
- The Amended PoC go on to make allegations of wrongful dealings or threats to deal wrongfully with "the Document". Details are set out in the First Judgment at [19]-[21]. At [41] of the First Judgment I held that these passages in the PoC
"… show that generally speaking the claim is presented as one concerning 'the Document', that is, the Recording. It is the Document/Recording that is said to be private and confidential and to 'constitute', not contain, his personal data. The wrongful acts alleged are dealings with the Document/the Recording or the processing of the personal data."
- There were some references in the PoC to the "contents" of the Document. As to these I said this in the First Judgment:
"It is true that there are some passages in Mr Candy's statements of case that refer to the contents of the Document, but these are few and disparate…. These references represent departures from the general theme. They do not of themselves alter the nature of the case set out in the body of the Particulars of Claim. There is at best a tension or ambiguity within the claimant's statements of his case. …"
- Secondly, the claim as originally presented was concerned only with those parts of the Recording (or "Document") that had survived Mrs Holyoake's deletion efforts of June 2010. That is obvious from the fact that the claims were that the defendants had "retained" or "kept" the Document despite requests "to delete the same", and that Mr and Mrs Holyoake had "disclosed" and/or "provided" others with the Document.
- The first to third defendants (the only ones sued to start with) responded to the claim accordingly.
(1) Their Defence of February 2016 was pleaded on the footing that "…The subject-matter of the claim is a digital film, not any information set out or contained in the Confidential Schedule…" The defendants declined to plead as to "the content of the digital film" on the grounds that "…no allegation is made in the Particulars of Claim or Confidential Schedule regarding the privacy or confidentiality of any individual comments, or any particular aspects of the Claimant's comments…"
(2) On 26 September 2016, the defendants' solicitors wrote a letter to those representing Mr Candy, noting that nothing had been pleaded about the content of what Mr Candy had said. The letter asserted that
"the content of what your client said about xxxxxxxxxxxxxxxxxxxx is not the subject of this action, unless your client intends to argue that anything said, on any subject, private or not, among friends on a private occasion is subject to an implied obligation of privacy and/or confidentiality. We do not understand that to form part of your client's case as presently pleaded. It is in any event not an arguable proposition."
(3) An offer was made, directed at the claim as presented:
"[Mr Holyoake] is willing to erase and/or destroy all copies of the clips in any of the Defendants' possession, leaving only copies of the relevant clip in the possession of his solicitors in the Chancery Division action, which they could use solely for cross-examination in that action (if so advised), and, if necessary, as evidence of what was said should your client contest that. If this action continues, plainly we will have to retain copies for use solely for the purpose of this action. If this is acceptable to your client, we have no doubt that it can be embodied in an agreement."
(The reference to the Chancery Division action is to a claim by Mr Holyoake against Mr Candy and others for damages of over £130m).
(4) There was no Reply to the Defence, nor any response to the letter of 26 September. Following disclosure, Mr Candy sought to amend his case to join the fourth and fifth defendants, but made no changes to the nature of his claims.
(5) On 28 October 2016, the first three defendants made their Part 18 Request, of which I said this in the First Judgment:-
"40. …. The Request has a preamble, the gist of which is to assert that Mr Candy's complaint is, on analysis "that the Defendants have retained or kept the 'Document' (i.e. the digital film), and that the first and second Defendants have disclosed it". Thus, it is said, the complaint must relate only to the surviving film clips, and not to any clips which were deleted. On that basis the four requests ask, in summary (1) whether the information conveyed by the words recorded on the surviving digital clips is alleged to be private and/or confidential, or only the visual images and recorded sound; and (2) - (4) if the allegation concerns the information in the words, which such information is alleged to be private and/or confidential and on what basis, specifying in respect of each item of information the circumstances said to import an obligation of confidentiality or, as the case may be, to give rise to a reasonable expectation of privacy.
41. Those all appear to me to be legitimate requests, in principle…. [the …] at best … tension or ambiguity within the claimant's statements of his case … justifies the Request."
- The first order for a response to the Part 18 Request was made by me on 4 November 2016. It was made by consent. On 11 November 2016, Mr Candy filed his first response ("the First Response"). It had a preamble of its own which said, among other things, that "the claimant's case is and has always been that both the Document and its contents are private and confidential. The claim is not limited solely to the visual images or recorded sound." The First Response went on to say that the case had been "plainly stated", that "the contents of the Document are private and confidential. This …. includes the underlying events which were recorded or captured on film." The emphasis in these quotations is mine.
- This answer made sufficiently clear that Mr Candy wished to restrain disclosure of information about events that had been recorded, whether or not that was done by disclosing the Recording itself. As has since emerged, the answer contained a latent ambiguity. "The Document" was defined in such a way as to embrace everything that was originally recorded. But to say that its contents "are" private and confidential implies a claim in respect of the surviving parts. Reference to "the underlying events which were recorded" is, by contrast, capable of including events which were recorded but then deleted. I do not believe this ambiguity was intentional. The intention at that time was to extend the claim to cover the information in the surviving parts of the Recording, and no other information. That is how the defendants and I understood it.
- The defendants complained that the First Response was "wholly unsatisfactory", failed to provide the information requested, and put forward a case inconsistent with the pleaded case. Their application notice for an order striking out the First Response and requiring a fresh one was issued on 25 November 2016 and came before me on 26 February 2017.
- Paragraphs [43]-[44] of the First Judgment contained these findings about the First Response:
(1) The assertions that that Mr Candy's case had "always been" thus, and that this was "plainly stated" in the main statement of case were rejected.
(2) Nonetheless, the First Response was "a sufficient answer to the defendants' request for clarity about whether the claim is limited to the Document, and to their request to make clear whether the claim relates to all or just some of the underlying information".
(3) It was not good enough, however: "… I do not consider that this is a wholly satisfactory answer to the defendant's requests, and the Response does not contain an adequate answer to the defendants' requests (2) to (4)."
- I went on to identify the deficiencies. Rejecting a submission advanced by Mr Sherborne that the claimant's case was sufficiently pleaded I said:
"47. There are several problems with this. Most significant of these is the fact that neither privacy rights nor confidentiality rights are imposed in respect of information purely by virtue of the fact that it is disclosed and comes to a person's attention on an occasion which is private, rather than public. Nor does information attract the protection of the law of confidence purely by reason of being confided. The nature of the information is unquestionably an element of a claim in traditional breach of confidence, and one of the factors that go into the mix when applying the circumstantial test for whether information is private in nature. "
- As Mr Price QC has pointed out in argument, these propositions are supported by copious authority. See, for instance, Toulson & Phipps on Confidentiality 3rd edn. paras 3-078, 3-081, 3-086 and 3-087 (confidentiality). And 7-025 (misuse of private information).
- My conclusions were:
"49. In this case it is in my judgment essential, if there is to be a fair and efficient resolution of the claims, for the claimant to identify the information he seeks to protect and to specify the matters relied on in support of the contention that the retention, disclosure or use of the information would represent a misuse of private information or a breach of confidence. A proper pleading of this claimant's case would need to itemise (inevitably, in a private and confidential document) the items of information for which protection is sought, what the "nature" of that information is said to be, and any matters to be relied on as to why information of that "nature" is (inherently or for any other reason) private or, as the case may be, confidential. If this is not done, there is a real risk that the trial of the action will descend into confusion. If it is done, the trial judge will be able properly to evaluate the claim and determine what if any relief should be granted in privacy or confidentiality.
50. Although to some extent the Response does answer the defendants' questions it is better to do as the defendants seek, and to strike out that response, and order a further one. It seems to me that an order on the lines of the one set out in paragraphs 2 and 3 of the application notice would suit the purposes I have identified, though the precise wording can be settled after judgment if not agreed."
- The order that was made followed the wording of the application notice, and was in the terms I have set out at [5] above.
Events since 2 March 2017
- The Second Response, served by Mr Candy on 16 March 2017, was a "Confidential Response". It incorporated some of the language of the First Response, but it differed in material respects. Request 2 was to "list the items of information which the words [recorded on the surviving digital film clips] conveyed and which are alleged to be private and/or confidential". In answer, the Response listed four categories of information. Three were "The claimant's statements about …." specified topics. The surviving parts of the Recording contained statements on each of those topics. The fourth topic was information about one aspect of Mr Candy's conduct that evening that was recorded in a surviving part of the Recording. It is quite clear that, at this stage, Mr Candy's team still intended that the claim should encompass (a) at least some parts of the surviving parts of the Recording and (b) the information recorded in those parts. No broader claim was contemplated at that time.
- On 27 April 2017, the defendants served an Amended Defence. Paragraphs 2A and 2B dealt with the claims in respect of the Recording. Mr and Mrs Holyoake admitted liability in respect of (a) the claim for an injunction in relation to the Recording (b) delivery up or destruction of all copies of the Recording; and (c) disclosure by witness statement of their dealings with copies. The third defendant, Mr Wells, denied any liability and offered no undertakings. The fourth and fifth defendants reiterated (i) previous assertions that they were happy to delete any clips in their possession and to confirm they had no intention of publishing them; (ii) offers of undertakings not to use or disclose any of the films pending the conclusion of this claim, and undertakings co-extensive with any relief ordered against the first to third defendants. Their case was and is that in the light of such communications and offers the continuation of this claim against them is wholly unnecessary.
- As to the claims in respect of the "contents" of the Document and the "underlying information", the defendants set out a number of criticisms of the Second Response and its alleged non-compliance with my order and the requirements of the law. Without prejudice to those criticisms, they chose to address the claim by drawing on a transcript of the surviving parts of the Recording ("the Transcript"), identifying what they took to be the passages that were said to be private or confidential or both, and pleading their case accordingly. The Amended Defence makes plain that the defendants did not understand the case against them to go beyond the information recorded in the surviving parts of the Recording and thus embodied in the Transcript.
- The chief features of the case set out in paragraphs 21D to 21M of the Amended Defence are, in summary: that none of the information in question was Mr Candy's private information, nor was any of it confidential in nature; further and alternatively, it was too trivial to attract the law's protection; nor was any duty of confidence imposed in the circumstances; there is not and never has been any sufficient threat to disclose, such as to justify an injunction; alternatively no proportionate injunction could be framed; alternatively, an injunction should be refused because disclosure of some of the information would serve "a clear public interest".
- On 18 May 2017, the defendants' solicitors wrote setting out again their criticisms of the Second Response, and arguments as to why the claim was fundamentally lacking in proper particulars. They threatened an application to strike out, if the case was not re-pleaded by 1 June. It was not, and on 13 June the present application notice was issued.
- Witness statements for trial were exchanged on 28 September 2017.
- On 31 October 2017, Mr Candy's solicitors provided the draft amendments to the PoC which are the subject of his present application. Mr Candy's solicitors invited the defendants to consent to the amendments, and to withdraw the strike-out application as "redundant and misconceived". They did neither. The draft amendments fall into two main categories.
(1) First, there are amendments to the existing claim in breach of confidence, privacy and data protection. These appear in the Confidential Schedule to the PoC at paragraph 2A, which sets out to identify "for the avoidance of doubt" those "contents of the Document and/or information which it contains as being the subject of his complaint". This, therefore, is a second statement of Mr Candy's case on that issue, additional to that contained in the Second Response. A revised version of this paragraph was produced in the course of the hearing, as I shall explain.
(2) The other main category of amendment is the pleading of claims in unlawful means conspiracy and/or conspiracy to injure. Those claims are set out in new paragraphs 7A to 7C of the draft Re-Amended PoC and paragraph 14 of the Confidential Schedule. The central allegation in these paragraphs was of a threat "to disseminate the Document or its contents". But here, the pleaders have sought to define "contents" more broadly than before. By the end of the hearing there had been three iterations of this set of proposed amendments, and the process of adaptation was still not complete. A further draft was provided after the hearing.
- Also, since the hearing, Mr Candy's team has prepared and submitted a draft amended version of the Second Response.
The Striking out Application
- The argument for Mr Candy was that the draft amendments at paragraph 2A of the Confidential Schedule are proper and meant that the strike-out application "falls away". I was therefore urged to address his application first. I am not sure that is a sound analysis. A draft pleading of October 2017 cannot turn a default of March 2017 into compliance. The Confidential Schedule does not purport to replace the Second Response; it is additional to it. It does not purport to set out why the information is said to be confidential or private. Further, as mentioned, this aspect of the draft amendments has mutated during this hearing. In this judgment, it is convenient to deal first of all with the defendants' attack on the existing statements of case for Mr Candy, and their alleged non-compliance with the rules and my order.
The rules
- The defendants' application invokes CPR 3.4(2)(a) and (c), which are in these terms:
"(2) The court may strike out a statement of case if it appears to the court –
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
… or
(c) that there has been a failure to comply with a rule, practice direction or court order."
- The first step is to determine whether the threshold condition is satisfied. Has there been a failure to comply with an order? Does the statement of case disclose no reasonable grounds? If the answer is yes, the court has a discretion to exercise. The court "may" strike out the statement of case. If it does, "it may make any consequential order it considers appropriate": r 3.4(3). The available orders include entering judgment, "unless" orders, and a variety of other options.
Non-compliance with the Order?
- I approach this question without reference to the draft amendments, which clearly cannot count as compliance with my Order. They could of course be relevant to the exercise of any discretion that arises.
- My clear conclusion is that the Second Response was non-compliant with my order in that it failed to provide the information requested in request 2, failed to provide the information sought by the first part of request 3, and illegitimately merged the information requested by the second part of request 3 and request 4. My reasoning follows.
- All the requests were made in respect of "the information conveyed by the words recorded on the surviving digital film clips". Request 1, and thus the first requirement of my Order, was to state whether that information was alleged to be private and/or confidential, or only the visual images and recorded sound. Answer 1 remained as set out above. It was that "the contents of the Document are private and confidential … this … includes the underlying events or statements which were recorded or captured on film". This is clear enough, as I have said.
- Request 2, and the second requirement of my Order, was that if the information conveyed by the words recorded on the surviving clips was alleged to be private and/or confidential, as it was, Mr Candy should
"state whether the complaint relates only to "words in which the Claimant made "comments regarding [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx [Topic XXX] [para 2 of the Confidential Schedule] or to all the words recorded on the surviving digital film". "
Answer 2 was:
"See the Answer to 1 above. The complaint relates to the following information: (a) The Claimant's statements about xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx [Topic XXX including person AAA];
(b) The Claimant's statements about xxxxxxxxxxx [Topic YYY]; (c) The Claimant's statements about xxxxxxx [Person BBB]; (d) The Claimant's xxxxxxxxxxxxxxxxxxxxxxxxxxxxx [conduct in certain respects on the night in question]."
- Request 3 arose "If the complaint relates to all the recorded words". The request was in two parts, which I shall call 3(1) and 3(2). Request 3(1) was to "list the items of information so conveyed and which are alleged to be private and/or confidential". Answer 3(1) responded to this as follows:
"The Claimant's case in relation to each of the items of information set out in paragraphs 2(a) to 2(d) above is private or confidential and/or the claimant has a reasonable expectation of privacy in relation to the same or the Defendants are under an obligation to keep the same confidential."
- Request 3(2) was "explain clearly the basis on which it is alleged that each item of information is alleged to be private information concerning the Claimant and/or to have the necessary quality of confidentiality." Answer 3(2) set out in 10 sub-paragraphs (a) to (j), the matters relied on as supporting the claimant's case on the privacy and/or confidentiality of the information.
- Request 4 was to set out "the circumstances which are said to import an obligation of confidentiality" and the "circumstances relied on [as] giving rise to…[a reasonable] expectation [of privacy]." Answer 4 was "Paragraph 3 above is repeated."
- The Second Response was, whether by accident or design, confused, evasive and unclear. Apart from Answer 1, it failed to provide any direct or clear answers to what were very clear and specific requests. Answer 2 was not a clear or unequivocal answer to Request 2. It failed to make clear the precise extent of the complaint, as required by the Request. It would have been a simple matter to say that "the complaint relates to all the words recorded on the surviving digital film" or that it "does not relate to all the words but only to" specified words. It is quite unclear why Mr Candy's legal team did not make an unequivocal statement of that kind.
- Answer 3 contained no answer to Request 3(1). It contained no "list [of] items of information conveyed by the words". Nor is this deficiency made good by the reference back to Answer 2. That answer did not provide a list of "items of information conveyed by the words". It simply gave a list of topics. Answer 2 was not even a clear and unequivocal account of the statements to be relied on. There was no obstacle to the provision of specific information on that matter. That is demonstrated most clearly by the way the defendants went about the task in the Amended Defence, which sets out clearly and unequivocally the very words which the defendants took to be the subject of the complaint. Nor was there any good reason not to specify the words which are the subject of the complaint. Merely specifying the words would not, in my judgment, have been a sufficient answer to this request. What the defendants and the Court were after, clearly, was a description of the nature or character of the information which it was sought to protect, for instance, "Information that the claimant had made statements about [A] that were of [B character]",
- Requests 3(2) and 4 were clearly aimed at eliciting separate and distinct kinds of information about the claimant's case. Answer 3(2) provided a combined answer to requests 3(2) and 4. By doing so, it failed to distinguish between facts or matters going to the question of whether the information was of a confidential nature or quality, and the separate and distinct question of whether it was imparted or received in circumstances importing an obligation of confidentiality. By the same token the Answer failed to provide separate analysis of the matters going to the private nature of the information, and the question of whether the claimant enjoyed a reasonable expectation of privacy in respect of it.
Discretion
- In the First Judgment at [31]-[33] I identified the general test and summarised some other points that emerge from the authorities concerning the exercise of this discretion. Much of this has some relevance to the present application. Of particular relevance to the submissions advanced on behalf of the defendants are the following:
"31. Where a party breaches an order or fails to comply with a rule, a range of sanctions is available. The gravity of such breaches can vary considerably. As the Supreme Court stated in Summers v Fairclough Homes [2012] UKSC 26 [2012] 1 WLR 2004 [61] "The test in every case must be what is just and proportionate". At the extreme end is the sanction of striking out but that, the ultimate sanction, is appropriate only in extreme cases.
32. Some further relevant points can be drawn from the authorities.
…
(4) Deterrence is an important factor where deliberate misconduct is concerned. But on any application to strike out, it is relevant and may be important, to consider whether there are any alternative sanctions that may be, individually or cumulatively, more fitting that an order striking out: Summers [52]-[61], discussed further below.
…
(6) In the procedural environment of today, there is new and stricter approach to compliance with Court orders and the Court's approach to relief from sanctions is relevant also to the Court's discretion to strike out under CPR 3.4: Walsham Chalet Park Ltd v Tallington Lakes Ltd [2014] EWCA Civ 1607 [44]."
- At [34] of the First Judgment I observed that if deliberate non-compliance were established, that "would plainly be a powerful factor in the exercise of the discretion".
- An additional point is pressed on me by Mr Price for the defendants: that the merits of the underlying case are also an important consideration. His primary submission is that the statements of case disclose no reasonable grounds of claim. But he also cites Maqsood v Mahmood [2012] EWCA Civ 251, where the Court upheld the dismissal of a claim under CPR 3.4(2)(c) in circumstances where the merits of the claim turned on a proposition which was "far from clear as a matter of law" (Ward LJ at [40]). I am not sure that case helps a great deal. It turned very much on its own facts. The Court concluded that the Judge's exercise of discretion could not be faulted on the basis that he had failed to appreciate the point of law when the point had not been clearly put before him, due to procedural defaults on the claimant's side: see [41]-[42]. Nonetheless, I agree that it is relevant to make some assessment of the prospects of success as well as the potential importance of the claim which a defendant seeks to strike out on account of procedural failings.
- My conclusion on the question of discretion is that I should not strike out the claim. That would be disproportionate, for these main reasons:
(1) Seductive though some of Mr Price's submissions have been, I am not persuaded by him that the defaults in compliance with my order that I have identified were deliberate and defiant, as he argues. I do not think they were wholly accidental. Mr Candy's legal team are experienced and expert. It would, as I have said, have been a simple matter to put the answers clearly and unequivocally. My conclusions are that the claimant's side have engaged in fudge that has tended to obscure rather than elucidate important aspects their client's case, and that in doing so they have been careless to a high degree.
(2) If I turn to an assessment of Mr Candy's case, I do regard the claim as pleaded in the Amended PoC and Second Response as muddled and questionable. But I am not convinced that it is manifestly hopeless, or so clearly beyond rescue that I should call a halt to the claims at this juncture. The draft amendments as first advanced in version 1 of paragraph 2A of the Confidential Schedule are not a satisfactory remedy for the flaws that currently exist. Nor, in my judgment are the second or later versions of such amendments. But Mr Candy's team have now come close to stating a case that is sufficiently clear, and sufficiently arguable to go to trial.
(3) That case goes beyond what was pleaded in the original PoC (relating to the Document) and beyond what is pleaded in the Second Response (relating to the Document and its contents). It embraces information that was imparted and received that night in June 2010, and embodied in parts of the Recording that have now been deleted. It extends beyond that, to information that was imparted and received even if not embodied in the Recording. That is a new and expanded case. It has not yet been clearly or sufficiently pleaded, and to an extent I cannot see how it could be: see the next section of this judgment.
(4) But I do not accept that the claims are incapable of adequate formulation, or that the defendants are or will be unable to comprehend or deal adequately with the claims at a trial. I believe we have reached the point at which I can specify clearly enough what is legitimate and what is now required to ensure that the case is crystallised in a way that allows a fair and efficient trial. In reaching that conclusion I have regard to what the defendants have been able to do by way of stating their case in the Amended Defence.
(5) I bear in mind that the trial which it is sought to avoid by way of an order dismissing the claim is relatively short, at 2-3 days' duration, the procedural preparations for which have been substantially undertaken. The need for further preparation by way (for instance) of witness statements will be modest if any.
(6) The parties are both well-resourced and can be taken to be on an equal footing.
(7) I also have regard to the other available sanctions and the value they may have in this litigation. I bear in mind that all the evidence and information before me suggests that Mr Candy is well able to meet an order for costs.
- In all these circumstances, my conclusion is that I should make an "unless" order. I shall come to the form of order later.
The privacy and confidentiality claims and the draft amendments
- These claims, as presented in the Amended PoC and Second Response, have the following significant flaws. First, there is inconsistency: the Amended PoC is internally inconsistent, and it and the Second Response are inconsistent with one another.
(1) In the Amended PoC, the claims are pleaded exclusively by reference to "the Document". The position in this respect remains as stated in the First Judgment. The central assertion as to privacy and confidentiality is the one contained in paragraph 4 of the Amended PoC. This asserts that "the Document is private and confidential and/or falls within the scope of the Claimant's private life under Article 8 …". The data protection claim is also pleaded by reference to "the Document" as indeed would seem inevitable given the definition of "personal data" in s 1 of the DPA; one cannot have "personal data" that is disembodied. The only reference in the Amended PoC to the "contents" of the Document is to be found in paragraph (1) of the prayer for relief. But the claim there advanced, for an injunction to restrain use or disclosure of the "contents" has no basis in the main pleading. The Confidential Annex also refers to the "contents" at paragraph 3. But this is expressly pleaded by way of "support" for the case set out in paragraph 4 of the Amended PoC. It cannot in principle expand the scope of the claim there stated.
(2) In the Second Response, by contrast, the claim has been expanded to cover the contents of the document and the underlying information, as explained above. This is unsatisfactory and unacceptable.
- The amendments proposed up to the end of the hearing did not deal with this flaw. There was a proposed amendment to paragraph 3 of the Amended PoC, but this dealt only with the circumstances in which Mr and Mrs Holyoake came into possession of "the Document". There was no draft amendment to the assertion of privacy and confidentiality in paragraph 4. This remained a claim in respect of "the Document" alone. The parent pleading needed amendment to bring it into line with its unruly offspring, and vice versa. The three documents – if there are to be three - must be consistent with one another in their description of the matter and information to which the claims relate. Anything else is a recipe for (further) confusion and unnecessary expense.
- The second point is related. If a claim to confidentiality and/or privacy is to be made in respect of the contents of the Document that must be made quite clear in the body of the Amended PoC and not just in some subsidiary or separate document which is protected by confidentiality. This is necessary in the interests of clarity and in the interests of transparency.
- An attempt has been made to extend the scope of the claim by inserting a new paragraph 2A into the Confidential Schedule in these terms:
"For the avoidance of doubt, and on the basis of those clips so far disclosed by the Defendants, the Claimant will refer to the transcript which is attached to his witness statement dated 28 September 2017 ("the Transcript"), and in particular the following contents of the Document, as being the subject of his complaint:
(This is the first version of paragraph 2A). This approach is misconceived. Anything that is truly confidential can properly be kept in the Confidential Schedule, but wording such as this quite plainly does not qualify. Paragraph 4 and, it may be, other parts of the body of the Amended PoC need amendment to make clear the scope of the claim. Indeed, the Amended PoC should contain as much of the detail of the claim as can be set out without revealing the very information that is the subject of the claim, or creating a real risk of its direct or indirect revelation.
- The fresh draft amendments prepared and submitted post-hearing improve the position in the above respects, but they have still not fully remedied it. They would remove the discrepancy between the Confidential Schedule and the Second Response. But they do not address the mismatch between the claim in the PoC (which relates to "the Document") and its Confidential Schedule (which advances broader claims). It is still the case that in these drafts the true scope of the intended claims can only be discerned by reading the Confidential Schedule.
- Thirdly, because the Second Response fails to comply with the Part 18 Request and my order, the existing pleadings still do not clearly or adequately define the nature of the information which is the subject of the claims in privacy or confidentiality. This, like the first two flaws, is remediable. The defendant has illuminated the way in the Amended Defence. But the claimant has not yet found the remedy.
- The claimant's team have attempted to grapple with this problem in new paragraph 2A of the Confidential Schedule. There are two problems with this. The first is that the document is in different terms from those of the Second Response, but does not purport to be a substitute for it. The claimant therefore proposes to have two statements of his case on this issue, in two different documents. That is not satisfactory. This problem is resolved in the latest draft amendments.
- The second problem is that paragraph 2A still fails to state the case clearly enough. The first version of this paragraph, quoted above, sets out a non-exhaustive statement of those aspects of the "contents" of the Document that are the subject of complaint. Similar vagueness is to be found in the paragraphs that follow, in which the attempt is made to identify the information which is the subject of the claim. Paragraph 2A(1) refers to "statements about [topic XXX] [which] includes a number of comments about [person AAA] as appears from the Transcript clips 2, 3 and 7." (emphasis added). That is not satisfactory. The claimant's complaint about what is in the Transcript must be stated exhaustively. There is no good reason why it should not be so.
- Further, the description of the information which it is sought to protect is still lacking in adequate specificity. To refer to "statements about [topic XXX]" is not good enough. As already noted, the claimant is in a position to specify the very words relied on. Finally, the description needs to give at least some idea of what it is about the nature of the statements contained in the specified words that he says makes them protectable as confidential or private information. No real attempt was made to do this until version 2 of the draft Amended Confidential Schedule was produced, half way through this hearing. In that version, the proposal is to describe the information which is the subject of his in this way: "The fact of the Claimant having made statements about [topic XXX] and his private feelings and thoughts about this and [person AAA]."
- This was wording produced in haste over the midday adjournment. It seemed to me that this draft was imperfectly expressed. The real target, surely, is not information about the mere fact that Mr Candy said something about these topics and people. It is information that he said what he said on those topics and about those people, or something similar. That is how I read the relevant parts of his witness statement. To a limited extent this point has been reflected in the latest round of draft documents. The most recent re-draft of the Second Response asserts, as one of the reasons why the information was confidential and/or private, that it was "the Claimant's expression of private thoughts and feelings about the matters referred to" in paragraph 2A of the Confidential Schedule. But the claimant's team still need to revisit this aspect of the Confidential Schedule itself.
- Fourth, there are allegations in the Confidential Schedule that are not anchored to anything in the Amended PoC. The Amended PoC contain only two references to the Confidential Schedule. Those references are in paragraphs 3 and 4, which refer to the Document and the circumstances in which Mr and Mrs Holyoake came into possession of the Document. The Confidential Schedule is 13 paragraphs long. Only paragraphs 1 to 3, or at best 1 to 4, are concerned with these two topics. As to the rest of the Schedule, there is nothing in either document to explain their inter-relationship.
- This flaw was identified by me at the hearing. It has been addressed in further draft re-amendments prepared since then, which add cross-references to paragraphs 3, 4, 5, 7A.2 and 7A.4 of the PoC. These amendments are satisfactory.
- I have hesitated over whether the Second Response does an adequate job of setting out the grounds on which the information is said to be confidential and/or private and to be the subject of a duty of confidence and/or a reasonable expectation of privacy. It confuses these various topics and for that reason does not comply with my order, as I have said. But will it do, nonetheless? Mr Price has advanced a vigorous and persuasive argument to the effect that the Second Response is not just confused in this respect but also falls short of setting out an adequate case on any of these fronts. Ultimately, my conclusion is that there is just enough there to permit a fair trial of the issues raised. That conclusion is bolstered, albeit modestly, by the latest re-draft.
- That being my conclusion, it is enough to say this, I think. All these issues are matters to be assessed by reference to all the circumstances of the case. It is arguable that a person's attitude to another, what he thinks or feels about that person, and what he says about that person to friends on a private social occasion, can count as confidential information, even if the subject of the attitude, thoughts, feelings and statements is not a relative or friend but a business partner and the subject-matter is a business dispute. It is likewise arguable that a person's thoughts and feelings about others and their expression of such thoughts and feelings in a social and domestic context falls within the ambit of Article 8, even if the subject is not intrinsically personal and the subject-matter is business-related. The circumstances relied on in the Second Response are not plainly and obviously incapable of giving rise to a duty of confidence, or a reasonable expectation of privacy.
- As to Mr Candy's other conduct that night, this seems to me to be very much at the margins. I accept that it was "silly" behaviour on a private occasion. So was the conduct the subject of RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 (Ch), and Briggs J granted an injunction. But the information is not of comparable intimacy to the information that was the subject of that claim. Nor has Mr Candy alleged that the consequences of disclosing this information would include anything like the "grave risk" of serious damage to personal relationships that Briggs J was persuaded might result from the disclosure threatened in RocknRoll (see [36]). There is at least superficial attraction in Mr Price's submission that this is all far too trivial to deserve protection in either confidence or privacy. Nevertheless, in my judgment, subject always to the points made above, this claim also should be allowed to proceed for evaluation at a trial.
- I will return towards the end of this judgment to the consequences of these conclusions.
- I turn to a separate aspect of the proposed amendments to the privacy and confidentiality claims, namely the attempt further to expand the scope of those claims. As originally formulated, the draft amendments to the existing claims were confined to the "contents" of "the Document": see above. The first version of the draft claim in conspiracy included, however, the following allegations (sic, emphasis added):
"the First Defendant has acted in concert with the other Defendants (alternatively one or more of them) pursuant to an agreement, combination or understanding to disseminate the Document or its contents (as referred to in the, other similar documents and/or related information about the claimant, whether publicly or to targeted individuals."
- This looks like a garbled attempt to complain of the threatened or intended dissemination of something beyond the Document or its contents. It has eventually emerged that this is exactly what it was. A second, ungarbled version alleged an agreement, combination or understanding to disseminate "the Document or its contents (as described in the Confidential Schedule)." The material part of that Schedule, at that stage, was in the terms set out in paragraph [54] above. So it looked as though the attempt to broaden the claim had been dropped. But this turned out to be a muddle, too. The skeleton argument of Mr Sherborne and Mr Fulton said this:
"8. Mr Candy wishes to argue at trial that reports by any of the Defendants to the public at large or to third parties about the events in Ibiza of 12 June 2010 ought to be restrained by an injunction even if such reports would fall outside the scope of any privacy injunction.
…
31. D1-5's complaint about lack of particularity is limited to Mr Candy's right to protect the privacy of the contents of the video clips and to protect wider, allegedly private information about the events in question, whether or not recorded. "
- Mr Price submitted, by reference to these passages, that the claimant's purpose and intention was to alter and expand his claim, including the privacy and confidentiality claim, yet again. I doubted this, as there was at that stage no draft amendment to the privacy and confidentiality case that sought to achieve this. Mr Price turned out to be right. Mr Sherborne made this clear in submissions during the morning, and over the adjournment he and Mr Fulton produced a fresh draft pleading with amendments to the claims in confidence, privacy, and conspiracy. This draft has since been modified, but not in any way that is material for present purposes. As far as confidence and privacy are concerned, the proposal is to plead "for the avoidance of doubt" that the subject of Mr Candy's complaint is the Document its contents
"and/or information which it contains and/or related information about the Claimant's conduct on the occasion referred to in paragraph 2 above (whether or not recorded, and whether or not deleted) ("the related information"),"
- This simply will not do. Any amendment of substance must be formulated clearly and in good time before a hearing, to give the other party a fair opportunity to deal with it. This wording was not produced until after 2 ½ hours of what was meant to be 4 hour hearing. On any view, it represents a substantial shift in Mr Candy's case on privacy and confidentiality. It would take his claim beyond the parameters of the surviving parts of the Recording, and its contents, ie information contained in those parts. It would do so in two respects. First, the draft wording encompasses information that was recorded but deleted. Secondly, it encompasses information that was never recorded at all. That much is clear. It is however unclear what "related information" is supposed to mean. Mr Sherborne told me it was information "related" to that which is so far specified as the subject of complaint. That is not clear from the wording, which is grammatically complex and unacceptably vague. In addition, the current specification of the information to which the "related information" is related is unacceptably vague.
- There is another serious problem: how are the defendants or the Court to know what additional information they are being sued over, or what the Court is being asked to restrain them from disclosing? How are the defendants or the Court to to test whether information is "related information"? Mr and Mrs Holyoake say in their witness statements that they can remember certain information about the events of that night ("the Recalled Information") which is not embodied in the surviving parts of the Recording, and which may or may not have been recorded and then deleted in 2010. To that extent the subject-matter of the claim is identifiable and could be pleaded. An attempt has been made to do this in the latest draft. Otherwise, however, the information the subject of the expanded claim is not identifiable. The events took place over 7 years ago. So, it seems, did such deletion as occurred. It is impossible to specify what the claim is about, except "what I said and did that night, that is not already specified in my statement of case." I cannot see how an injunction could be framed in accordance with the cardinal requirement that the party affected has to know with certainty what he is or is not allowed to do (Toulson para 3-087-3-088, Times Newspapers Ltd. v MGN Ltd [1993] EMLR 443 at 448). Nor can I see how an injunction could be policed.
- For all these reasons, I refuse the application to amend in this form. It is made too late, and in too vague and broad-brush a form. It may be that a claim to restrain disclosure of the Recalled Information can be formulated and pursued. It may be that an injunction can be sought to restrain disclosure of information "to the same or similar effect" as that which is specified. My refusal of permission to make these amendments is without prejudice to a further application which Mr Candy may be advised to make along those lines. Any such application must however be clearly and properly formulated, on ample notice to the defendants. I cannot presently see how any broader claim could sensibly be maintained.
The conspiracy claims
- These claims cannot be permitted to go forward in their most recent formulation, for the reasons just given. Paragraph 7A of the draft Re-Amended PoC defines the scope of the claim using wording similar to that quoted at [69] above. The fact that the wording is not identical is a further reason for rejecting this application. The claim is too vague.
- There is another reason for refusing permission to amend in the form of this draft. The allegation in paragraph 7A.4 as it stands is as follows:
"The First Defendant and/or one or more of the other Defendants will in the future seek, pursuant to their earlier agreement, combination or understanding, to disseminate or publish the Document or its contents and/or the related information, and thereby cause substantial loss and damage or serious harm to the Claimant."
In a civil action for conspiracy damage is the gist of the action, and only pecuniary (financial) damage will do: Lonrho v Shell Petroleum [1982] AC 173, 188 (Lord Diplock). Mr Sherborne accepts this but responds that we are concerned with threatened not actual loss, and it is "easy to imagine" that financial loss could be sustained as a result of disclosure here. Perhaps that is so, with regard to the information about what Mr Candy said. That is a long way from obvious, when it comes to information about Mr Candy's "silly" conduct when heavily intoxicated. At any rate, it must be clearly and distinctly alleged, and it is not. It would seem from the argument on these applications, and such parts of the witness statements as I have been shown, that the only form of case open to Mr Candy in this respect is an inferential one. His own statement contains nothing that directly supports such an allegation. The basis for any inferential case would need to be set out, especially at this relatively late stage.
- Mr Price has urged me to dismiss this application outright, on two further grounds. First, that it fails to disclose any combined action within the meaning of the authorities in this area. He refers to Midland Bank v Green [1979] 1 Ch 496, 523-525 where (Oliver J) citing Quinn v Leathem [1901] AC 495, Sorrell v Smith [1925] AC 700, and Greenhalgh v Mallard [1947] 2 All ER 255, said that the damage must flow from "the unlawful acts done by each and all of the conspirators in pursuance of their joint design". Mr Price refers also to the Court of Appeal's decision, [1982] 1 Ch 529, affirming Oliver J. Lord Denning referred at p 539 to "concerted action taken by two or more persons".
- This, argues Mr Price, means that it cannot be enough to allege an act or acts performed by a single defendant, which is the allegation here. That is not combined or concerted action for this purpose, even if it is done pursuant to a prior agreement. That may or may not be so. Time has not permitted a thorough investigation of this issue at this hearing. But even if it is correct, the case stated in paragraph 7A.4 includes an allegation that the first defendant and others of the defendants will seek to disseminate the information which is the subject of the claim. I therefore reject this criticism as a ground for refusing permission to amend.
- Secondly, Mr Price submits that there is no or no sufficiently coherent statement of a case that the defendants had an intention to injure Mr Candy. The alleged purpose of causing "harm" is too vaguely defined, and does not measure up to the requirements of the tort. The "harm" which the alleged conspirators are said to have sought to cause is to "exert improper pressure" on Mr Candy to dissuade him from taking action against Mr Holyoake. It appears, says Mr Price, that Mr Candy's case is in reality one of intimidation or conspiracy to intimidate, which is a tort unknown to the law or at least very odd. Intimidation would not be made out in the absence of submission to the threat, which is not alleged here. These submissions have considerable persuasive force, but it seems to me that they are best suited for resolution at trial. The tort of conspiracy, in both its forms, is notoriously anomalous and problematic. It is better to resolve such knotty issues on the basis of solid findings of fact, to the extent that they then arise. So I would not refuse permission on these grounds.
- In summary, the conspiracy claims as presently formulated cannot be permitted to go forward but if he considers that he can overcome the two areas of difficulty that I have identified, Mr Candy may re-apply.
Overall Conclusions
- The Second Response did not comply with my order of 2 March 2017. To that extent the defendants are correct. But it would be disproportionate to strike out the claim and dismiss the action. The claims in confidentiality and privacy contained in the Amended PoC and Second Response were and remain flawed in a number of ways. The draft amendments do not fully resolve the problems, in any of the versions so far produced. But they do go some way towards doing so, and it is possible to identify the steps that need to be taken to put things right and get the case in fit shape for a trial.
- The right course is to refuse permission to amend these claims in the form now put forward, and to grant the defendant's alternative application by making an "unless" order that requires the preparation of a further set of draft documents compliant with the order of 2 March 2017 and this judgment. These may be consented to by the defendants. If not, then there must be a fresh application to me, if available. Any permission will be on terms that the defendants have permission to make consequential amendments and to serve further witness statements if so advised.
- The last-minute attempt to expand the confidence and privacy claims further, beyond the Document and its contents is procedurally inept, and inadequately pleaded. I refuse permission to make those amendments, but to the extent I have indicated it is open to Mr Candy to make a further attempt, if so advised.
- Subject to the observations made at the very end of his judgment, and submissions from Counsel, the form of order I propose to make is to this effect:
i) The Second Response is struck out.
ii) The claimant must within [14] days prepare and serve draft amended or re-amended statements of his case compliant with the Order of 2 March 2017 and the judgment of the Court and file an application notice seeking permission for such amendments.
iii) Unless the claimant complies with (ii) above, the PoC will be struck out and judgment entered for the defendants.
iv) If the claimant complies with (ii) above the defendants shall within [14] days inform the claimant and the court whether they consent to the proposed amendments and, if they do not, state briefly their grounds of opposition.
v) If the application is opposed it will be listed for hearing on the first open date after the defendant's statement under (iv), reserved to me if available.
- As to the draft amendments to plead conspiracy at 7A to 7C of the Amended PoC and paragraph 14 of the Confidential Schedule, these as they stand are too vague and fail to disclose reasonable causes of action. But the flaws in these parts of the pleading, or some of them, may be remediable. I refuse permission to amend in the form proposed, but without prejudice to a fresh application. Any fresh draft must be provided, and any fresh application for permission to amend must be made, in conjunction with the draft amendment of the privacy and confidentiality claims.
- A suitable form of order will need to be drawn up, and appropriate costs orders must be made, as to which I will hear argument or, if the parties agree, receive written submissions. It seems undeniable that on this occasion the defendants are substantially the victors.
The claims in respect of the Document
- In the course of the hearing I raised with Counsel two other questions: first, whether judgment should be entered for Mr Candy on his claims in respect of the Document against Mr and Mrs Holyoake, given the admissions of liability made by them in paragraph 2A of the Amended Defence. I had in mind CPR 14.3. No application has been made, however. I leave it to Mr Candy to decide whether to make one. It seems to me nevertheless that any judgment that might be entered pursuant to the unless order outlined above would have to exclude those claims. That is consistent with Mr Price's own approach to his clients' striking out application.
- Secondly, I suggested that if the claims were to proceed generally it might be appropriate to stay the claims against the fourth and fifth defendants, in the light of their offers to abide the outcome of the claims against the first three defendants. The position of the third defendant was not clear at the hearing. But I have now been shown a letter of May 2017 in which he adopts the position taken by the fourth and fifth defendants in the Amended Defence. Mr Sherborne resisted the idea of a stay, on the basis that his client has claims against these defendants that go beyond a mere injunction. This issue was raised by me on short notice, and it would be dangerous to resolve it summarily. It can be revisited. But in any event the unless order would need to reflect this aspect of the case for these defendants.
