Mr Justice Warby :
Introduction
- This claim is another emanation of a serious falling-out between two former friends, Nick Candy and Mark Holyoake. They have known each other since University, but in 2012 they had a business dispute. That dispute has generated a claim by Mr Holyoake against Mr Candy and others for damages of over £130m. That claim, brought in the Chancery Division ("the Chancery Proceedings"), is being tried by Nugee J at the moment. The dispute has also generated a data protection claim by Mr Holyoake, with which I have dealt between November 2016 and February 2017: see [2017] EWHC 52 (QB).
- In this action Mr Candy claims remedies for what he alleges are completed or threatened wrongs in the form of breach of confidence, misuse of private information, and breach of the Data Protection Act 1998 ("DPA") against five defendants: Mr Holyoake, his wife Emma, and three business associates of Mr Holyoake, Messrs Wells, Pym, and Lovering. The claim arises from events at Mr Holyoake's home in Ibiza in the summer of 2010. On 12 June the Candys, the Holyoakes, and two companions had been out for the evening in town. On their return Mr Candy, heavily intoxicated, said and did some embarrassing things. Mrs Holyoake recorded these events on her phone. The claim relates to that recording ("the Recording"). I shall use that global term for convenience although there is evidence, and it may well be, that there were several individual recordings.
- The day after the Recording was made Mr Candy made requests for its deletion, or the deletion of parts of it. Parts were deleted and parts were retained. In November 2014 Mr Holyoake sent Mr Candy an email which Mr Candy characterizes as a threat to publish the contents of the Recording to the world at large. The intention, he alleges, was to intimidate him in the context of the business dispute which had by then developed. Mr Candy's case is that this intention was shared by all five defendants, with a scheme to deploy the video against him being co-ordinated and discussed between the Holyoakes and each of Messrs Wells, Pym, and Lovering.
- The claim form in this action was issued on 16 December 2015. The claim was against the first three defendants, Mr and Mrs Holyoake and Mr Wells. These three ("the Initial Defendants") have filed a Defence. They admit the creation of the Recording of Mr Candy's drunken behavior, and that he had certain reasonable expectations as to the privacy and confidentiality of the Recording. They admit its retention, and its disclosure by Mr Holyoake to Mr Wells. But they deny having misused, or threatened to misuse it. And they deny any breach of duty under the DPA.
- The claim against the Initial Defendants has proceeded to the stage of disclosure and inspection of documents. They have made a Part 18 Request for further information about Mr Candy's case, the answer to which they maintain is inadequate. The fourth and fifth defendants, Messrs Pym and Lovering, were added on 4 November 2016. I shall call them the Additional Defendants. Steps were taken to serve proceedings on them, which Mr Candy maintains were effective. The Additional Defendants did not acknowledge service of the proceedings.
Issues
- There are three issues before the Court at this hearing:-
(1) whether the Defences of the Initial Defendants should be struck out and judgment be entered for Mr Candy on the grounds that these defendants have been guilty of serious breaches of their disclosure obligations;
(2) whether judgment in default should be entered against the Additional Defendants;
(3) if the claim proceeds, whether Mr Candy's Response to the Part 18 Request should be struck out, with him being required to provide a further answer.
Hearing in private, judgment in public
- On the application of Mr Candy, a substantial part of the evidence and argument have been dealt with at a hearing in private. That is because I was persuaded that it was to that extent strictly necessary to sit in private, excluding the press and public. The order for a private hearing was made pursuant to CPR 39.2(2)(a), (c) and (g) on the basis that the claim concerns information that is alleged to be private and/or confidential and it is necessary to sit in private to avoid prejudice to the rights asserted by the claimant. The nature of the arguments is such that they could not practicably have been conducted in public, even with reporting restrictions.
- The Court and the lawyers concerned in this case are well aware of the importance of open justice, and mindful of the principles set out in the Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003 [9]-[15], which are applicable equally here. My order in this case was made with those guiding principles in mind, and only after I had given a public ruling in which I explained the nature of the claim, the issues before the court, and the reasons for sitting in private. The order was made on the basis that the Particulars of Claim (though not their Confidential Schedule) are publicly accessible on the Court file and that – as Mr Sherborne acknowledged – I would give judgment in public, as I now do.
- Some of what I shall say in this judgment will go beyond what is available to the public via the publicly accessible Particulars of Claim, but not in my view to an extent that arguably violates a right of privacy or confidentiality. Orders have previously, and properly, been made restricting access to parts of the court file, including not only the Confidential Schedule but also the Defence. But, as will be spelled out in the formal order made as a result of this hearing, reporting of this public judgment would not be a breach of those orders.
- There are however some aspects of my reasoning that need to be set out in a private document, and so this judgment contains a private Annex containing that relatively limited additional material. That Annex will not be publicly available, and reporting of it will be prohibited, unless and until some different order is made.
Conclusions
- The Initial Defendants have, as they admit, been guilty of serious and significant breaches of their duties of disclosure. The overriding objective requires that there should be sanctions for such breaches, as the Initial Defendants also concede. But I am not persuaded that the appropriate sanction is to strike out the Defences, or to grant Mr Candy judgment on his claims without a trial. These defendants' conduct of their disclosure is unsatisfactory, and certainly raises serious questions about their conduct, and about the merits of their pleaded case. It is not established that there was a good reason for the failure. But nor is it proved that there was a bad reason. I do not consider that in all the circumstances it would be a just and proportionate response to the defendants' default to preclude them from defending the claim.
- The appropriate sanctions, at this stage, are these: (1) the payment of (a) the costs of the abortive, initial round of disclosure; (b) the costs of Mr Candy's applications for the amendment of the Particulars of Claim and Schedule, joinder of parties, and specific disclosure; (2) an appropriate costs order in respect of Mr Candy's present application to strike out. It is my clear conclusion that the costs at (1) should be paid on the indemnity basis. It is my provisional view, subject to argument on behalf of the Initial Defendants, that they should pay at least the bulk of the costs at (2). If further sanctions are appropriate they will have to be the subject of separate applications and rulings.
- The case should proceed to trial without undue delay, according to a timetable including provision for: (a) service by Mr Candy of Further Information about his case; (b) service by the Initial Defendants of an Amended Defence; (c) the further progress of the claims against the Additional Defendants, assuming those claims proceed; (d) the service of witness statements, and other procedural steps necessary to get the case trial-ready.
- The main reasons for these conclusions are, in summary, these:
(1) Striking out a case is the ultimate sanction, which is only appropriate in the most serious of cases. It involves, on the face of things, a deprivation of the Convention right to a fair trial.
(2) It is not suggested that the admitted defaults have made a fair trial impossible in this case.
(3) I am not persuaded that I should conclude at this stage, without cross-examination, that the defendants' failures are evidence of a wish to ensure there is no fair trial, or that they amounted to deliberate suppression of documents, as alleged by Mr Candy. Nor do I see any other sufficient ground for concluding that the entry of judgment on the merits is the right response to these procedural failures.
(4) I do not think a trial would be pointless, as argued by Mr Sherborne. There are triable issues as to whether the defendants acted wrongfully. I accept Mr Price's submission that there would remain a substantial argument to be had, even if I granted judgment on liability, as to what form of judgment can properly be entered, given the nature of the case and the state of the pleaded case for Mr Candy. I accept Mr Price's submission that greater clarity is required in the statements of case. The factual issues are, however, very narrow. A trial would be relatively short, a matter of 2-3 days. The parties have substantial means, and the balance of power is not unequal.
(5) Mr Candy's factual case about the defendants' disclosure amounts to an allegation of contempt of court, and it is open to him to seek permission to pursue such proceedings which could, in principle, be heard concurrently with the trial. If any form of punishment is appropriate for what the Initial Defendants have done, or failed to do, it can be imposed by those means.
(6) As for the costs orders, these reflect the admitted faults of the defendant and the gravity of their failures, which are outside the norm. The provisional view on the costs of the strike-out application reflects the fact that these defendants did not concede until the hearing that any substantial sanction ought to be imposed.
- It is accepted by Mr Sherborne, on behalf of Mr Candy, that if my conclusions are to this effect then the action should proceed in respect of the Additional Defendants, whatever the merits of the application for default judgment. Those defendants have now accepted service of proceedings. It is not suggested that they have no realistic prospect of making out a defence on the merits, and realistically it is accepted that it would be wrong to allow the claim to proceed against the Initial Defendants, but not against the Additional Defendants. In the circumstances, the question of whether the application for default judgment was justified or not is a matter that goes only to costs.
- A more detailed explanation of the facts, the applications, and my reasoning follows; but given that I am leaving open the issue of how the disclosure defaults came about it is desirable that I should say no more about the merits of that issue than is strictly necessary.
Factual and procedural background
Procedural chronology
- Having paused my account of the factual background with Mr Holyoake's allegedly threatening email of 1 November 2014, the dates and events thereafter which are most important for present purposes can be quite shortly summarised.
(1) On 12 August 2015 Mr Holyoake and a company owned by him called Hotblack Holdings Limited issued the Chancery Proceedings against Mr Candy, his brother Christian, and others. The proceedings were served in November 2015.
(2) On 23 November 2015 a letter of claim was sent in relation to the Recording. The claim form in this action was issued the following month. 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. The "Document" was defined in the Particulars and in the Confidential Annex to the Particulars, in a way that I shall come to.
(3) On 15 February 2016 the Initial Defendants filed their Defence, the contents of which I have already summarised. Mr Price QC puts it more pithily on their behalf: "The Defence is simply that Ds had done nothing in 5 ½ years to warrant being sued." There is a little more to it than that, as I shall explain.
(4) On 12 August 2016 the Initial Defendants gave standard disclosure, pursuant to a consent order of 9 August.
(5) At some point before 27 September 2016, upon inspection of documents disclosed in the Chancery action, Mr Candy's lawyers identified some documents of relevance to the present action ("the Chancery Disclosure"). The matter was raised with Mr Holyoake's lawyers. In due course an application was made for permission to use the Chancery Disclosure in this action, which was eventually unopposed.
(6) On 26 September 2016, before being notified of what the claimant's solicitors had found, the defendants made an offer. Carter-Ruck wrote:
"[D1] 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."
There was no reply.
(7) On 17 October 2016 application was made by Mr Candy for permission to amend his claim against the Initial Defendants, the joinder of the Additional Defendants, and specific disclosure.
(8) On 28 October 2016 the Initial Defendants served their Part 18 Request for Information about Mr Candy's case.
(9) On 4 November 2016 I made an order by consent granting the applications of Mr Candy for permission to amend, joinder of the Additional Defendants, and specific disclosure. The action had been fixed for trial on 23-25 November 2016. As a result of the other orders, that trial fixture was vacated. I reserved the costs of the applications.
(10) On 9 November 2016 the Amended statements of case were delivered by Fedex to the Additional Defendants at addresses which they had given in witness statements filed in the Chancery Proceedings.
(11) On 11 November 2016 Mr Candy served his response to the Part 18 Request.
(12) On 17 November 2016 the Amended Particulars of Claim were delivered again, with corrected Statement of Truth.
(13) On 25 November 2016 the Initial Defendants (a) gave supplemental disclosure pursuant to the consent order of 4 November; and (b) applied for orders striking out Mr Candy's Part 18 Response and requiring fresh answers.
(14) On 14 December 2016 Mr Candy filed his present applications to strike out, and for default judgment.
(15) On 6 February 2017 the trial of the Chancery Proceedings began, before Nugee J. On 10 February 2017 the Judge directed that matters relating to the recording should be heard in private. Mr Holyoake has given evidence about the events that were recorded in the Recording, and he was cross-examined about that and related emails in private on Monday 20 February 2017.
The pleaded cases
- It is common ground, now, that 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')."
The Schedule gives an account of the creation of the Recording and refers to some of the underlying information.
- The Particulars of Claim allege that:-
"The Document is private and confidential and/or falls within the scope of the Claimant's private life under Article 8 of the European Convention on Human Rights; alternatively, the Claimant had a reasonable expectation that the Document is private and would remain so."
Under the heading "The Defendants' Unlawful Acts" the following allegations of breach of confidence or misuse of private information are made:
"… the Defendants have acted wrongfully, without the Claimant's consent, and in breach of confidence or have misused his private information as follows:
5.1 the First and Second Defendant have retained or kept the Document despite the Claimant asking them to delete the same and them promising to do so;
5.2 the First and/or Second Defendant have disclosed and/or provided the Document to the Third, Fourth and Fifth Defendants;
5.3 the Third, Fourth and Fifth Defendants have retained or kept the Document;"
- The data protection claim is based on the proposition (at paragraph 7.1) that "The Document constitutes personal data within the meaning of section 1 of the Act" and alleges (at paragraph 7.6) that "By reason of the unlawful acts set out in paragraph 5 above, the Defendants have each acted in breach of their respective duties to comply with the data protection principles, in that the data was not processed fairly or lawfully or in accordance with the Claimant's rights as data subjects". The emphasis in both these quotations is mine.
- The claim for an injunction alleges that unless restrained the the Defendants "will continue to retain, process and/or disseminate the Document". The claims for information at paragraphs 7.7 and 9 seeks disclosure of "the identity of each any every person to whom they have shown or provided the Document or copies thereof", how when and in what manner this was done, and where and in what format they "hold or have retained the Document and any copies thereof".
- The Defence responds to the claim on the footing that, as it is put in paragraph 2 "…The subject-matter of the claim is a digital film, not any information set out or contained in the Confidential Schedule…"
- Under the heading "The digital film clips", the Defence goes on to give an account of what happened on the night of 12 June, the circumstances in which the Recording was made, discussion the following day about its deletion, and what was done in that regard. At paragraph 6 the Defence states that the Defendants do not plead further "regarding the content of the digital film", the reason given being 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…"
- In the next section of the Defence, headed "The alleged privacy and confidentiality of the digital film clips" the following appears:
"8. … The Defendants do not admit that all comments made by the Claimant…are per se confidential or private: clearly they are not. As stated above, nothing in particular concerning the content of such comments is alleged in the Particulars of Claim to be either private or confidential."
- The pleaded response of the Initial Defendants to the allegations of misuse or threatened misuse of the Recording contains these points:
"11. The first Defendant admits having disclosed the digital film to the third Defendant on 28th October 2014. He sent it to him, as a confidential and trusted business associate, for safekeeping as he was concerned… by the threats made to him and his family. The first Defendant asked the third Defendant to hold on to the recording, not to disclose it and to keep it in confidence. The third Defendant has done so."
12. The first Defendant intends (unless restrained by this court) to permit his solicitors and counsel instructed in… against (among others) the Claimant, to use the digital film, in particular for cross-examination of the Claimant. His solicitors and leading counsel in that action wish to be able to use it for cross-examination at the trial…The relevance of the digital film is that it demonstrates the true character of the Claimant…which increases the likelihood of his having behaved in the manner alleged in the Chancery action…
15. The second Defendant has done nothing at all with the digital film, except retain it. To be clear, she did so, not because she was shocked and offended by the Claimant's behaviour (although she was)…but because she forgot about it…
16. The third Defendant has done nothing at all with the digital film, except to keep it and two back up copies of it, in secure locations, as he was asked to do.
17. Despite having had the digital film for over 5 years, the first Defendant has never disclosed it publicly, and has no intention of doing so. Nor has he threatened to do so. There is simply no basis for the grant of an injunction against him…
18. …The Claimant has by his decision not to pursue the matter, and by his delay, disentitled himself to equitable relief (even if otherwise entitled to it, as he is not.)
19. …there was nothing deliberate about the second Defendant's retention of the digital film… she just forgot about it… There is no basis for the allegation…that the Defendants threaten to use the digital film wrongfully or unlawfully… They have at no time given any reason to suppose that they would do anything with it, other than entirely lawfully and properly"
The defendants' disclosure
- The defendants' initial disclosure of August 2016 was relatively limited. It included four digital film clips, four emails from 7 May, 28 October and 1 November 2014, and some inter partes correspondence from January to June 2015. The Chancery Disclosure added 11 relevant documents, comprising two further digital film clips and 9 emails, variously dated 18 December 2013, 18 January 2014 and 6 and 7 May 2014. These documents added to the evidential picture concerning the intended use or disclosure of the Recording. They also disclosed, or appeared to, that there had been disclosure of the Recording to Messrs Pym and Lovering, as well as to Mr Wells. It was in response to these revelations that Mr Candy made his applications for the amendment of his Particulars of Claim and its Schedule, joinder of the Additional Defendants, and specific disclosure. The Initial Defendants consented to such orders.
- The defendants' supplemental disclosure added four further film clips from 12 June 2010, bringing the total to 10. It also added further email correspondence between the defendants, from June 2010 (1 item), 2012 (March and December, 7 items), and 2014 (January, February, April, May, October and November, 17 items)[1]. Of the 17 items from 2014, 10 dated from 6 or 7 May and 4 from 27 October to 4 November of that year.
The application to strike out
Procedural and factual basis
- The application is made pursuant to CPR 3.4(2)(c), which permits the court to strike out a statement of case if (among other circumstances) a party has failed to comply with a rule or order of the court. The application notice identifies the basis for the application: "the First to Third Defendants breached their disclosure obligations". The evidence of Mr Rechtshaffen, and the submissions of Counsel, go well beyond this. A fair encapsulation of the case for Mr Candy is to be found in paragraph 8 of Mr Rechsthaffen's third witness statement where he asserts that "the First to Third Defendants' conspicuous failure to disclose [the emails] is a flagrant breach of their obligations, wholly inexcusable and not susceptible of any reasonable explanation." A number of additional points are made in support of the application, among which is the assertion that without the newly disclosed documents "The Court would … have been asked to try the case on a materially false basis". Other unrelated aspects of the procedural history of the case are mentioned, and said to cast an unfavourable light on the conduct of the Initial Defendants.
Evidence
- Mr Candy's case about the failures of the defendants' disclosure is advanced on the basis of analysis of, and inferences from, the disclosure given and the way in which it emerged. The principal source of such evidence is the statement of Mr Rechtschaffen, served with the application in November 2016. The Initial Defendants filed no evidence in response to the application for specific disclosure. They eventually responded to the strike out application, by way of witness statements served as recently as 10 February 2017. In addition to a statement from each of the Initial Defendants, there is a statement from Mr Tait of the defendants' solicitors, Carter-Ruck.
- Each of the defendants denies any deliberate non-disclosure. Each gives an account of what was done to conduct the searches that formed the basis of the initial disclosure, and seeks to explain the defaults. Two main explanations are given. As to the undisclosed film clips, it is said that the defendants were acting on legal advice. They do not suggest that advice was right, but they rely on it as an excuse or explanation for their non-disclosure. They have not disclosed the advice. As to the emails, the defendants have no explanation as such. It is however suggested that there may have been some kind of IT failure in the way the searches were carried out.
Principles
- There is little, if any, dispute as to the approach the court should take to an application of the present kind. The Court has a discretion, which must be exercised in accordance with the overriding objective. 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.
- Some further relevant points can be drawn from the authorities. Some speak of abuse of process, and they all speak about striking out claims rather than defences, but I treat them as applicable also to an application of the present kind.
(1) "The language of the CPR supports the existence of a jurisdiction to strike a claim out for abuse of process even where to do so would defeat a substantive claim. The express words of CPR r 3.4(2)(b) give the court power to strike out a statement of case on the ground that it is an abuse of the court's process. … There is nothing in the rule itself to qualify the power. It does not limit the time when an application for such an order must be made. Nor does it restrict the circumstances in which it can be made. The only restriction is that contained in CPR rr 1.1 and 1.2 that the court must decide cases in accordance with the overriding objective, which is to determine cases justly": Summers [41].
(2) "Under the CPR the court has a wide discretion as to how its powers should be exercised: see e g Biguzzi v Rank Leisure plc [1999] 1 WLR 1926. So the position is that the court has the power to strike out a statement of case for abuse of process but at the same time has a wide discretion as to which of its many powers to exercise": Summers [42].
(3) "One of the objects to be achieved by striking out a claim is to stop the proceedings and prevent the further waste of precious resources on proceedings which the claimant has forfeited the right to have determined. …". It is therefore important, if possible, to make an application to strike out at an early stage in order to preserve court resources and save costs: Masood v Zahoor (Practice Note) [2010] 1 WLR 746 [73]-[74], approved in Summers [38-39] and [62].
(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.
(5) Under the CPR, before the most recent amendments, it was "a general principle … that the object of the rules as to discovery is to secure the fair trial of the action in accordance with the due process of the court; and that, accordingly, a party is not to be deprived of his right to a proper trial as a penalty for disobedience of those rules – even if such disobedience amounts to contempt for or defiance of the court – if that object is ultimately secured, by (for example) the late production of a document which has been withheld": Arrow Nominees Ltd v Blackledge [2001] BCC 591 [54] (Chadwick LJ) approving Logicrose Ltd v Southend United Football Club Ltd (The Times, 5 March 1988) (Millett J) (and see also Arrow Nominees [72] (Ward LJ)).
(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].
- In Summers the Supreme Court considered what sanctions other than the striking out of a claim might be appropriate, depending on the circumstances, by way of deterrence. At [52] – [61] it identified several, including the difficulties a dishonest party is likely to have in persuading a trial judge to accept his or her evidence; costs sanctions; and proceedings for contempt. On the issue of contempt proceedings, the Court approved the general approach proposed by the Divisional Court in South Wales Fire and Rescue Service v Smith [2011] EWHC 1749 (Admin) and at [59] rejected a submission that this was impractical, saying:
"We, however, see no difficulty in proceedings by way of contempt in such cases, provided of course that the relevant facts can be proved. It was submitted in the course of argument that there might be difficulties in inviting the trial judge to hear applications for permission to bring proceedings for contempt. However, in the absence of special circumstances, we cannot see any difficulty in the trial judge hearing both the application for permission and, if permission is granted, the proceedings themselves. On the contrary, it seems to us that the trial judge is likely to be best placed to hear both. Such an approach is likely to be both the most economical and the most just way to proceed."
Discussion
- A key consideration is whether it has been shown that the acknowledged deficiencies in the defendants' disclosure were the result of deliberate suppression. That, if it were established, would plainly be a powerful factor in the exercise of discretion. The standard of proof is the ordinary civil standard, but the gravity of the allegation means that the court should take account to the extent appropriate in the circumstances, the improbability of such serious misconduct. Also relevant is the fact that I am invited to reach these serious conclusions on the basis of the documents alone, without hearing those accused under cross-examination. There are circumstances in which a court can properly reject an explanation given in a witness statement, without cross-examination of the witness. That would be so if the explanation offered lacked any reality, for instance because it was inherently improbable or because it was inconsistent with a document of established authenticity. It is however a relatively unusual case in which the court is justified in taking that course. I do not consider this to be such a case.
- It is clear that the specific disclosure contains documents which lend material support to Mr Candy's case that in May and November 2014 the defendants planned and discussed the hostile use against him of the Recordings, or clips from them. The documents which do that are emails. Some of those emails are at least arguably inconsistent with parts of the defendants' pleaded cases, as set out above. But the film clips do not seem to assist the claimant's case to any great degree.
- It is not, without more, wholly incredible that the defendants were given and accepted advice that the additional film clips were not disclosable. It does seem odd advice, but the fact that nobody suggests it was correct does not make it legitimate to find against the defendants without a hearing on the issue of whether it was given. Nor is it clear that the defendants' accounts of their electronic searches must be rejected are untrue or in some way deceptive.
- It is said by them that their search terms may not have been comprehensive enough, and/or that search systems on personal email accounts are not as effective as those on a professional eDisclosure platform, used by the experts who are operating the platform being used in the Chancery Proceedings. True, there is no corroboration of these suppositions, from experts in the field. But the claimants have not sought to deal with the issue evidentially, either. They have preferred to pour scorn on the evidence. That stance might in due course prove to be justified, but its validity has not been sufficiently made out on this interim application. The defendants' argument that the conspiracy alleged by Mr Candy is an improbable one, given that some of the emails were disclosed in the Chancery Proceedings, has some persuasive value for present purposes. So does the facts that the defendants gave specific disclosure of clips and emails, the existence of which was not obvious from the Chancery Disclosure. One of the email exchanges, dating from 14 June 2010, was sent to and by Holly Valance (now Mrs Candy) and copied to Mr Candy, which makes it an unlikely candidate for deliberate suppression. I have not heard any compelling argument that the defendants' disclosure discloses any clear pattern, indicative of deliberate suppression.
- Adopting the Denton three part test, the breaches were serious and significant; the explanations given are not "good" ones, because they do involve serious oversights so far as the emails are concerned - but the explanations are innocent rather than guilty ones, which I do not feel justified in rejecting on this application; and having regard to all the circumstances, the striking out and the entry of judgment without a trial would represent an excessive, disproportionate, and inappropriate sanction. That is all the more so when I consider, as I must, that this is not a case where the defendants are seeking relief from a sanction that has already been justifiably imposed. The question is the logically prior one of whether a sanction should be granted
- I have had regard to the procedural background, relied on by Mr Candy. Circumstances which I count as important in reaching my conclusion are that the claimant's own response to the disclosure failings that first appeared was to seek specific disclosure, and not to strike out; and that the more substantial failings of disclosure that emerged upon specific disclosure appear to have been (at least substantially) rectified. In addition, as already noted, the action can be fairly tried; the issues raised fall within a relatively narrow compass; the case is quite close to being ready for trial; there is equality of arms; and there are alternative sanctions available for the breaches complained of, which are more appropriate. As also indicated above, I place weight on the facts that the claimant's case is not, in my judgment, wholly clear, and on any proper view the question of remedies justifies serious and sustained argument: see see the next section of this judgment.
The Part 18 Request
- On 4 November 2016 I made an order by consent for this request to be answered. 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.
- Those all appear to me to be legitimate requests, in principle. I have cited extensively from the Particulars of Claim, and parts of the Schedule, above. The passages cited 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. 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. I believe Mr Candy's statements of case make just two references to the "contents" of "the Document": paragraph 3 of the Schedule asserts that "the Document and its contents are self-evidently private and confidential information about the Claimant", and the prayer for relief seeks remedies in respect of "the Document or its contents". 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. Such ambiguity justifies the Request.
- It has been clear for a considerable while that it was the defendants' understanding, or at least their position, that the claim related only to the Recording. That position was not only set out in the Defence, it was also reiterated and explained by the defendants' solicitors in their letter of 26 September 2016. I note that the claimant did not respond to the way the Defence was pleaded by amending his claim, serving a Reply or taking any other formal step to recast or explain his case. The Amended Particulars of Claim were prepared and served after that, and nothing was done to address the point.
- Mr Candy's Response to the Part 18 Request contains its own preamble, which takes issue with the premise on which the requests are made and asserts that the requests are neither necessary nor proportionate. The Preamble does however assert 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 Response goes on to say at (1) that the claimant's case "As is plainly stated in the Amended Particulars of Claim and the Confidential Schedule" that "the contents of the Document" are private and confidential and that this "includes the underlying events which were recorded or captured on film."
- The Further Information also makes clear that the claim now relates to the whole of the information about the underlying events which was contained in the original Recording, and not just information about the events that underlay the surviving clips; the claim goes beyond the "comments" that form part of that information. On the face of it, the claim does not relate to any information about any events on 12 June 2010 that were not recorded.
- For the reasons I have given, I would not accept that the case for Mr Candy "has always been" thus, or that this is "plainly stated" in the main statements of case. But that is not the main point, for present purposes. The Further Information is 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. But 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).
- So far as I can make out from the Response and Mr Sherborne's argument, the case for Mr Candy is to this effect. The cloak of privacy and confidentiality covers all information about anything that (a) happened at Mr Holyoake's Ibiza home on the evening of 12 June 2012 and (b) was captured on the original Recording; this includes comments about a particular dispute, referred to in the Request, but is not limited to those comments; it is not necessary as a matter of law for Mr Candy to itemise the information he seeks to protect; and the circumstances relied on to show that the information was private and confidential are sufficiently pleaded. Mr Sherborne correctly points out that the test of what is private is a circumstantial and multi-faceted. He submits that it is artificial and wrong to draw a distinction between privacy and confidentiality.
- 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.
- Mr Sherborne's own pleading reflects this, when it cites "the nature of their contents" as one of the circumstances that "are already pleaded". The noun to which the word "their" relates is rather lost in this rather long sentence; but it seems from the context that the reference must be to "the contents" of the events or comments that summer night that were recorded by Mrs Holyoake. It is not correct, in my judgment, to assert that "the nature of the contents" of the events or comments has already been fully or sufficiently pleaded. There can be cases in which it is unreasonable and oppressive, or unnecessary to require a claimant to itemise all the information for which protection is claimed. There is nothing here to lead to that conclusion. This was a short series of events, captured on a Recording of fairly short duration. The defendants' position is that if a claim in breach of confidence had been pleaded in respect of all the information about the underlying events that was recorded in "the Document" then they would have advanced defences based on triviality and, in the case of the "comments", public interest. Their case is that any information about the "comments" referred to cannot be the subject of a claim for misuse of private information by Mr Candy because it "has nothing whatever to do with his private life", and cannot be the subject of a successful claim in breach of confidence. They would run a defence of public interest, they say.
- 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.
- 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 application for default judgment
- I need add nothing of substance to what I have already said about this. The issue is whether the steps taken to bring the proceedings to the attention of the Additional Defendants amounted to service within the CPR. The Additional Defendants have given evidence on the issue, and the skeleton arguments – especially that of the defendants - contain extensive argument about it. But there has been little oral argument. I have formed no view about the inherent merits of the application. Those can be assessed, to the extent necessary, in the course of such argument on costs as remains in the light of the conclusions I have already set out.
Directions
- I have indicated the minimum that is required. The need for any further directions can be considered after judgment.
Private Annex
- The private annex to this judgment will remain private and confidential until after judgment on the claim or further order in the meantime. The formal order to be drawn up will record the precise terms of this restriction.
