When Mr Patel complained to Unite about the postings, Unite took the forum offline and released a statement that the allegations against Mr Patel were unfounded; but Unite failed to respond to Mr Patel’s request for the identification of those responsible.

The BASSA website was subject to terms of use, which warned users that their personal data might be disclosed subject to data protection and privacy law.

Mr Patel successfully applied to the High Court for a “Norwich Pharmacal” order, which required Unite to provide the identities, addresses and Internet Protocol addresses of the users responsible. Instead, Unite provided an expert’s report to show that the information requested had in fact been deleted. Mr Patel and his solicitors pushed Unite to make further efforts to recover the information, without success. Mr Patel therefore sought a further Norwich Pharmacal order for an independent expert to be given access to Unite’s database on the grounds that the continued failure to provide the information must be, at best, as a result of incompetence or technical ignorance. Unite objected to a further order on data protection grounds.

The High Court ruled that Unite had not provided sufficient evidence that it had carried out the reasonable search required by the first Norwich Pharmacal order, and Unite had not shown that it had actually followed up the information provided by Mr Patel in order to carry out that search. The High Court noted that the additional order that Mr Patel was asking for was intrusive, but that it was proportionate and necessary to give the order so that Unite would comply with Mr Patel’s information request. The High Court considered the fact that the website terms of use warned users that Unite might disclose a user’s identity, subject to data protection and privacy law, and that, without the order, those responsible would not be identified. Whilst the order was given by the High Court, it was strictly limited to an expert appointed jointly by both parties and only to the disclosure of the information which would identify those responsible, or which explained why identification was not possible.

The Information Tribunal has disagreed with the Information Commissioner’s ruling, and ruled that, if the email still existed, it was still “held” and therefore the University should disclose the email or issue a valid refusal notice.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Whilst this ruling relates to the Environmental Information Regulations, it is based on the same principles as disclosures under the Freedom of Information Act 2000 and is an interesting precedent.

Viagogo – the website – had objected to the hand over, saying that to do so would be disproportionate and infringe its users’ data protection rights. The Court of Appeal disagreed. The rights had to be balanced and the RFU was entitled to know about who was infringing its contract terms. The Court of Appeal therefore ruled that it was right to grant the RFU a “Norwich Pharmacal Order” against Viagogo to reveal the data. Whether or not the England rugby body used that data to take action against the sellers or the people who had provided the tickets to the sellers was irrelevant to the ruling.

At first instance, the Judge decided that the employees should be identified by function although not by name as he thought that would maintain the anonymity of the individuals and at the same time ensuring all relevant information was available to the court.  However, it was now common ground that it would not maintain anonymity.  The claimant Mr Shah and his wife appealed against the Judge’s decision not to reveal the employees’ names and the bank cross appealed against the Judge’s decision to make standard disclosure of the names to be revealed in the first place.

The claimants claim was for damages of over $300 million against the defendant bank arising from the defendant’s delay in executing four transactions between September 2006 and February 2007. In January 2009, summary judgment was granted for the bank, but the claimants successfully appealed and the Court of Appeal held that it was for the bank to prove that it held the suspicion that it alleged.

As part of its disclosure exercise to prove that it held the suspicion, the bank had disclosed a series of memos, internal reports and similar documents, but with the exception of one employee, the identities of the writers and recipients of those documents, and the employees referred to in those texts had been redacted. 

The Court of Appeal concluded that was necessary to consider whether this information should be disclosed by reference to the disclosure obligations under the Civil Procedure Rules (CPR”). 

The Court of Appeal was not convinced that there was a good explanation as to why the claimants wanted to know the names of the employees.  The claimants had identified potentially two employees who could be motivated by ill-well.  One of the bank’s employees had unusually asked the claimant to borrow funds of £1.5 million for a week, but the Court of Appeal decided that there was no evidential basis for a positive assertion that either of the employees had been motivated by ill-well.  It was all speculation and surmise.

The Court of Appeal highlighted that prior to the introduction of the CPR, disclosure of this information may have been appropriate as leading to a train of inquiry that might adversely affect the bank’s case, but CPR 31.16 has more stringent requirements and the disclosure of that information did not meet the test of CPR 31.16, which requires a party to disclose documents which “adversely affect his own case” and “support another party’s case”.

Accordingly, the bank was not required to disclose the names and their appeal was successful and so it was not necessary to consider the other question of public interest immunity.  Despite the fact that the bank employee had acted in an unusual way and in the event the suspicions were not justified, analysis under CPR 31.16 did not require disclosure.

As I concluded when considering this decision at first instance, the Judge had been trying to balance the interests of justice to ensure that all relevant information was available to the court, but meanwhile protecting the bank employees.  Ultimately this compromise of identifying by function rather than name would not have achieved its desired effect because the identity of the employees would have been revealed.  As such this decision had to be revisited and a more sensible approach has prevailed, which will protect bank employees.

Shah v HSBC Private Bank (UK) Limited [2011] EWCA Civ 1154

The Information Commissioner’s Office and, now on appeal, the Information Tribunal agreed with the police. The Tribunal also discounted Ms Smith’s claims that sensitive personal data can be disclosed if it is in the substantial public interest to do so. The Tribunal ruled that although there was public interest in establishing data on sexual offences, the higher threshold of substantial public interest had not been surmounted. There was public interest in establishing sexual offences by teachers and others in positions of trust. Substantial public interest could have been for something like prevalence of sexual offender activity or police incompetence in dealing with the issue. The Tribunal decided that although the decision was finely balanced, the police were right not to reveal the information that could have led to identifying individuals in this case.

The ruling can be found here: http://www.bailii.org/uk/cases/UKFTT/GRC/2011/2011_0006.html.

The first issue to be decided was whether the individuals’ evidence was relevant.  The court decided that the claimants were entitled to explore the detail of the case, namely that suspicion existed at each of the three tiers of reporting.  For such a case to be made out, the bank would have to identify at least three individuals who allegedly formed that suspicion.  This made the identity of the individuals relevant. 

The next issue to consider was whether bank employees who reported their suspicions were covered by public interest immunity.  The court concluded that as a general rule there is a need for anonymity for bank employees raising and reporting suspicions under the Proceeds of Crime Act otherwise the flow of information would be adversely affected if confidentiality was not the norm.

So, the court had to determine on the facts of this case whether carrying out a balancing exercise the individuals were entitled to anonymity.  The court took into account that it was not suggested that the claimants were involved in money laundering and nor was it suggested that the bank’s employees were at risk of reprisals or physical harm from the claimants.  Further, the reality of the matter was that given the relationship between the claimants and the bank it was likely that the claimants had a good idea of the identity of the individuals involved already.

The court therefore concluded that on the particular facts of this case, the balancing act entitled the claimants to a level of further disclosure, but because of the public interest in confidentiality, the court was most reluctant to order the complete disclosure of the names of the individuals.  Instead it was ordered that the bank should provide a schedule of each employee identifying the department where they worked.  In that way the identities of the employee would continue to be protected, but the claimant could then see whether any one or two individuals were repeatedly and closely involved in the writing or receipt of relevant report and then the claimants could make an application to seek the identity of those closely involved individuals.

In this case, the Judge was trying to balance the interests of justice to ensure that all relevant information was available to the court, but meanwhile protecting the bank employees.  When determining whether a party is entitled to know who has reported him and on what basis, each case will have to be scrutinised taking into account the individual circumstances, but bearing in mind the factors highlighted in this case. 

Shah v HSBC Private Bank (UK) Limited [2011] EWHC 1713

Nevertheless, Twitter has acted in accordance with its terms of use, which say that it would release information about its users if required by subpoena, court order or other legal process. Its policy is also to notify users of requests for information prior to disclosure unless prohibited by law.

CCTV images can be considered as personal data, and the ICO’s action came after CCTV footage of a shopper from the website was posted on YouTube. The ICO has made it clear that such disclosure of personal data should take place only where ‘necessary’ i.e. for the purposes of crime detection, rather than just for entertainment, as it was here.

The ICO criticised Internet Eyes for not encrypting CCTV images it shared with its members, and it was also not tracking member activity meaning that it could not trace who had posted the video on YouTube. The ICO has made sure that the website has signed an undertaking to ensure encryption and sufficient tracking, and has also requested that the website not allow a member to access CCTV footage taken within a 30 mile radius of the member’s registered location, in an attempt to decrease the likelihood that those people visible in the footage are identifiable to a particular member.

Under the FOIA a person can request details from a public authority as to whether the public authority holds certain information and, if so, to have that information disclosed to them. Under the FOIA such information is exempt from disclosure if disclosure would contradict any of the data protection principles.

In this case, the All Party Group asked for information from the Ministry of Defence regarding treatment of people detained at war in Afghanistan and Iraq. The Upper Tribunal ruled that the disclosure of anonymised personal data could not for the purposes of FOIA be considered the processing of personal data as the recipient would not be able to identify any of the persons to whom the data related, and as such the data protection principles did not apply. This was despite the fact that the discloser still owed the people whose data was anonymised duties as data controller under the DPA.

The Information Commissioner, the Information Tribunal and now the High Court have ruled that the Department’s approach was wrong. The refusal should not have taken place. The data was totally anonymised when published. This would not have identified the personal details of the individuals involved, as that information would not have been made public. Therefore, no personal data would have been disclosed. To decide otherwise would nullify the chance of any anonymised data ever being published.

The RFU applied to the High Court for a “Norwich Pharmacal order” to be made against Viagogo – a court order that requires the disclosure of certain documents by the respondent to the applicant, including details of third parties against whom the applicant may have a legal claim. In this case, RFU wanted Viagogo to disclose personal data of those who advertised or sold tickets on its website in order to seek redress against wrongdoing.

The High Court granted the order, ruling that the RFU was genuinely seeking redress for the alleged wrongdoing. Viagogo had argued that the RFU was actually trying to damage Viagogo’s business, but this was rejected by the High Court. The High Court justified the grant of the order on the grounds that there was no straightforward or alternative means for the RFU to obtain the information in order to take action. Whilst the High Court took into account the provisions of Viagogo’s privacy policy, the High Court ruled that it was not breached by the order.

UK Athletics Limited, the UK athletics governing body, provided the information to the UK Sports Council, a body which distributes public funds to support high performance in sport. The applicant had applied for the information to be disclosed under the Act.

The tribunal ruled that the information had been submitted by UK Athletics Limited in confidential circumstances, that the information itself was confidential, and that the public interest argument for disclosure of the information was not strong enough to justify disclosure.

Channel Four had attempted to argue that, where the substantive parts of the agreement were exempt, there was no obligation to disclose the whole agreement where an application for disclosure had been made under the FOIA. However, the tribunal ruled that those parts of the agreement not exempt from disclosure should be disclosed in a redacted version of the agreement. The tribunal pointed out that the clear intention of the legislation was to protect the rights of the public to access certain information, and the ability to avoid disclosure of an entire document due to certain sections being exempt did not fit in with that.

The lender – North Shore Ventures Ltd (“North Shore”) agreed to provide Anstead Holdings Inc (“Anstead”) with a loan facility for $50m.  North Shore was owned by Mr Boris Berezovsky and or his daughter Ms Ekaterina Berezovskaya.

 This facility was guaranteed by a Mr Fomichev and a Mr Peganov. Mr Peganov was a business associate of Mr Berezovsky. The guarantee included a term that a certificate signed by the lender North Shore for the amount of the indebtedness would be conclusive evidence for all purposes unless manifestly incorrect.

 North Shore obtained a judgment in default against Anstead for over $35m.  Proceedings were also brought against the guarantors who raised the following defences:

• The guarantee was unenforceable because North Shore, the lender failed to disclose to them that Mr Berezovsky was being investigated by the Swiss authorities for embezzlement of money due to Aereflot and as a consequence money paid to an associate in Switzerland would be frozen.
• North Shore and Anstead had varied the terms of the interest rate and therefore the certificate of indebtedness was incorrect.

 The Court of Appeal considered a number of previous cases.  The main one dating back to 1845 – Hamilton v Watson, where the House of Lords concluded that if it was necessary for a banker to disclose everything that is material for a surety to know, no banker could ever be satisfied that they had proper security.  Disclosure ought to be made voluntarily where there is anything that might not naturally be expected to take place between the parties, but the lender is not obliged to disclose other matters which might be material for the guarantor to know.  A guarantee is not like an insurance contract which is uberrimae fidei, where the insured is required to disclose all material facts to the risk.

In Royal Bank of Scotland v Etridge [2002], the House of Lords stated that it is well-established principle that a creditor is obliged to disclose to a guarantor any unusual features of the contract which makes it materially different in a potentially disadvantageous respect from what the guarantor might naturally expect.

The Court of Appeal concluded having reviewed all the previous cases that there is no duty of disclosure to disclose facts which are not unusual features.

In this case, it was agreed that the matters on which the guarantors relied were not unusual features and therefore it followed that there was no duty to disclose them. However, the lender had argued that where a lender knows that a guarantor is aware of unusual features, then a duty does not arise.  The Court decided that a lender is not absolved from his duty to disclose merely because he believes the guarantors may know these facts already.   In any event, the Court explained that if a guarantor knows of the relevant unusual facts normally the point would not arise because the failure to disclose the material fact does not constitute a misrepresentation on which the guarantor relied.

The lender also argued that the guarantors could not rely on an agreement to change the interest rates payable because a certificate had been issued which was conclusive evidence of the amount outstanding.  The court at first instance considered there was no consideration for the change and so was not enforceable.  The Court of Appeal disagreed and held that there was a variation, which was enforceable in law, which then meant that has been a manifest error and so the certificate was not conclusive evidence of the amount due.  This meant that the guarantors were obliged to pay sums owing to North Shore, but for a lesser sum.

This case is a useful reminder of the duty of disclosure owed to a guarantor.  The law takes a pragmatic approach to the extent of the duty. It is not sensible to disclose everything to a guarantor, but if a lender knows of unusual features then a lender is obliged to disclose this to the guarantor even if the lender believes the guarantor is aware of these unusual facts already.

North Shore Ventures Ltd v Anstead Holdings Inc and others [2011] EWCA Civ 230

The High Court refused to grant the order. The judge dismissed the comments as no more than ‘pub talk’ and it was fanciful to suggest that a reasonable reader would take them in any other way. It was also worth noting that the short uninformed comments should be seen in context at the end of an article that she had described as excellent, and there was nothing to suggest that the comments were part of a concerted campaign against her. In addition, they had only been discovered about a year after the original article. The newspaper’s published privacy policy would also need to be considered. Taking everything into account, the judge noted that the posters’ rights to privacy were engaged under the Human Rights Act 1998 and in the particular circumstances it would have been disproportionate to have granted the application.

The Tribunal accepted that there would likely to be a prejudice to the DWP’s commercial interests. However, it did not accept that it would actually prejudice. There was no evidence to show that it was more probable than not that there would be prejudice – this was mere speculation. The Tribunal did agree to keep one bit secret, though – Atos’s financial model should have special protection as a trade secret. The Tribunal said that for trade secrets, there was a stronger public interest in keeping it secret because of the investment involved, and competitors would get an unfair advantage. However, for liability caps, benchmarking and the rest of the contract, the public interest favoured an order for disclosure so that the public could know the service levels, performance measures, costs and risks.

Until recently the answer to that was probably yes. A wife would often trawl through her husband’s financial documents (whilst he was out engaging in what she no doubt described as ‘adulterous activity’) and then deposit a bundle with her matrimonial solicitor to ‘assist’ with disclosure. Invariably the solicitor would advise that the documents must be sent back to the husband, but not before they had taken copies to assist with her case! With hindsight this does seem a little unfair but, on the other hand, as the husband will be under a duty to disclose all of his assets, what is the loss? Unless of course he was not intending to disclose them in the first place!  

What about the position from the husband’s point of view? Having been on the receiving end of this information and now knowing that their client has these assets, his solicitors will almost certainly be duty bound to bring them to the attention of the court, or decline to continue to act if instructed to do otherwise and hence mislead the court.   

Following the ruling by the Court of Appeal this month in the case of Imerman, that seems set to change. In this case, the Court of Appeal effectively said that if a wife (or indeed a husband, if he were so minded) took it upon herself to obtain documentation which was confidential in nature, then the court would not protect her. Contrary to what many may think, there is still a requirement for confidentiality between husband and wife. I should point out that documents left lying around the house may result in the husband having lost his right to them remaining confidential. However, a wife taking this step may well be ordered to hand back those documents without retaining copies and may be prevented from using that information, whether or not later disclosed by the husband, within the divorce process. It is even possible that having handed them over to her solicitor, she may be prevented from using that solicitor.      

The risk therefore is significant. Not only might the wife have prejudiced her position by preventing her solicitor from relying on the information, she could even be forced to start again with a different solicitor. This would be unfortunate when a well-thought-out and well-drafted questionnaire could have produced the same result.   

What is the answer? Seek advice before taking such a step. That must now be the only way to go. There are other ways of approaching non-disclosure and attempts to dissipate assets (for example, making an application for a freezing injunction where there is a genuine risk that the husband is perhaps transferring assets out of the jurisdiction.) Maybe this ruling will add to the number of applications for such injunctions where wives feel that they have no alternative. Watch this space…

In Gavin Goodale v The Ministry of Justice, Queen’s Bench Senior Master Whitaker dealt with exactly this problem.

The Senior Master ordered the defendants to make a reasonable search for documents, including documents contained in electronically stored information. In so doing, he required them to complete the draft e-disclosure questionnaire which is presently being considered (together with a draft practice direction on e-disclosure by the Civil Procedure Rules Committee (CPRC). The completed questionnaire would provide the claimants and the court with the necessary information in a structured manner, regarding any issues that might arise in relation to searches for electronic documents. This is the first known case in which the draft e-disclosure questionnaire has been used as a tool in case management. The Master attached the questionnaire in a schedule to the judgment, even though it has not been finalised and approved by the CPRC.

The general rule for standard disclosure under CPR31.6 requires a party to disclose the documents on which he relies, the documents which adversely affect his own case or adversely affect another’s party’[s case or support another party’s case and documents which he is required to disclose by a relevant practice direction. CPR31.7 requires a party to make a reasonable search search for these documents. What constitutes a reasonable search is fact-specific. There are additional factors to bear in mind when scoping and conducting a reasonable search for electronic documents, set out in Practice Direction PD 31.2A.

Electronic documents include email and other electronic communications, word processed documents and databases. In addition to documents that are readily accessible from computer systems and other electronic devises and media, the definition covers those documents that are stored on servers and back-up systems and electronic documents that have been “deleted”. It also extends to additional information stored and associated with electronic documents known as metadata.

Parties to litigation should from the outset discuss any issues that may arise regarding searches for and the preservation of electronic documents. This can involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devises and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. Where there is disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.

The Senior Master’s judgment also provides a number of useful reminders as to the general approach which should be taken when dealing with e-disclosure. In particular, he emphasised the importance of taking a staged approach to avoid running up unnecessary and disproportionate costs and explains how this can be done.. The judgment is useful for a number of reminders that are highly relevant to the general approach to disclosure of electronically stored documents. Since every case is different, you should take specific advice on each search as it arises.

This is a common scenario, happening in the homes of many divorcing couples. A bank statement here, a lover’s text there, are intercepted and passed to the lawyers to use in argument, to be disclosed in so-called Hildebrand schedules.

Where this case differs (apart from involving a chef well-known for strong opinions), is that Mati did not intercept and copy the originals, before letting them through, - she retained them and handed them to her lawyers. It appears they compounded that controversial approach by taking time to disclose the 42 documents existed. One was a contract from P & O for White and another was a heart-rending letter to White from his estranged daughter, Letty. The justification for this, denied by White, is that he made the not very imaginative threat  to his wife (given the difficult economy for restaurateurs, even the famous) that she wouldn’t get a penny, that he’d live abroad, and that he’d give his property away rather than see her share in it (or words to that effect).

In a hearing last year before the Court of Appeal, White successfully appealed against Mr Justice Eady’s initial  conclusion that Withers had no case to answer and judges of that Court expressed some differing views.

Lord Justice Wilson thought he detected “…a powerful case that the present civil action represents satellite litigation of an unwholesome kind, not genuinely founded on damage suffered but, rather, designed both to destabilise prosecution of the wife’s claims against the claimant [Marco Pierre White] and to secure vengeance for perceived wrongs perpetrated by the defendants [Withers]in providing the wife with the expertise with which energetically to challenge his assertion that in effect he had no money with which to maintain her.”

On the other hand, Lord Justice Ward felt that “The interception and retention of Letty’s letter, more than the P & O contract, leaves me with such an uncomfortable feeling that for my part I would be reluctant to shut out the claimant [Marco Pierre White] and deny him his day in court.”

If White wins, some are predicting serious consequences, with the curbing of the current fairly widespread practice of copying documents supposedly left lying around, as an aid to the court having the full picture on ancillary relief hearings. Solicitors may also find themselves obliged to have a written record of advice to clients on this subject. 

If White loses, the possibilities are equally grave – with ever more audacious harvesting of documentation by opposing spouses likely to follow.