Bains, Kazan-Allen & VNP v Moore, K2 Intelligence Ltd & Bigazzi
Reference:  EWHC 242 (QB)
Court: Queen's Bench Division
Judge: Sir Michael Tugendhat
Date of judgment: 14 Feb 2017
Summary: Breach of Confidence- Misuse of Private Information - Breach of statutory duty under the Data Protection Act 1998 - Interim Remedies - Delivery Up - Procedure - need for Particulars of Claim
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Desmond Browne QC - Leading Counsel (Defendant)
Adam Speker QC (Defendant)
Instructing Solicitors: Leigh Day for the Claimants; Grosvenor Law for the Second and Third Defendants
The Claimants are all involved in the global campaign against asbestos and the associated litigation against the asbestos industry. The first Defendant, acting on behalf of the second and third Defendants, infiltrated and reported on the internal affairs of the global campaign against asbestos for four years.
The Claimants’ claim (1) damages for breach of confidence and/or misuse of private information; (2) compensation and other remedies pursuant to the Data Protection Act 1998; (3) an injunction to restrain the Defendants from using/or disclosing the said information; (4) delivery up/or destruction and/or permanent deletion of all documents containing the said information; and (5) account of profits.
This was an adjourned hearing concerning a number of interim applications which had been listed before Laing J on 5 December 2016. The hearing on the 1st February 2017 concerned four applications, but ostensibly focused on the application by the Claimants for delivery up of private and/or confidential information from the second and third Defendants obtained as a result of the relationship with the first Defendant.
(1) Whether the Claimants are entitled to an order of delivery up of confidential information, and, if so, what would be the scope of such an order, in particular whether it would be wider in scope than the offer which the second and third Defendants already made in correspondence on 1 December 2016; and
(2) Should permission be granted to amend the Claim Form to allow four individuals to be joined as Claimants.
(1) The Claimant’s application was for interim mandatory relief. The draft order for delivery-up was impermissibly wide and the second and third Defendant’s offer was to be preferred. An order for delivery up of confidential information can only relate to information for which a duty of confidentiality is owed to the Claimant and not third parties: Fraser v Evans  1Q.B. 349 followed. The Claimant’s draft order was not confined to confidential information that related to them and therefore it was unlikely that they would receive such relief at trial.
(2)The information currently available to the Claimant was sufficient for them to draft Particulars of Claim. The proceedings demonstrate the importance of having a Particulars of Claim in interlocutory proceedings.
(3) The joinder of one of the proposed Claimants was unopposed and allowed. The application to join the other three individuals as Claimants was adjourned.
(4) The Claimants and their solicitors were released from their undertakings and allowed to disclose to the three proposed claimants documents obtained during the proceedings.
The case provides a useful illustration of the need for specificity in draft orders, particularly in cases involving confidential information. An application for delivery up of confidential information must concern information in which there is a duty of confidentiality to the Claimant, and not become too wide to encompass confidential information for other third parties. As such, Particulars of Claim are a vital stage in the process of specifying what information is confidential as to allow the Defendants to respond.
Tugendhat J refused to accept the Claimant’s submissions that the case of Ashworth Security Hospital v MGN Ltd  UKHL 29 and subsequent case law are examples of the circumstances in which claimants may advance claims for third parties generally. The judge gave no view on whether those submissions were correct, only that if that was the direction of travel in the case law it should not be developed through interlocutory proceedings and should be properly pleaded in a Particulars of Claim. The judge reminded the parties that a Particulars of Claim were not a “technical procedural requirement” but “a means through which the law seeks to give effect to the human right to a fair trial, recognised both a common law, and more recently by Article 6 of the ECHR.”