Sarah Lynette Webb v Lewis Silkin LLP

The Defendant was a firm of solicitors acting for another law firm (‘S’) in separate arbitration proceedings that the Claimant, a former partner of S, had brought against S. In the course of the arbitration the Defendant requested permission to access the Claimant’s old e-mail account. The Claimant refused.  The Defendant reserved the right to access the e-mail account, and, at a later date, did, in fact, do so.

The Claimant claimed that it was an infringement of her privacy rights to access her account and brought proceedings against the Defendant for misuse of private information. After disclosure between the parties, it became apparent that the Defendant had accessed hundreds of e-mails that contained sensitive private information. The Defendant made a Part 36 offer, which was accepted by the Claimant.

The Claimant made an application under CPR 53PD.6.1(4) to make a Statement in Open Court.

1. Whether in principle a Claimant in a misuse of private information case can – mirroring the position in a defamation claim – normally expect to be able to make a Statement in Open Court upon settlement of the action.
2. What, if any, revisions to the Claimant’s draft statement should be made, and what approach the judge should take in considering the wording of a Statement in Open Court.

1. If a statement in open court is fair, reasonable and proportionate, a claimant will normally be entitled to make such a statement in court after settlement in an action for misuse of private information. The principles governing statements in open court in defamation cases apply with equal vigour to privacy cases [40]. The purpose for the procedure was to provide more than just setting the record straight. It provided a different sort of vindication: a way for the claimant to offer an explanation for bringing proceedings and explain the extent of the damage done [45].

2. In approving the wording of the statement, the approach by the judge should be non-interventionist. The judge should be concerned not to allow a statement to resolve issues in conflict which have not been tried. However, it would be unwise to be overly prescriptive and the key is whether the words give rise to real or substantial unfairness to the objecting party. The threshold for intervention should be a high one and ‘nit-picks’ should be discouraged [44]. A unilateral statement in open court is simply representing the claimant’s point of view. It is the claimant’s understanding of the proceedings and the claimant exercising his or her right to freedom of expression. Therefore, provided the statement is fair and reasonable, the claimant ought to be allowed to publicise her understanding of the settlement as she or he wishes to do.

This case provides important clarification that the principles governing statements in open court in defamation cases will be applied with “equal vigour” to privacy cases. That will be the case even if, as was the present case, the breach of privacy rights was not done in public and only a small number of individuals had access to the Claimant’s private information.

The case also clarifies that the general purpose of a statement is not simply to allow the claimant to set the record straight, but also to record the claimant’s view of the case, for example, the motivation for bringing the proceedings and the extent of the damage that the Defendant’s action has caused.