Restrictions on use of information in litigation

Rule 31.22 of the Civil Procedure Rules provides in terms that a party to litigation can only use a document disclosed to him/her by another party (in the course of those proceedings) for the purposes of those proceedings:

A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed…

The exceptions to this rule are where the document has been read to or by the court or referred to, at a public hearing, or where the other party consents to its use, or by permission of the court.

A recent judgment of Mr Justice Tugendhat deals with this rule, but also has a rather odd appearance in the wings by the Information Commissioner’s Office (ICO). The case involves an application for a strike-out of a claim by a company (“IG Index”) engaged in spread betting on financial products, which had been the defendant in proceedings in the Employment Tribunal (ET). In the course of those ET proceedings the then claimant (“Cloete” – now defendant), a former network services engineer (who, it was said, had previously raised with his then employer concerns about data security at the company) had provided the defendant company (pursuant to a disclosure order of the ET judge) with a USB stick containing lists of clients of the company (including bank payment details), which it appeared to the company had been copied or retained by the claimant in breach of covenants protecting confidential information.

Separately to the ET proceedings the company claimed orders requiring the delivery up of the documents, and was successful in gaining interim relief for this, and for destruction by Cloete of any electronic copies, ordering him at the same time to pay IG Index’s costs. Cloete complied with these Orders, while at the same time withdrawing his ET claims.

At the full hearing, at which, as Tugendhat J observed, nothing of substance was still sought by IG Index (their substantive relief having been achieved by the delivery up and destruction of the information) what remained in dispute between the parties was, effectively, costs.

However, Cloete now sought strike out on the basis that the only reason IG Index had come to know of the contents of the USB stick was through the disclosure in the ET proceedings. Accordingly, he argued, the use of that information was in breach of CPR 31.22. Tugendhat J agreed, noting, importantly, that the rule applies

to protect not only the documents themselves, but also the contents of those documents, that is to say, the information derived from the disclosed documents

So IG Index’s knowledge that Cloete had, or had had, the documents, was information derived from the disclosed documents. Accordingly, the strike out claim succeeded:

The use of the information in the present proceedings cannot be said to be for the purposes of the Employment Tribunal Proceedings…Nor is the relevant information in this case the property of the Claimant…in my judgment the use of this information for the purpose of advancing a claim for damages is plainly and obviously a breach of the prohibition

There might, it was observed, be cases where to bar a claim in circumstances such as these would give rise to an injustice, but this was not one of those cases, and, in any event, sub-rule (b) (whereby a court can grant permission for use of the material) was available to avoid any such injustice.

The Information Commissioner

What I refer to as the “rather odd” appearance in these proceedings of the Information Commissioner’s Office (ICO) arises because Cloete claimed that he hadn’t retained the information at the centre of the case from the time when he had been employed by IG Index. Rather, while he was employed, he had passed it to the ICO, to express concerns about IG Index’s data security. He only got the documents back, according to his statement to the court, when they were

sent to him by the Information Commissioner six months after his employment had been terminated…following a subject access request he made to the Information Commissioner’s Office on 17 December 2012. On 16 January 2013 the Listed Items were attached to an e-mail he received in response to that request. However, he stated that he did not appreciate at the time he received the e-mail that the Listed Items were attached

One must be careful not to make unwarranted criticism of the ICO – I note that they were not involved in the proceedings at all, and had no opportunity to challenge or clarify Cloete’s statement. However, if that statement accurately reflected what happened it would be odd, to say the least, for the ICO to return this confidential information to someone who had no apparent lawful reason to have it, and also odd that it would have been sent in response to a subject access request under the Data Protection Act 1998, which entitles someone, in broad terms, to copies of their own personal data (not that of clients of their former employer). It would be interesting to know more about this.

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Filed under Data Protection, employment, Information Commissioner

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