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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Gerrard & Anor v Eurasian Natural Resources Corporation Ltd & Anor [2020] EWHC 3241 (QB) (27 November 2020) URL: http://www.bailii.org/ew/cases/EWHC/QB/2020/3241.html Cite as: [2021] EMLR 8, [2020] EWHC 3241 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice Strand, London, WC2A 2LL |
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B e f o r e :
(sitting as a Judge of the Queen's Bench Division)
____________________
| (1) DAVID NEIL GERRARD (2) ELIZABETH ANN GERRARD |
Claimants |
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| - and |
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| (1) EURASIAN NATURAL RESOURCES CORPORATION LIMITED (2) DILIGENCE INTERNATIONAL LLC |
Defendants |
____________________
Anya Proops QC (instructed by RIAA Barker Gillette (UK) LLP) for the Second Defendant
Adam Wolanski QC, Lorna Skinner and Sandy Phipps (instructed by Enyo Law LLP) for the Claimants
Hearing dates: 3-4 November 2020
____________________
Crown Copyright ©
Table of Contents
| INTRODUCTION AND NATURE OF THE HEARING | 1 |
| OVERVIEW OF THE APPLICATIONS | 11 |
| THE RELEVANT LEGAL PRINCIPLES .. | 16 |
| THE PLEADED CASE OF HARASSMENT . | 27 |
| THE MATERIAL PARTS OF THE REPLY .. | 28 |
| THE CLAIM FOR HARASSMENT | |
| The submissions of ENRC and Diligence | 29 |
| (ii) The submissions of Mr and Mrs Gerrard . | 31 |
| (iii) The case law concerning the PHA | 32 |
| (iv) Discussion and conclusion | 78 |
| (v) The contention that the proposed amendments are embarrassing | 118 |
| THE LITIGATION PRIVILEGE ISSUE | |
| (i) How the issue arises | 122 |
| (ii) The submissions of ENRC and Diligence .. | 124 |
| (iii) The submissions of Mr and Mrs Gerrard | 131 |
| (iv) Discussion and conclusion .. | 153 |
| CONCLUSION . | 189 |
RICHARD SPEARMAN QC:
INTRODUCTION AND NATURE OF THE HEARING
OVERVIEW OF THE APPLICATIONS
THE RELEVANT LEGAL PRINCIPLES
"i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable
iii) In reaching its conclusion the court must not conduct a "mini-trial".
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial.
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction".
"(1) Particulars of Claim must include "a concise statement of the facts on which the claimant relies", and "such other matters as may be set out in a Practice Direction": CPR r.16.4(1)(a) and (e). The facts alleged must be sufficient, in the sense that, if proved, they would establish a recognised cause of action, and relevant.
(2) An application under CPR r.3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should "grasp the nettle": ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, but it should not strike out under this sub-rule unless it is "certain" that the statement of case, or the part under attack discloses no reasonable grounds of claim: Richards (t/a Colin Richards & Co) v Hughes [2004] EWCA Civ 266; [2004] PNLR 35 [22]. Even then, the Court has a discretion; it should consider whether the defect might be cured by amendment; if so, it may refrain from striking out and give an opportunity to make such an amendment.
(3) Rule 3.4(2)(b) is broad in scope, and evidence is in principle admissible. The wording of the rule makes clear that the governing principle is that a statement of case must not be "likely to obstruct the just disposal of the proceedings". Like all parts of the rules, that phrase must be interpreted and applied in the light of the overriding objective of dealing with a case "justly and at proportionate cost". The previous rules, the Rules of the Supreme Court, allowed the court to strike out all or part of a statement of case if it was "scandalous", a term which covered allegations of dishonesty or other wrongdoing that were irrelevant to the claim. The language is outmoded, but the power to exclude such material remains. Allegations of that kind can easily be regarded as "likely to obstruct the just disposal" of proceedings."
"In the context of r 3.4(2)(b), and more generally, it is necessary to bear in mind the Court's duty actively to manage cases to achieve the overriding objective of deciding them justly and at proportionate cost; as the Court of Appeal recognised over 30 years ago, "public policy and the interest of the parties require that the trial should be kept strictly to the issues necessary for the fair determination of the dispute between the parties": Polly Peck v Trelford [1986] Q.B. 1000, 1021 (O'Connor LJ). An aspect of the public policy referred to here is reflected in CPR r.1.1(2)(e): the overriding objective includes allotting a case "an appropriate share of the court's resources, while taking into account the need to allot resources to other cases"."
THE PLEADED CASE OF HARASSMENT
THE MATERIAL PARTS OF THE REPLY
THE CLAIM FOR HARASSMENT
(i) The submissions of ENRC and Diligence
(1) To succeed in their claim pursuant to section 3 of PHA, it is necessary for Mr and Mrs Gerrard to establish that the Surveillance Activities (in 2019) and the Other Surveillance Activities (in 2013/14) were "calculated to" cause distress to them. Even accepting their factual case in its entirety, they cannot do so. As is apparent from close consideration of the RAPOC, it is their own pleaded case that all of the Surveillance Activities and the Other Surveillance Activities were covert and intended to be so. Surveillance which is intended to be "covert" and thus not discovered by the target plainly cannot be said to be "calculated to cause distress" to that target.
(2) Mr and Mrs Gerrard's attempts to respond to this flaw in their claim by paragraph 31 of the RAPOC essentially boil down to three propositions. None of these propositions (even if established factually) remedy the flaw:
(a) First, they allege that while ENRC intended the surveillance to be covert, ENRC nevertheless knew that it was possible that, despite those intentions, the surveillance might be discovered by them such that the activity "carrie[d] an inherent and ongoing risk of exposure". This is no answer. Such conduct cannot be conduct which is objectively "calculated to" cause distress. It is conduct calculated to not be discovered and thus to not cause distress.
(b) Second, they allege that ENRC knew or suspected that one or more acts of covert surveillance had been discovered by them such that any subsequent acts of covert surveillance must have been objectively calculated to cause distress. Again, whilst any distress is denied, this proposition is no answer. The initial acts of covert surveillance were covert, and thus cannot have been objectively calculated to cause distress. The fact that those acts had been discovered does not render later acts of surveillance acts calculated to cause distress if, again, those acts were also covert. For example, even if it were established that ENRC did instruct the attempted surveillance in the Caribbean and knew or suspected that Mr and Mrs Gerrard had been made aware of the attempt, that would not mean that any subsequent surveillance of their property was "calculated to" cause distress, given the substantial efforts to ensure that surveillance was covert and not discovered.
(c) Third, they allege that ENRC knew that it was possible that the surveillance would be discovered later as a result of documents generated by the surveillance being disclosed in the Chancery or Commercial Court Proceedings. As to this: (i) Such a possibility (again) can have no bearing on whether the surveillance was calculated to cause distress; (ii) The proposition proceeds on the basis that the tort would only be complete on some future occasion (which may never arise); (iii) Further, and in any event, a party deploying documents in the course of litigation would be subject to immunity from civil suit, with the result that such conduct may not form the basis of a claim in harassment (as held by the Court of Appeal in Crawford v Jenkins [2014] EWCA Civ 1035 per Sir Timothy Lloyd at [69] to [70], applying (at [43]) the judgment of Lewison LJ in Singh v Reading Borough Council [2013] 1 WLR 3052 in which it was held that the relevant immunity applied to "statements of case and other documents placed before the court").
(3) The surveillance activities alleged by Mr and Mrs Gerrard could not, taken at their highest, be sufficiently grave to attract criminal liability: "On [their] approach, any private investigation firm would be engaged in a course of criminal harassment if there were any risk of its covert surveillance being detected or if it attempted to resume covert [surveillance] after an earlier episode had been detected, or because there may be some chance that the surveillance activities would be revealed in the course of legal proceedings" and "It would be most surprising if, after 23 years of operation under the [PHA], and the grant of innumerable search and freezing orders based in part on evidence obtained by surveillance, if that were the law."
(4) The above points concern the Surveillance Activities and the Other Surveillance Activities. By the RAPOC, Mr and Mrs Gerrard seek to bring a further claim of harassment which is said to arise from two letters sent by ENRC's solicitors, Jones Day. Such letters constitute action in the litigation, pursuant to which ENRC is seeking to defend its rights and interests, both in this litigation and in the Commercial Court Proceedings. It is conduct squarely in connection with extant civil legal proceedings, for the purposes of Article 6 ECHR. The letters are written communications alone (benefiting in their own right from Article 10 ECHR) in a context that, were this a claim for defamation, would plainly benefit from at least qualified privilege. In substance, the letter dated 8 June 2020 was written in accordance with the provisions of the Undertakings Consent Order, and comprised notice by ENRC of ENRC's intention to limit the ambit of the undertakings given by ENRC to "physical surveillance" and thus remove references to surveillance by "digital" means including "observing, tracking, monitoring or recording their online activities". Further, the letter explained the rationale for ENRC exercising its right under the Undertakings Consent Order. By the letter dated 12 June 2020, ENRC clarified its position further by confirming that the withdrawal of the undertaking related to Mr Gerrard only (i.e. the full undertaking for Mrs Gerrard would remain) and also confirming that ENRC had no intention of carrying out investigations of Mr Gerrard outside the Legitimate Aim. Even putting aside the fundamental legal problems of extending the tort of harassment to the conduct of litigation (see below), the allegation that the letters from Jones Day on 8 June and 12 June 2020 in fact constituted actionable harassment pursuant to section 3 of the PHA is fanciful:
(a) The letters did no more than exercise a right that Mr and Mrs Gerrard agreed that ENRC should have to withdraw the Undertakings on notice. The exercise of such a right cannot on any view amount to conduct calculated to cause distress. Indeed, given that the right being exercised was specifically negotiated between solicitors acting for the respective parties, the exercise of the right is self-evidently "reasonable" (for the purposes of section 1(3)(c) of the PHA).
(b) Even if exercise of such a right could, in principle, amount to harassing conduct (i.e. actus reus), there is no evidence that the letters were in fact calculated to cause distress. The letters set out entirely proper justifications for the exercise of the right to withdraw.
(c) There is no evidence that Mr and Mrs Gerrard have in fact been caused distress.
(d) Most notably, and notwithstanding the assertions that the justifications provided by ENRC for withdrawing the undertakings were insufficient, Mr and Mrs Gerrard have not since sought an injunction to replace the undertakings that have been withdrawn (despite having threatened to do so by letter dated 11 March 2020). If they are correct that the conduct of ENRC (through Jones Day) amounted to criminal harassment, then that would be the obvious course. No explanation has been provided as to why that course has not been adopted.
(e) Letters sent on instruction during the course of litigation cannot be the subject of a claim for harassment (applying the principles established by Sir Timothy Lloyd in Crawford at [69] to [70]).
(f) More broadly (and in any event) the Court should be extremely chary in finding that any action taken in the course of the conduct of litigation, particularly defensive litigation, by reputable solicitors in correspondence to another party's solicitors could amount to the crime and tort of harassment, given the implications such analysis may have for: (i) the common law fundamental right to access the Court/Article 6 ECHR; and/or (ii) the common law fundamental right to legal professional privilege/Article 8 ECHR; and/or (iii) the common law fundamental right of free speech/Article 10 ECHR.
(g) Sections 1(3)(a) to (c) of the PHA must be purposively construed when applied to extant litigation. The only sensible approach is to construe those provisions as preventing any claim of harassment (not least since the intrusion of a criminal liability into the conduct of litigation has an intolerable chilling effect) arising out of the conduct of litigation. At the very least, once it is shown the context of the purported harassment complained of is solicitor to solicitor correspondence, section 1(3)(b) and (c) purposively construed, requires the claimant then to show that the correspondence is actuated by malice (by analogy to the approach to qualified privilege: see Clerk & Lindsell, §§22-96-97) something Mr and Mrs Gerrard's pleaded case does not begin to do. Alternatively, if there is any residual role for the PHA in relation to the conduct of litigation it cannot sensibly extend beyond the very narrow ambit of the tort of malicious (civil) proceedings, following the Willers v Joyce line of authority (see [2016] UKSC 43, [2018] EWHC Ch 3424 (trial)), and that pleaded case comes nowhere near that.
(h) In particular, it should not be necessary to enquire whether any particular action is enabled or required by a particular section or provision, although that conclusively answers some of Mr and Mrs Gerrard's wider complaints. For instance, complaint is also made by Mr and Mrs Gerrard of the potential use of surveillance material in Court in the Commercial Court Proceedings. But: (i) if such material is disclosed and used in the Commercial Court Proceedings, it will be disclosed and used pursuant to legal obligations to disclose under the CPR and Orders made under it, and will thus fall within section 1(3)(b) of the PHA; and (ii) if used in Court, it will be used in circumstances both attracting absolute privilege for anything said or done in relation to such material, and under the full control of the Court (which will have powers to control the deployment of the material under CPR 39), and such use will fall under either section 1(3)(b) or (c). The dangers of rejecting this analysis include that, taken to its logical extreme, not only would solicitors have to fear criminal liability as a result of their conduct of litigation, but also it would mean that a variation/withdrawal mechanism in a Court Order such as the Undertakings Consent Order could never in fact be lawfully operated.
(5) For all these reasons, "these fresh complaints are hopeless in fact and in law", and: (a) paragraphs 30-33 of the RAPOC should be struck out; (b) the proposed amendments alleging the above claim for harassment (paragraph 31(i)) and the consequent amendments to the claim for damages (paragraph 44(i)) and injunctive relief (at paragraph 46), should be disallowed on the basis that they are unarguable; and (c) paragraph 8(a)(ii) of the Reply should be struck out for the same reason.
(1) "It is incoherent to the point of being misconceived to allege that conduct that is covert (i.e. designed to be concealed from an individual) can at one and the same time amount to conduct which was 'calculated' by the putative tortfeasor to have harassing effects on that individual: logically such conduct must be taken to have been 'calculated to' have no effects on the target of the conduct, still less effects which are harassing in nature."
(2) " to hold that covert surveillance activities will amount to unlawful harassment merely because of the possibility that the surveillance may be discovered or because the fruits of the surveillance may at some point in the future be deployed in court would be to create a situation in which all covert surveillance activities were immediately at risk of being classified as criminal conduct for the purposes of [section 2(1) of the PHA], which outcome would plainly be absurd in all the circumstances."
(3) " often covert surveillance is the only means by which those activities can be brought to light and subject to adjudication by the courts. It is both conceptually illogical and contrary to public policy to proceed on the basis that such surveillance is by its very nature susceptible to being characterised as criminally harassing in nature, and yet that is the upshot of the Claimants' case The suggestion that a specialist investigations company conducting covert surveillance, on behalf of a third party client, for the purposes of substantial litigation that is either in train or in prospect, is automatically and without more (criminally) engaging in conduct calculated to harass the subjects of that surveillance is simply not tenable."
(4) " the question of whether the Claimants have an arguable case as to the effects of the alleged surveillance on them this is not the issue which falls to be considered in the context of the Strike Out Applications; rather the issue is whether the Claimants' allegations that the Defendants had the requisite guilty mind in respect of the alleged surveillance activities have reasonable prospects of success. For the reasons set out in ENRC's skeleton and above, they do not."
(ii) The submissions of Mr and Mrs Gerrard
(1) The central contention of ENRC and Diligence (i.e. that because the conduct consisted of covert surveillance, Mr and Mrs Gerrard's case that ENRC and Diligence knew or ought to have known that their conduct amounted to harassment of Mr and Mrs Gerrard should be struck out) is unsupported by authority and is misconceived.
(2) In any event, Mr and Mrs Gerrard propose to amend their case in harassment to set out further particulars as to why they contend that ENRC and Diligence knew or ought to have known that the conduct amounted to harassment: see RAPOC, [31].
(3) As the PHA does not define "harassment", it is necessary to have recourse to the authorities to discern the meaning of that concept. The following points emerge:
(a) To amount to harassment, the course of conduct must cross the boundary between that which is unattractive and even unreasonable, and that which is oppressive and unacceptable.
(b) The concept of harassment is wide and open ended.
(c) Because the PHA is concerned with courses of conduct amounting to harassment rather than with individual acts, it is not necessary for the claimant to establish that each act making up the course of conduct amounts to harassment; instead, the focus is on the course of conduct taken as a whole (see Iqbal v Dean Manson Solicitors [2011] IRLR 428, Rix LJ at [45]: "[t]he course of conduct cannot be reduced to or deconstructed into the individual acts, taken solely one by one.")
(d) The context in which the course of conduct occurs is relevant.
(e) It is the substance of the course of conduct that matters, not its form. Harassment can occur even if the conduct in question is, at first sight, commonplace or unremarkable (see Roberts v Bank of Scotland [2013] EWCA Civ 882, concerning the volume and nature of telephone calls made by a bank to a defaulting debtor).
(f) Complaints between lawyers as to the conduct of litigation can amount to harassment (see Iqbal, Rix LJ at [41]-[42]: "In sum, in my judgment, each of these letters does, when considered side by side, arguably evidence a campaign of harassment against [the claimant]. They are arguably capable of causing alarm or distress. They are arguably unreasonable, or oppressive and unreasonable, or oppressive and unacceptable, or genuinely offensive and unacceptable. Arguably, they go beyond annoyances or irritations, and beyond the ordinary banter and badinage of life. Arguably, the conduct alleged is of a gravity which could be characterised as criminal ")
(g) A person may claim for harassment even if he or she was not a person targeted by the course of conduct, but merely a person foreseeably and directly harmed by the course of conduct.
(h) A course of conduct can amount to harassment even if it involves no communications with the claimant, but instead involves actions and allegations which the defendant knows or ought to know will get back to the claimant and cause alarm, distress and anxiety.
(i) Acts of surveillance, or the prospect of future acts of surveillance, can comprise a course of conduct amounting to harassment; and this is so even if the subject of the surveillance only later discovers the surveillance.
(j) In particular, it is apparent from Howlett v Holding [2006] EWHC 41 and Kellett v DPP [2001] EWHC Admin 107 that a claim in harassment lies when: (1) a person is subject to surveillance which is unknown at the time, but which is subsequently discovered; and/or (2) a person is subject to a continuing threat of surveillance, even of no such surveillance actually takes place.
(4) In light of these considerations, Mr and Mrs Gerrard have at lowest a real prospect of establishing that their case on harassment is sound in law. In particular, the question of whether conduct amounts to harassment is a question of substance, rather than of form. Accordingly, whether or not the conduct amounted to harassment can only be determined by reference to the findings of fact as to what did or did not occur. Much of the challenge of ENRC and Diligence to the pleaded case on harassment is centred around the contention that Mr and Mrs Gerrard (and Mr Gerrard in particular), were not, in reality, alarmed or distressed at all. However, that is a matter which cannot be resolved summarily, and can only be resolved through cross-examination at trial.
(5) Accordingly, the applications to strike out the harassment claims should be dismissed, and Mr and Mrs Gerrard should be permitted to amend their pleaded case in the form of the revised draft RAPOC (save only that in the following sentence in the current draft [4] the word "investigation" should be used in place of the word "surveillance": "Accordingly, starting on a date no later than 1 January 2019, the Second Defendant has been undertaking surveillance activities in relation to the Claimants").
(iii) The case law concerning the PHA
"18. I turn to the material provisions of the 1997 Act. The purpose of this statute is to protect victims of harassment, whatever form the harassment takes, wherever it occurs and whatever its motivation. The Act seeks to provide protection against stalkers, racial abusers, disruptive neighbours, bullying at work and so forth. Section 1 prohibits harassment in these terms:
'(1) A person must not pursue a course of conduct -
(a) which amounts to harassment of another, and
(b) which he knows or ought to know amounts to harassment of the other.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.'
Certain courses of conduct are excepted: where the course was pursued for the purpose of preventing or detecting crime, or was pursued under any enactment or rule of law, or where in the circumstances it was reasonable to pursue the course of conduct: section 1(3). Harassment is not defined in the Act, but it includes causing anxiety or distress. A course of conduct means conduct on at least two occasions: section 7(2), (3). Harassment may be of more than one person.
19. This statutory prohibition applies as much between an employer and an employee as it does between any other two persons. Further, it is now tolerably clear that, although the victim must be an individual, the perpetrator may be a corporate body.
20. Section 2 creates the criminal offence of harassment. The offence comprises pursuit of a course of conduct in breach of section 1. Criminal proceedings can deal only with offences which have been committed. Section 3 goes further. Section 3 affords victims a civil remedy in respect both of actual breaches of section 1 and also threatened breaches. For instance, a single act of harassment may have occurred, not in itself a course of conduct, and the victim may fear repetition. Section 3 provides:
'(1) An actual or apprehended breach of section 1 may be the subject of a claim in civil proceedings by the person who is or may be the victim of the course of conduct in question.
(2) On such a claim damages may be awarded for (among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment.'
Subsequent provisions in the section make plain that the court may grant an injunction for the purpose of restraining a defendant from pursuing any conduct which amounts to harassment. Breach, without reasonable excuse, of such an injunction is itself a criminal offence: subsection (6).
21. The Trust, relying on the permissive 'may' in section 3(2), submitted that an award of damages under this section is discretionary. A claimant is not entitled to damages as of right. Hence, it was said, harassment cannot be equated with a common law tort.
22. I do not agree. The effect of section 3(1) is to render a breach of section 1 a wrong giving rise to the ordinary remedies the law provides for civil wrongs. This includes an entitlement to damages for any loss or damage sustained by a victim by reason of the wrong. Ordinary principles of causation and mitigation and the like apply. Subsection (2) is consistent with this understanding of the section. The phrase 'among other things' assumes that damages are recoverable. The enabling language ('may be awarded') is apt simply to extend or clarify the heads of damage or loss for which damages are recoverable."
"Where the quality of the conduct said to constitute harassment is being examined, courts will have in mind that irritations, annoyances, even a measure of upset, arise at times in everybody's day-to-day dealings with other people. Courts are well able to recognise the boundary between conduct which is unattractive, even unreasonable, and conduct which is oppressive and unacceptable. To cross the boundary from the regrettable to the unacceptable the gravity of the misconduct must be of an order which would sustain criminal liability under section 2."
"65. They might have considered that the principal purpose of the Act was prevention and protection rather than compensation. It begins with the prohibition of harassment in section 1. This is then made a criminal offence by section 2. Civil remedies, including damages and injunctions are provided for in section 3. The aim, it might be thought, was to deter, to punish or to encourage the perpetrator to mend his ways by the wide range of criminal disposals available on summary conviction, including the restraining orders provided for in section 5, or by the sort of specific prohibitions which may be helpfully contained in an injunction.
66. If this was the aim, it is easy to see why the definition of harassment was left deliberately wide and open-ended. It does require a course of conduct, but this can be shown by conduct on at least two occasions (or since 2005 by conduct on one occasion to each of two or more people): section 7(3). All sorts of conduct may amount to harassment. It includes alarming a person or causing her distress: section 7(2). But conduct might be harassment even if no alarm or distress were in fact caused. A great deal is left to the wisdom of the courts to draw sensible lines between the ordinary banter and badinage of life and genuinely offensive and unacceptable behaviour.
67. If prevention and protection were the aim, it is also easy to see why the mental element was framed as it was. A person is guilty of harassment if he knows or ought to know that his course conduct amounts to harassment: section 1(1)(b). He ought to know this if a reasonable person in possession of the same information would think that it amounted to harassment: section 1(2). There is no requirement that harm, or even alarm or distress, be actually foreseeable, although in most cases it would be. This broad formulation helps the courts to intervene to warn the perpetrator and encourage him to mend his ways."
"(1) A person is guilty of an offence if
(a) the person pursues a course of conduct in breach of section 1(1), and
(b) the course of conduct amounts to stalking.
(2) For the purposes of subsection (1)(b) a person's course of conduct amounts to stalking of another person if
(a) it amounts to harassment of that person,
(b) the acts or omissions involved are ones associated with stalking, and
(c) the person whose course of conduct it is knows or ought to know that the course of conduct amounts to harassment of the other person.
(3) The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking
(a) following a person,
(b) contacting, or attempting to contact, a person by any means,
(c) publishing any statement or other material (i) relating or purporting to relate to a person, or (ii) purporting to originate from a person,
(d) monitoring the use by a person of the internet, email or any other form of electronic communication,
(e) loitering in any place (whether public or private),
(f) interfering with any property in the possession of a person,
(g) watching or spying on a person.
(6) This section is without prejudice to the generality of section 2."
"30 The Act does not attempt to define the type of conduct that is capable of constituting harassment. "Harassment" is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.
31 The fact that conduct that is reasonable will not constitute harassment is clear from section 1(3)(c) of the Act. While that subsection places the burden of proof on the defendant, that does not absolve the claimant from pleading facts which are capable of amounting to harassment. Unless the claimant's pleading alleges conduct by the defendant which is, at least, arguably unreasonable, it is unlikely to set out a viable plea of harassment."
" Harassment is both a criminal offence under section 2 and a civil wrong under section 3. Under section 7(2), references to harassing a person include alarming the person or causing the person distress, but the term is not otherwise defined. It is, however, an ordinary English word with a well understood meaning. Harassment is a persistent and deliberate course of unreasonable and oppressive conduct, targeted at another person, which is calculated to and does cause that person alarm, fear or distress: see Thomas v News Group Newspapers Ltd [2002] EMLR 78, para 30 (Lord Phillips of Worth Matravers MR) "
"It is right that, for the statutory tort of harassment to occur, there must be a course of conduct which is aimed (or targeted) at an individual since that is inherent in the term "harassment". But I see no reason why it should be only that individual who can sue, if the defendant knows or ought to know that his conduct will amount to harassment of another individual. The tort (and crime) of harassment does not require an intent to harass any one individual; section 1 of the Act is clear that the question whether conduct is harassing conduct is an objective question for the fact-finder. If therefore a defendant knows or ought to know that his conduct amounts to harassment, he should be liable to the person harassed, even if the conduct is aimed at another person. A defendant is always entitled to show, pursuant to section 1(3) of the Act, that in the particular circumstances, his pursuit of the course of conduct was reasonable."
" although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment".
"133. In R v. Curtis (James Daniel) [2010] EWCA Crim 123, the Court of Appeal (Criminal Division) considered what constituted harassment, in a judgment of the Court given by Pill LJ.
[29] To harass as defined in the Concise Oxford Dictionary, Tenth Edition, is to 'torment by subjecting to constant interference or intimidation'. The conduct must be unacceptable to a degree which would sustain criminal liability and also must be oppressive. We respectfully agree with the analysis of Lord Phillips MR, with whom Jonathan Parker LJ and Lord Mustill agreed, in Thomas v News Group Newspapers Ltd [2001] EWCA Civ 1233.
134. This interaction of ss.2(1) and 3(1) of the Act and the fact that the same actions may give rise to both criminal and civil liability has been further considered in later cases in the Court of Appeal (Civil Division). These cases provide a warning against confining civil claims only to those cases where a criminal case would succeed.
135. In Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46, Jacobs LJ said at [18]
It has never been suggested generally that the scope of a civil wrong is restricted because it is also a crime. What makes the wrong of harassment different and special is because, as Lord Nicholls and Lady Hale recognised, in life one has to put up with a certain amount of annoyance: things have got to be fairly severe before the law, civil or criminal, will intervene.
136. In Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 Maurice Kay LJ observed,
[11] The primary focus is whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which 'would sustain criminal liability'.
[15] It may be that, if asked, a prosecutor would be reluctant to prosecute but that is not the consideration, which is whether the conduct is of 'an order which would sustain criminal liability'. I consider that, in the event of a prosecution, the proven conduct would be sufficient to establish criminal liability. I do not accept that, in a criminal court, the proceedings would properly be stayed as an abuse of process."
"(1) There must be conduct which occurs on at least two occasions,
(2) which is targeted at the claimant,
(3) which is calculated in an objective sense to cause alarm or distress, and
(4) which is objectively judged to be oppressive and unacceptable.
(5) What is oppressive and unacceptable may depend on the social or working context in which the conduct occurs.
(6) A line is to be drawn between conduct which is unattractive and unreasonable, and conduct which has been described in various ways: 'torment' of the victim, 'of an order which would sustain criminal liability'."
"16. In my judgment there is no error of law in the approach adopted by the Crown Court in this case and the questions posed are to be answered in the affirmative. The offence was only complete when the complainant was told of the telephone calls made by the appellant in that it was the knowledge of his conduct that caused her distress. But the fact that she had been informed of the course of conduct by a third party rather than by the appellant himself did not mean that there was no offence committed once she had been so informed, even in circumstances where the appellant had asked that she should not be so informed, so long as there was evidence on the basis of which the court could properly conclude, as it clearly did, that the appellant was pursuing a course of conduct which he knew or ought to have known amounted to harassment of the complainant.
17. The court could and did have regard also to section 1(2) providing that a person ought to know that it amounts to harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to harassment of the other.
18. There was in my judgment evidence on the basis of which the court could properly conclude, and it did so conclude, that those allegations were made out. Equally, in my judgment, there was ample evidence in the circumstances of this case for the court to conclude that the appellant's pursuit of the course of conduct was not reasonable. He went considerably beyond the simple reporting of the fact that the complainant was at home when he contended that she should be working and alleged, for example, fraud and an extortionate salary."
"There appears to be no direct authority on the meaning of "calculated", though there is some on the similar phrase "calculated to cause pecuniary damage" in s3 of the 1952 Act (which deals with malicious falsehood). Though "calculated to" may have the subjective sense of "intended to bring about a certain result" it is often used in the law in the broader, objective sense of "likely to produce a result" and it has been interpreted in this way in cases under s.3 (Andre v Price [2010] EWHC 2572 (QB)). Tugendhat J noted that there can be degrees both of "likelihood" and "disparagement". However s.2 had to be interpreted in a way that required more than a minimal meaning to be attributed to each of the words to reflect the importance of art.10 rights: "It would be inconsistent with Article 10 to impose liability for slander when the effect upon a Claimant's reputation was below a certain threshold" (at [98]). Having said that, his lordship agreed with counsel that in this context "calculated" must mean something less than "more likely than not" (at [97])."
"Under the provisions of s.3(1) of the Defamation Act 1952, it is not necessary to allege or prove special damage:
"(a)if the words upon which the action is founded are calculated to cause pecuniary damage to the plaintiff and are published in writing or other permanent form; or
(b)if the said words are calculated to cause pecuniary damage to the plaintiff in respect of any office, profession, calling, trade or business held or carried on by him at the time of the publication."
"Calculated to" in this context has been accepted as meaning "more likely than not" (Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]. See also, IBM v Web-Sphere Limited [2004] EWHC 529 (Ch) at [74] (Lewison J). In Ferguson v Associated Newspapers Ltd [unreported, December 3, 2001] Gray J stated: "In my opinion, the word "calculated", where it appears in the Defamation Act, should be given the meaning of "likely" or "probable" rather than such as might well happen, or something which is a possibility "). The claimant must plead and prove with sufficient particularity that it was more likely than not that the damage referred to in s.3 was caused by "the words upon which the action is founded". This requires him to give particulars of the nature of the allegedly probable damage and the grounds relied on for saying that it is more likely than not (Tesla Motors Ltd v BBC [2011] EWHC 2760 (QB) at [66])."
"(1) A person whose course of conduct causes another to fear, on at least two occasions, that violence will be used against him is guilty of an offence if he knows or ought to know that his course of conduct will cause the other so to fear on each of those occasions.
(2) For the purposes of this section, the person whose course of conduct is in question ought to know that it will cause another to fear that violence will be used against him on any occasion if a reasonable person in possession of the same information would think the course of conduct would cause the other so to fear on that occasion.
(3) It is a defence for a person charged with an offence under this section to show that
(a) his course of conduct was pursued for the purpose of preventing or detecting crime,
(b) his course of conduct was pursued under any enactment or rule of law or to comply with any condition or requirement imposed by any person under any enactment, or
(c) the pursuit of his course of conduct was reasonable for the protection of himself or another or for the protection of his or another's property."
"The second of those requirements is that the conduct must be calculated to produce the consequences described in section 7 (alarming the person or causing the person distress). Conduct would, it seems to us, to be calculated to produce the consequences described in section 7 if the defendant intended to alarm the complainant or cause him distress (or, perhaps, was reckless as to the consequences). Section 4 requires proof that the defendant knew or ought to have known that his course of conduct would cause the complainant to fear violence. The jury in the present case not having been directed, in accordance with Curtis, that they must be sure that the defendant intended to alarm the complainant or cause him distress, is the conviction safe? In our view it is. We take the view, contrary to the submissions of Miss Jung, that it is inconceivable that the jury (given their other conclusions) would not have been sure that the appellant intended to alarm or distress the complainant in order to achieve his stated objective of protecting Yahuffu. Unless he at least alarmed or distressed the complainant, the appellant would, on his account, have been unable to achieve his objective." (emphasis added)
"The Crown Court was undoubtedly correct to follow the guidance of the Court of Appeal in R v Haque. The three requirements identified include as a second requirement the conduct must be calculated to produce the consequences described in section 7 and thus the defendant must have intended to alarm the complainant or cause him distress (see paragraph 72). The third requirement is that the conduct must have been oppressive and unreasonable (see paragraph 73)." (emphasis added)
(1) in IBM v Web-Sphere Ltd [2004] EWHC 529 (Ch); [2004] FSR 39 Lewison J noted that the phrase "calculated to cause pecuniary damage" should be interpreted as meaning likely or probable in an objective sense, rather than a possibility;
(2) in Cruddas v Calvert [2013] EWHC 2298 (QB) at [195] Tugendhat J adopted the meaning "more likely than not to cause pecuniary damage" (and that phrase was also used by the Court of Appeal in Tesla Motors Ltd v BBC [2013] EWCA Civ 152 at [27]);
(3) in Fage UK Ltd v Chobani UK Ltd [2013] EWHC 630 (Ch); [2013] FSR 32 at [151] Briggs J found that the phrase means "damage is, in the ordinary course of events, viewed objectively, likely to be caused by the conduct of which complaint is made"; and
(4) for the same reasoning as informs the "more likely than not" test in those cases (which involved human rights and Article 10) that test is appropriate in the present case (which, they submitted, involves human rights, Article 6, and Article 8 privilege).
"140. There must, therefore, be conduct on at least two occasions which is, from an objective standpoint, calculated to cause alarm or distress and oppressive, and unacceptable to such a degree that it would sustain criminal liability: see Dowson v Chief Constable of Northumbria Police [2010] EWHC 2612 (QB) [142] (Simon J).
141. The reference to an "objective standpoint" is important, not least when it comes to cases such as the present, where the complaint is of harassment by publication. In any such case the Court must be alive to the fact that the claim engages Article 10 of the Convention and, as a result, the Court's duties under ss 2, 3, 6 and 12 of the Human Rights Act 1998. The statute must be interpreted and applied compatibly with the right to freedom of expression, which must be given its due importance. As Tugendhat J observed in Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB) at [267] "[i]t would be a serious interference with freedom of expression if those wishing to express their own views could be silenced by, or threatened with, claims for harassment based on subjective claims by individuals that they feel offended or insulted".
148. In general it may be better to evaluate a given factual scenario in its totality, before reaching a conclusion on whether it amounts to harassment. But in this case I have no difficulty dealing, in isolation, with the question of whether it has been proved that the defendants' conduct actually caused alarm or distress, or other emotions or impacts consistent with it amounting to harassment. To do so involves picking out for separate consideration the question of whether the claimant has proved the harm which is plainly an element of the tort. As Lord Phillips said in Thomas at [29], "It seems to me that section 7 [(2)] is dealing with that element of the offence which is constituted by the effect of the conduct rather than with the types of conduct that produce that effect." On the facts of this case at least I see no great difficulty, either, in dealing in isolation with the objective aspect of the same question, namely whether the defendants' conduct was calculated or likely to produce alarm or distress. I can also reach a conclusion on whether the conduct reached the necessary level of gravity or, put another way, whether it was objectively oppressive, having regard to the subject-matter, the claimant's status, personality, and the other objective circumstances relied on.
149. But it seems to me that the question of subjective intention belongs in a different category, and is difficult to assess fairly other than in the context of the twin defences of legitimate purpose and reasonableness that are advanced in reliance on s 1(3). It seems reasonable to conclude that conduct which causes distress but might otherwise be fair and reasonable may in fact be unreasonable, if it is engaged in for an illegitimate purpose, or with malign intent. An example was given by Counsel in Thomas: " the editor who uses his newspaper to conduct a campaign of vilification against a lover with whom he has broken off a relationship" (see [36]). This approach would seem consistent with the requirement of the Strasbourg jurisprudence that the right to freedom of expression should be exercised in good faith. Similar reasoning applies to the defendants' further contention that I should find against Mr Hourani on this issue because "For many years he benefitted to an extraordinary degree from his close connections to [Aliyev] and the elite of the Kazakh State. As a result he was able to accumulate vast wealth." These are disputed allegations, the truth or falsity of which cannot affect the question of whether the offending acts were likely to or did cause harm, or whether they were objectively oppressive."
(iv) Discussion and conclusion
"I put to [Counsel for the defendant] in the course of argument the hypothesis that a victim of surveillance had been watched on six occasions but only realised what was happening on the seventh when he was caused alarm. On his case, there would be no "course of conduct" because there had been no alarm or distress on the previous occasions. Moreover, if the surveillance continued six more times, without the victim spotting it, those occasions would also have to be left out of account. I regard this as an artificial approach."
(1) The following by car from the Goring Hotel in January or February 2014 appears to have been detected by Mr Gerrard at the time.
(2) The placing of the tracking device on Mr Gerrard's car is said to have happened in 2013 or 2014. This is also, on the face of the pleaded case, when it was discovered (as, otherwise, how could it be known that this is when it happened?). It is unclear what, if any, interval passed between its placement and its detection. However, the inference is that it was still in place, and tracking his car, when it was discovered, and therefore he became aware of the conduct which he complains of while it was still taking place, even if it may also have taken place undetected by him prior to that.
(3) The interviews that are alleged to have been staged for purposes of obtaining information about Mr Gerrard took place in December 2013 and January 2014, and it is alleged in the RAPOC that their true purpose became apparent upon the attendance of the ex-Dechert LLP employees at the interviews (i.e. at the time of that conduct).
(1) The "Video Camera Surveillance of the Claimants' Property" is alleged to have begun by 1 January 2019, to have been discovered and reported to Mr and Mrs Gerrard on 16 April 2019, and to have involved use of an SD data storage card containing video files dating from 26 March 2019 to 17 April 2019 inclusive. Even if (contrary to my analysis above) Mr and Mrs Gerrard have no basis in law for complaining about the surveillance prior to the date when they discovered that it was taking place, it is apparent on the face of the RAPOC that it continued on 17 April 2019, that is to say after the date when it had been discovered and reported to them, and there seems no reason at all why they cannot rely upon that continuance of surveillance at least.
(2) The "Attempted Physical Surveillance of the Claimants on Holiday" has two main limbs: (i) that Diligence obtained advance information about Mr and Mrs Gerrard's travel arrangements to a private Caribbean island in January 2019 and (ii) that Diligence attempted physical surveillance of them while they were on holiday there. It is unclear from the RAPOC when and how Mr and Mrs Gerrard learned some of the detail of what is pleaded, which, in sum, is that: (i) Diligence obtained advance information about their flight from London Gatwick to St Lucia, and details of the villa on the island at which they were staying; (ii) two of Diligence's operatives travelled out on the same flight as Mr and Mrs Gerrard; (iii) three days later, two of Diligence's Operatives attempted to gain access to the island by means of false claims to the St Lucia authorities that they were nephews of Mr and Mrs Gerrard, but the falsity of those claims was rapidly discovered by others who were staying with Mr and Mrs Gerrard, and was reported back to the St Lucia authorities, such that the operatives were denied entry; (iv) Mr and Mrs Gerrard were informed about this attempt "and of the presence of a third individual on St Lucia, during the course of that same day by the St Lucia authorities, who were alarmed by the attempts, and concerned for [Mr and Mrs Gerrard's] safety"; and (v) two days after that, a fourth Diligence operative travelled out to St Lucia from London Gatwick, this time with an advance booking to stay at a hotel located on the island, but he was intercepted by the authorities at St Lucia airport and interviewed because the hotel had alerted them to his impending arrival, and he was denied entry to the island due to his suspicious behaviour, and Mr and Mrs Gerrard were informed of this individual's attempt to gain access to the island on that same day. Even if (contrary to my analysis above) Mr and Mrs Gerrard have no basis in law for complaining about these activities prior to being given information about the conduct of the first three Diligence operatives, it is apparent from the RAPOC that the conduct of the fourth operative occurred after the activities of the first three had been discovered and reported to them by the St Lucia authorities ("who were alarmed by the attempts, and concerned for [their] safety") and (subject to issues of territoriality, which are discussed below) there seems no reason why they cannot rely upon the conduct of the fourth operative at least.
(3) The "Physical Surveillance of the First Claimant's place of work" relates to an incident which took place on 18 January 2019 when an individual who, it is alleged in the RAPOC, was one of Diligence's operatives attended at the offices of Dechert LLP, but left the building when approached by security personnel. While the date when Mr and/or Mrs Gerrard found out about this incident is not pleaded, the implication is that they found out about it at or around the time when it took place, and it not obvious why they cannot rely upon it as an incident of harassment.
(4) The "Physical Surveillance of the First Claimant in a restaurant" relates to an incident which took place after Mr and Mrs Gerrard had returned from their holiday on the Caribbean island. It is pleaded that Mr Gerrard made a booking for lunch with a friend at a restaurant in a hotel in London on 4 February 2019. When he arrived at the hotel at around 1pm, two men followed him into the restaurant, which was not busy, walked past 10 to 15 empty tables, and sat at a table near to where he was seated. Throughout his meal, one of the men was using a laptop and the other a mobile phone. He became suspicious of these men for a number of reasons, including that they sat unusually close to him in an otherwise near-empty restaurant. He therefore asked the restaurant's manager about the men, and was told that the manager had never seen them before, that they had arrived earlier that day, and that they were "very interested" in him. The RAPOC further pleads that the two men, who are said to be Diligence operatives, arrived at the lobby of the hotel at approximately 10.30am on 4 February 2019, and waited for Mr Gerrard to arrive. As Mr Gerrard did not arrive until about 1pm he cannot have seen this himself, and the obvious implication is that this is something that he learned from the hotel after he had spoken to the restaurant manager. The pleaded case is that the men must have learned about the booking by some means in advance of Mr Gerrard setting off for the venue (as they arrived long before he arrived), and that it is to be inferred that the two men sat near to his table and utilised the laptop and the mobile phone for the purpose of "observing [his] behaviour, demeanour and associations, and monitoring and recording the same". On the face of it, Mr Gerrard learned of all these matters as and when it occurred, or else (so far as concerns the fact that they cannot have known that he was in the restaurant by following him having regard to the time when two men arrived in the lobby of the hotel) very shortly after this conduct occurred. Even if it is assumed that the men were attempting to act covertly, given that Mr Gerrard nevertheless plainly became aware of their conduct and its implications when or shortly after it occurred, there is no reason why these matters cannot be relied upon as an incident of harassment.
(1) The argument that the possibility that the conduct complained of would be revealed to Mr and Mrs Gerrard can have no bearing on whether the surveillance was "calculated" to cause distress is not unanswerable in light of the analysis above concerning (a) the correct interpretation of section 1 of the PHA and (b) the other pleas contained in paragraph 31 of the RAPOC.
(2) The argument that the pleaded proposition is wrong because it proceeds on the basis that the tort would only be complete on some future occasion is not straightforward, and, in any event, Kellett supports the argument that the crime (or tort) is only complete when the victim learns of the material conduct.
(3) The argument that disclosure in the course of litigation would be subject to immunity from civil suit, with the consequence that conduct revealed in that way may not form the basis of a claim in harassment, is also not straightforward. It seems to me that much may depend on the facts, which have yet to be found. For example, it is not clear to me that the defendant in Kellett would have been able to avoid liability for a series of otherwise harassing allegations against the employee by making those allegations to the employer if, on the facts, he knew or expected that (i) they would not be disclosed to the employee until after she had been dismissed and (ii) then only in the course of proceedings concerning that dismissal between her and her employer.
(1) First, I consider that the proposition that the exercise of a right contained in the Undertakings Consent Order is incapable in principle of amounting to conduct calculated to cause distress and indeed is self-evidently "reasonable" (for the purposes of section 1(3)(c) of the PHA) is far too sweeping. I see no reason, in principle, why the decision by a party in litigation to invoke a provision in a Consent Order could never be calculated to cause distress and/or would always, inescapably, be reasonable.
(2) Second, the argument that "there is no evidence that the letters were in fact calculated to cause distress" and that they "set out entirely proper justifications for the exercise of the right to withdraw" depends on the facts. I consider that the relevant facts cannot be investigated and resolved in such a way or to the extent appropriate to enable summary determination of these issues to be made on the present applications.
(3) Third, the submission that "there is no evidence that Mr and Mrs Gerrard have in fact been caused distress" is misguided. For the purposes of the present application, it is sufficient that they have pleaded that they were caused distress, and that this plea has a real prospect of success. In fact, as pleaded, they complained of being occasioned distress at the time, and this supports their case that this plea is seriously arguable.
(4) Fourth, the submission that if there was anything in this aspect of their case Mr and Mrs Gerrard would have sought an injunction to replace the undertakings that have been withdrawn is a purely forensic point. It cannot justify a ruling that this part of the RAPOC has no real prospect of success.
(5) Fifth, I do not accept the proposition that letters sent on instruction during the course of litigation cannot be the subject of a claim for harassment. It is clear from Iqbal that, in principle, letters sent during the course of litigation are capable of constituting harassment. I cannot see that the fact that such letters are sent "on instruction" by the lay client makes any difference to the principle. For example, if, in Howlett, the defendant had engaged solicitors to write letters which, so far as they were concerned, were perfectly proper and in accordance with his instructions, but which in fact "twisted the knife" in the claimant, I see no reason why the defendant should be permitted to "twist the knife" with impunity simply because he elected to correspond with the claimant though the medium of solicitors rather than to do so directly.
(6) Sixth, while I agree with Mr de la Mare, as indeed accords with the sentiments expressed in Iqbal, that the court should be slow to find that correspondence passing between reputable solicitors in the course of hostile litigation is capable of amounting to the tort (and crime) of harassment, I do not agree that either the invocation of ECHR rights or a purposive construction of sections 1(3)(a) to (c) of the PHA "prevent[s] any claim of harassment [from] arising out of the conduct of litigation", or requires at the very least that in the case of such correspondence the claimant must show that the correspondence is actuated by malice. Nor do I agree that if Mr de la Mare's analysis is rejected not only would solicitors have to fear criminal liability as a result of their conduct of litigation, but also it would mean that a variation/withdrawal mechanism in an Order like the Undertakings Consent Order could never in fact be lawfully operated. These submissions, again, are far too extreme. If the lay client takes the opportunity to harass and cause harm to the opposing party through the medium of correspondence which he causes to be sent, there is, as I see it, no reason in principle why the victim should be denied relief merely because of the interpolation of solicitors in the chain of events. In that situation, however, the solicitors themselves will have done nothing wrong. They therefore have nothing to fear, whether by way of civil or criminal liability. If necessary, they will be able to say that they have acted reasonably, and to rely upon section 1(3)(c). To recognise the possibility that the operation of a variation or withdrawal provision in a Consent Order may, depending on the circumstances, be capable of forming part of a material course of conduct for the purposes of the law of harassment plainly does not mean that such a provision could never be lawfully operated. This is a floodgates/doomsday scenario argument that cannot be conclusive.
" Potter LJ in Rall v Hume [2001] 3 All ER 248 commenced by saying at 254:
"In principle the starting point on any application of this kind must be that, where video evidence is available which, according to the defendant, undermines the case of the claimant to an extent that would substantially reduce the award of damages to which she is entitled, it will usually be in the overall interests of justice to require that the defendant should be permitted to cross-examine the claimant and her medical advisers upon it " (Emphasis added.)
As the Strasbourg jurisprudence makes clear, the Convention does not decide what is to be the consequence of evidence being obtained in breach of Article 8: see Schenk v Switzerland (1988) 13 EHRR 242 and PG and JH v United Kingdom The Times, 19 October 2001, para 76. This is a matter, at least initially, for the domestic courts. Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with the overriding objectives set out in CPR r 1.1 in the exercise of its discretion under rule 32.1, then it is required or it is necessary for the court to make that order
The court must try to give effect to what are here the two conflicting public interests. The weight to be attached to each will vary according to the circumstances. The significance of the evidence will differ as will the gravity of the breach of Article 8, according to the facts of the particular case. The decision will depend on all the circumstances. Here, the court cannot ignore the reality of the situation. This is not a case where the conduct of the defendant's insurers is so outrageous that the defence should be struck out. The case, therefore, has to be tried. It would be artificial and undesirable for the actual evidence, which is relevant and admissible, not to be placed before the judge who has the task of trying the case "
"There are, in my view, a number of principles or factors which have to be taken into account. They include:
(a) the interests of the public that in litigation the truth should be revealed, coupled in this case with the statutory duty placed on the court to determine an application for ancillary relief by reference to all the circumstances of the case;
(b) the interests of the public that the courts should not acquiesce in, let alone encourage, a party (or anyone on their behalf) to use irregular means to obtain information;
(c) the effect on litigation generally of the conduct of the parties;
(d) the wife's right to a fair trial, in particular to have her application determined by reference to the true position;
(e) the husband's right to respect for his private life and correspondence and his right not to have them excessively and unfairly invaded through, for example, self-help;
(f) the husband's right to a fair trial by ensuring, so far as practicable, that the parties are on an equal footing and that the wife does not gain an unfair advantage through the use of irregularly obtained information.
The weight to be attached to these respective factors will depend upon the circumstances of each case balancing, in particular, each party's right to a fair trial and the Article 8 rights of the party from whom the information has been obtained.
The product of balancing these factors will vary from case to case."
"B. The proceedings before the Labour Court
10 The Labour Court found that the defendant party had been entitled to dismiss the applicant without notice. It considered that the defendant party had been authorised to observe the applicant by means of covert video surveillance and to use the recording obtained thereby. The losses discovered in the drinks department during stocktaking and the irregularities during the applicant's working time had constituted sufficient grounds for the defendant party to order her surveillance. The defendant party's property rights had been seriously interfered with.
11 In case of the covert video surveillance of an employee on suspicion of theft, the employer's fundamental right to respect for his property rights had to be weighed against the employee's fundamental right to privacy vis-ΰ-vis third persons, including his employer or his colleagues. Special circumstances were necessary to justify an interference with the employee's right to privacy, which had to be proportionate.
12 Weighing these competing interests in the present case there were no other means to protect the defendant party's property rights. The surveillance had not been random, but carried out following suspicions of theft against two employees There was no risk of the records being used in a different manner.
C. Proceedings before the Labour Court of Appeal
15 The Labour Court of Appeal endorsed the Labour Court's finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desk area of the drinks department. Her dismissal without notice had been justified as, following the examination of the videotapes in the proceedings, the applicant had stopped contesting that she had taken money from the till on several occasions.
17 The Labour Court of Appeal further considered that it had not been necessary to take further evidence in the proceedings, in particular to play the videotapes, after the applicant had stopped contesting having taken money from the till and having put it in her pockets on several occasions. As this fact alone justified the applicant's dismissal without notice, the use of the impugned videotapes as evidence in the proceedings had not been necessary. Even assuming that the defendant party had illegally obtained knowledge of the fact that the applicant had taken money from the till and even if this evidence were excluded, the defendant party had not been prevented from alleging this issue and the applicant had been obliged to reply truthfully.
D. Proceedings before the Federal Labour Court
21 the Labour Court of Appeal had left open whether the video surveillance of the applicant had been lawful and whether the evidence obtained thereby should have been used in the proceedings before the labour courts. It had instead based its judgment on facts uncontested between the parties. As it had considered the applicant's dismissal lawful, it had also considered her claim for damages ill-founded. The lawfulness of the video surveillance had therefore been irrelevant to the outcome of the proceedings.
E. Proceedings before the Federal Constitutional Court
22 She argued, in particular, that her right to privacy had been breached by the unlawful covert video surveillance, by the processing of the data obtained thereby and by their use in the proceedings before the labour courts, which had refused to order the destruction of the video recording
23 It found that the applicant's complaint had no prospects of success as there was nothing to indicate that her fundamental rights had been violated by the decisions of the labour courts.
THE LAW
I. Complaint under article 8 of the Convention
34 In the applicant's submission, the covert video surveillance, ordered by her employer and carried out by a detective agency, and the recording and use of the data obtained thereby in the proceedings before the domestic courts had breached her right to privacy under Article 8
A. Applicability of Article 8
36 The Court reiterates that the concept of private life extends to aspects relating to personal identity, such as a person's name or picture (see Schussel v Austria (42409/98) February 21, 2002; and Von Hannover v Germany (2005) 40 EHRR 1 at [50]). It may include activities of a professional or business nature and may be concerned in measures effected outside a person's home or private premises (compare Peck v United Kingdom (2003) 36 EHRR 41 at [57][58]; Perry v United Kingdom (2004) 39 EHRR 3 at [36][37] (extracts); and Benediktsdottir v Iceland (38079/06) June 16, 2009 ).
37 In the context of the monitoring of the actions of an individual by the use of photographic equipment, the Court has found that private-life considerations may arise concerning the recording of the data and the systematic or permanent nature of the record (compare PG v United Kingdom (2008) 46 EHRR 51 at [57]; Peck at [58][59]; and Perry at [38]). It further considered relevant in this connection whether or not a particular individual was targeted by the monitoring measure (compare Rotaru v Romania (28341/95) May 4, 2000 at [43][44]; Peck at [59]; and Perry at [38]) and whether personal data was processed or used in a manner constituting an interference with respect for private life (see, in particular, Perry at [40][41]; and I v Finland (2009) 48 EHRR 31 at [35]). A person's reasonable expectations as to privacy is a significant though not necessarily conclusive factor (see Halford v United Kingdom (1997) 24 EHRR 523 at [45]; and Perry at [37]).
38 The Court notes that in the present case a video recording of the applicant's conduct at her workplace was made without prior notice on the instruction of her employer. The picture material obtained thereby was processed and examined by several persons working for her employer and was used in the public proceedings before the labour courts. The Court is therefore satisfied that the applicant's "private life" within the meaning of Article 8(1) was concerned by these measures.
B. Compliance with Article 8
41 The Court reiterates that, although the purpose of art.8 is essentially to protect the individual against arbitrary interference by the public authorities, it does not merely compel the state to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover at [57]; I v Finland at [36]; KU v Finland (2009) 48 EHRR 52 at [42][43]; and Benediktsdσttir ). The boundary between the state's positive and negative obligations under Article 8 does not lend itself to precise definition. In both contexts regard must be had to the fair balance that has to be struck between the competing interestswhich may include competing private and public interests or Convention rights (see Evans v United Kingdom (2006) 43 EHRR 21 at [75] and [77])and in both contexts the state enjoys a certain margin of appreciation (see Von Hannover; Reklos v Greece (1234/05) January 15, 2009 at [36] (extracts); and Benediktsdσttir ).
43 In the present case, the Court therefore has to examine whether the state, in the context of its positive obligations under Article 8, has struck a fair balance between the applicant's right to respect for her private life and both her employer's interest in protection of its property rights, guaranteed by Article 1 of Protocol No.1 to the Convention, and the public interest in the proper administration of justice.
44 the Court finds that the Federal Labour Court, in its case law developed important limits on the admissibility of such video surveillance which safeguarded employees' privacy rights against arbitrary interference (see "Relevant domestic law and practice" above). In particular, an employer was only authorised to set up the video surveillance of an employee at his or her workplace if there was a prior substantiated suspicion that the employee had committed an offence and if such surveillance was altogether proportionate to the aim of investigating the offence at issue Moreover, it takes the view that a covert video surveillance at the workplace following substantiated suspicions of theft does not concern a person's private life to an extent which is comparable to the affection of essential aspects of private life by grave acts in respect of which the Court has considered protection by legislative provisions indispensable (see above).
45 In these circumstances, the Court is satisfied that, at least at the relevant time, respect for private life in the relations of the applicant and her employer in the context of a covert video surveillance could still adequately be protected by the domestic courts' case law, without the state having been obliged to set up a legislative framework in order to comply with its positive obligation under Article 8.
46 In examining the manner in which the domestic courts applied this case law in the concrete circumstances of the applicant's case and weighed the competing interests at issue, the Court observes, on the one hand, that the covert video surveillance of an employee at his or her workplace must be considered, as such, as a considerable intrusion into the employee's private life. It entails a recorded and reproducible documentation of a person's conduct at his or her workplace, which the employee, being obliged under the employment contract to perform the work in that place, cannot evade. However, as noted by the German courts, the video surveillance of the applicant was only carried out after losses had been detected during stocktaking and irregularities had been discovered in the accounts of the drinks department in which she worked, raising an arguable suspicion of theft committed by the applicant and another employee, who alone were targeted by the surveillance measure.
47 The Court further notes that the domestic courts were aware that the surveillance measure was limited in timeit was carried out for two weeks. They had also taken note of the fact that the measure was restricted in respect of the area it covered in that it did not extend to the applicant's workplace in the supermarket and the drinks department as a whole, but covered only the area behind and including the cash desk, the cashier and the area immediately surrounding the cash desk which, moreover, could not be considered a particularly secluded place as the drinks department as such was accessible to the public.
48 The domestic courts further underlined that the visual data obtained were processed by a limited number of persons working for the detective agency and by staff members of the applicant's employer. They were used only for the purposes of the termination of the employment relationship with the applicant, including the proceedings the applicant brought in this respect in the labour courts. The interferences with the applicant's private life were thus restricted to what was necessary to achieve the aims pursued by the video surveillance.
49 The domestic courts further gave weight to the fact that the employer, on the other hand, had a considerable interest in the protection of its property rights under Article 1 of Protocol No.1. It must be considered essential for its employment relationship with the applicant, a person to whom it had entrusted the handling of a till, that it could rely on her not to steal money contained in that till. The Court further agrees with the labour courts' finding that the employer's interest in the protection of its property rights could only be effectively safeguarded if it could collect evidence in order to prove the applicant's criminal conduct in proceedings before the domestic courts and if it could keep the data collected until the final determination of the court proceedings brought by the applicant. This also served the public interest in the proper administration of justice by the domestic courts, which must be able to establish the truth as far as possible while respecting the Convention rights of all individuals concerned. Furthermore, the covert video surveillance of the applicant served to clear from suspicion other employees who were not guilty of any offence.
50 In respect of the balance struck between the two competing interests, the Court further observes that the domestic courts considered that there had not been any other equally effective means to protect the employer's property rights which would have interfered to a lesser extent with the applicant's right to respect for her private life. Having regard to the circumstances of the case, the Court agrees with this finding. The stocktaking carried out in the drinks department could not clearly link the losses discovered to a particular employee. Surveillance by superiors or colleagues or open video surveillance did not have the same prospects of success in discovering a covert theft.
51 Having regard to the foregoing, the Court concludes in the present case that there is nothing to indicate that the domestic authorities failed to strike a fair balance, within their margin of appreciation, between the applicant's right to respect for her private life under Article 8 and both her employer's interest in the protection of its property rights and the public interest in the proper administration of justice."
(1) First, some of those pleas relate to matters which happened in this jurisdiction, such as the advance acquisition of information about the holiday, and the boarding by Diligence operatives of the same flight from England as Mr and Mrs Gerrard took. They are therefore relevant and admissible even if the territoriality point is right.
(2) Second, the events which are alleged to have occurred in the Caribbean are relevant to Mr and Mrs Gerrard's case that, if this is necessary for their claim, they are able to establish that subsequent acts of surveillance were likely to be discovered by them. They are therefore relevant and admissible even if they are not themselves actionable.
(3) Third, because these events are relevant anyway to Mr and Mrs Gerrard's case (discussed below) that ENRC and Diligence are unable to rely upon litigation privilege in the light of the iniquity exception. In this regard, foreign criminality is pleaded in the RAPOC as to aspects of the activities of Diligence's operatives in the Caribbean, and it is part of the pleaded Reply of Mr and Mrs Gerrard that this is sufficient to engage the iniquity exception. Mr and Mrs Gerrard rely on the decision of Rix J in Dubai Aluminium v Al-Alawi [1999] 1 WLR 1964. In that case, agents employed by the claimant obtained information about the defendant in circumstances where "very strong inferences were to be drawn that the information had been obtained by means of false representation and impersonation, and that criminal offences had been committed, either in England under the Data Protection Act 1984 or in Switzerland under the banking secrecy laws". Rix J held that this conduct engaged the iniquity exception (at 1968E-F). Rix J further observed (at 1969E-F):
"It seems to me that if investigative agents employed by solicitors for the purpose of litigation were permitted to breach the provisions of such statutes or to indulge in fraud or impersonation without any consequence at all for the conduct of the litigation, then the courts would be going far to sanction such conduct. Of course, there is always the sanction of prosecutions or civil suits, and those must always remain the primary sanction for any breach of the criminal or civil law. But it seems to me that criminal or fraudulent conduct for the purposes of acquiring evidence in or for litigation cannot properly escape the consequence that any documents generated by or reporting on such conduct and which are relevant to the issues in the case are discoverable and fall outside the legitimate area of legal professional privilege."
(v) The contention that the proposed amendments are embarrassing
"(1) The Claimants clearly have not taken particular care when it comes to pleading their case of harassment as against Diligence Most obviously:
(a) through the proposed amendments to §31, the Claimants allege that Diligence 'has at all times known or ought to have known' that the surveillance activities it is alleged to have pursued amounted to harassment 'of the Claimants and/or Mr Gerrard';
(b) in support of this allegation, reliance is then placed on a number of alleged investigations/surveillance activities by ENRC and a third party company, Black Cube, and also on the Jones Day Letters (see RAPOC, §§31(a), (e)(i), the second half of (e)(ii), and (f)-(i));
(c) however, no attempt is made in the RAPOC to explain how, on the Claimants' case, these particular alleged investigations/surveillance activities could have resulted in Diligence having the requisite "guilty mind" or indeed could have had any bearing on Diligence's state of knowledge at all.
(2) Moreover, it is simply not open to the Claimants to plead allegations of harassment as against Diligence on a speculative 'and/or' basis, as they seek to do in proposed new §31(e). Allegations amounting to allegations of criminal conduct should only be pleaded if they are non-speculative and properly evidenced based. This is not an area where the Claimants can properly seek to 'keep their options open' in the pleading by using the 'and/or' formulation. These points apply equally in respect of the opening paragraph of RAPOC, §31, where it is alleged that the Defendants' acts amounted to harassment of 'the Claimants and/or the First Claimant' (emphasis added).
(3) These inadequacies are not merely minor pleading infelicities. They go to the heart of the Claimants' case against Diligence, on the critically important guilty mind issue, and should not be tolerated by the Court."
THE LITIGATION PRIVILEGE ISSUE
(i) How the issue arises
(1) At [13]-[14] and at [24]-[26] of its Amended Defence, ENRC sets out its case that the engagement of Black Cube and Diligence to carry out the investigation into Mr Gerrard was for the dominant purpose of litigation, and thus that all documents created during the course of that investigation are subject to litigation privilege, including without limitation (see [25] of ENRC's Amended Defence):
"(1) The instructions provided to Black Cube and Diligence by ENRC;
(2) All information gathered pursuant to those instructions including any personal data regarding [Mr and Mrs Gerrard] thereby obtained;
(3) Communications between Black Cube, Diligence, and/or ENRC; and
(4) Documents created using the information gathered during the course of the Investigation."
(2) At [8] of the Reply, Mr and Mrs Gerrard deny that litigation privilege applies. This contention is advanced on three grounds: (a) the documents were generated as a result of iniquitous conduct, and thus the iniquity exception to privilege applies; (b) the documents generated by the surveillance cannot be confidential "vis-a-vis [them]"; and (c) the documents were not generated for the dominant purpose of litigation.
(3) The first two of these allegations are bad in law or otherwise stand no real hope of success, and thus should be struck out.
(ii) The submissions of ENRC and Diligence
(1) The "iniquity" exception to privilege was established in connection with legal advice privilege, and provides that communications between a client and a solicitor made for a criminal or fraudulent purpose cannot be confidential and thus subject to privilege (JSC BTA Bank v Ablyazov [2014] 2 CLC 263, Popplewell J at [76]).
(2) It is "only in very exceptional circumstances" that the privilege can be displaced in this way (Derby & Co Ltd v Weldon (No7) [1990] 1 WLR 1156, Vinelott J at 1159).
(3) The iniquitous conduct that may give rise to the exception is limited to crime, fraud or dishonesty. In BBGP Managing General Partner Ltd v Babcock & Brown Global Partners [2010] EWHC 2176 (Ch); [2011] Ch 296, Norris J reviewed the relevant authorities and concluded that, while the authorities have expanded the type of conduct that may attract the exception beyond crime and fraud per se, the iniquity exception applied only in cases where:
" the wrongdoer has gone beyond conduct which merely amounts to a civil wrong; he has indulged in sharp practice, something of an underhand nature where the circumstances required good faith, something which commercial men would say was a fraud or which the law treats as entirely contrary to public policy."
(4) In Holyoake v Nicholas Candy [2017] EWHC 52 (QB), Warby J at [90]-[95] refused to treat the iniquity exception as being sufficiently expansive to include acts allegedly amounting to unlawful surveillance.
(5) Where the iniquitous conduct relied upon is the conduct alleged in the civil claim, the party disputing privilege must show a "strong prima facie case" of criminal conduct in order to defeat privilege at an interlocutory stage. See Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734, Longmore LJ at [42]:
"the fraud exception can only be used in cases in which the issue of fraud is one of the issues in the action where there is a strong (I would myself use the words "very strong") prima facie case of fraud, as there was in Dubai Aluminium Co Ltd v Al-Alawi [1999] 1 WLR 1964."
(6) Where iniquity is established, the rule only deprives the disclosing party of privilege in respect of documents that were created as a result of (or reported on) the iniquitous conduct (Derby v Weldon; R v Gibbins [2004] EWCA Crim 311 CA at [49]; and per Lord Goff in R v Central Criminal Court; Ex parte Francis & Francis [1989] 1 AC 346, at 396397). Thus, in Dubai Aluminium, documents had been obtained in circumstances where there was a "strong prima facie case" that the act of obtaining the documents itself amounted to a crime under both English and Swiss law. Rix J found that, in those circumstances, a party was entitled to "any documents generated by or reporting on" the criminal conduct.
(1) The following allegation in [8] of the Reply "during the course of and/or for the purposes of surveillance activities that were unlawful and in certain cases involved dishonest conduct, as set out in the Particulars of Claim and at paragraphs 8(c) to 8(e)" constitutes an assertion that the allegations of mere civil wrongdoing set out in the Particulars of Claim (as opposed to the allegations of criminal wrongdoing referred to in paragraphs 8(c) to 8(e) of the Reply) are sufficient to engage the iniquity principle, which is wrong in law.
(2) Mr and Mrs Gerrard have not alleged any form of criminal conduct which is sufficient to engage the iniquity exception. In particular, as the civil claim for harassment is misconceived as a matter of law, the allegation that the conduct complained of constituted a criminal act pursuant to section 2(1) of the PHA is also misconceived.
(3) As the allegation that the conduct complained of was capable of constituting criminal conduct is fanciful, Mr and Mrs Gerrard cannot satisfy their burden of establishing a "strong prima facie case" in this regard.
(4) In any event, the iniquitous conduct must be causative of the relevant documents being obtained by the disclosing party. The fact that surveillance activities which were otherwise lawful were also ex hypothesi harassing of Mr and Mrs Gerrard does not mean that any documents generated were generated by the harassment. Unlike in Dubai Aluminium (where the documents were only obtained as a result of a criminal or fraudulent act) there is nothing unlawful about covert surveillance per se. The fact that a crime was committed that is in some way related to the surveillance, but which was not itself causative of the documents being obtained, does not remove the privilege that would otherwise attach to those documents. For example, if a private investigator following a target committed a speeding offence that would not render photographs obtained by the investigator during the course of that surveillance the product of iniquity to which no privilege could attach (even where such photographs would not have been obtained but for the speeding). This is particularly so where the criminal conduct was allegedly carried out by a party (Diligence) other than the party asserting privilege (ENRC).
(5) As to the actions of the Diligence operatives in seeking to gain entry to the Caribbean holiday island, Mr and Mrs Gerrard cannot establish a "strong prima facie case" that the alleged conduct would constitute a crime under the law of St Lucia. The allegation regarding Article 22 to Part 2 of Schedule 3 of the Customs (Control and Management) Act, Cap 15.05 applies to "Nightscope binoculars and similar night vision instruments or apparatus of a kind generally used by the armed forces", and does not apply merely to "cameras adapted for night vision use". In any event, as Mr and Mrs Gerrard's own pleaded case is that Diligence's operatives failed in their alleged efforts to carry out surveillance of them on the island, the allegedly criminal conduct was not causative of any relevant documents being created, and would be hopelessly remote with regard to any documents that were created by Diligence in the course of other surveillance (particularly given that the allegedly criminal conduct was carried out by Diligence and not ENRC).
(1) Mr and Mrs Gerrard have not established that the acts that they claim to be criminal under the law of St Lucia are in fact criminalised under that law (and this is an issue on which they bear the burden of proof).
(2) Moreover, their case with respect to these allegations is self-defeating: it is to the effect that the Diligence operatives were frustrated in their efforts to carry out surveillance on Mr and Mrs Gerrard on the private island, which itself presupposes that there are no documents in existence in respect of which the alleged criminal conduct could be said to be causally relevant.
(3) Further and in any event, even if the alleged acts occurred and were criminal in nature, under the law of St Lucia, and even if thereafter Diligence had conducted surveillance of them on holiday on the island, so as to generate surveillance records, Mr and Mrs Gerrard would still have no viable case on the application of the iniquity principle. This is because the criminal acts relied on for these purposes would plainly be too remote from the surveillance activities themselves. On this point, it is important to recall that the right to legal privilege is a fundamental human right: that right cannot be said to fall away simply because a surveillance agent, at a time and place that is distant from the actual surveillance activities themselves, commits an incidental criminal act. On the case of Mr and Mrs Gerrard, the iniquity exception would be engaged where (for example) a covert surveillance agent accidentally went over the speed limit when following a target, which cannot be the right result.
(4) The alleged facts of the present case are notably a world away from those of Dubai Aluminium.
(5) All these points apply with even greater force given that this is a case where it is not alleged that ENRC was itself complicit in the alleged wrongdoing.
"First and foremost, the argument founders on the facts, for substantially the same reasons as set out above. The court will not set aside a claim to LPP on the basis of the iniquity principle unless there is at least a prima facie case of wrongdoing. There is no such case. There has been much talk in the course of submissions about the evils of surveillance, but the evidence does not support the conclusion that USG engaged in any surveillance. There is no worthwhile evidence that the firm did more than carry out investigation There is no direct evidence as to the nature of the investigation undertaken by USG [and no] inferential case that USG's investigation was unlawful".
(iii) The submissions of Mr and Mrs Gerrard
(1) Litigation privilege features in the pleadings in this case, in brief, because ENRC and Diligence contend that they are unable to admit or deny much of Mr and Mrs Gerrard's pleaded case on the ground of litigation privilege. Specifically, they contend that ENRC engaged Diligence for the dominant purpose of the Litigation, and that "the documents created in the course of that engagement including the instructions provided by ENRC, the product of the engagement and any personal data regarding [Mr and Mrs Gerrard] thereby obtained by ENRC are subject to legal professional privilege" (see [2](4) of ENRC's Defence; and, further, [24]-[26] of ENRC's Defence, and [7]-[10], [17] of Diligence's Defence).
(2) Further, the Defences make litigation privilege a substantive issue in the claim to be determined at trial. Thus: (a) ENRC disputes Mr and Mrs Gerrard's claim to the delivery up of documents relating to them on grounds which include that many such documents will be privileged (see [65](1) of ENRC's Defence); and (b) Diligence denies that it has wrongly failed to comply with Mr Gerrard's subject access requests under the Data Protection Act 1998, Data Protection Act 2018 and the General Data Protection Regulation on grounds including that the requested data was privileged (see [45] and [49]-[51] of Diligence's Defence).
(3) It is in response to these pleas that Mr and Mrs Gerrard address the subject of litigation privilege in the Reply. In [8] of the Reply, they dispute the pleaded assertions of litigation privilege on three grounds (as identified by Mr de la Mare).
(4) Further, the Reply does not plead to the invocation of privilege by ENRC and Diligence in relation to delivery up and Mr Gerrard's subject access requests. Accordingly, pursuant to CPR 16.7(2), ENRC and Diligence are required to prove those allegations at trial.
(1) It is settled law (see Starbev GP v Interbrew Central European Holding [2013] EWHC 4038, Hamblen J (as he then was) at [11] to [13] and the cases there cited) that: (a) the party claiming privilege has the burden of proof to establish the claim; (b) elements of a claim to privilege (such as whether the relevant communication was for a privileged purpose) are facts which must be proved by evidence; (c) the claiming party's statement that the relevant communication is privileged is not determinative, and the Court will subject the evidence in support of the claim to "anxious scrutiny"; and (d) in certain circumstances the Court may inspect the relevant communication to determine whether it is in fact privileged as claimed.
(2) These principles underlie the procedure by which privilege over documents is claimed: (a) when giving disclosure, the party claiming privilege must disclose the relevant documents but indicate in its disclosure list that it claims a right to withhold inspection of the documents (CPR 31.10(4)), and state the grounds on which it claims that right (CPR 31.19(3)(b)); (b) while the general practice is to describe such documents compendiously, the Court can order the claiming party to provide a more detailed description of the relevant documents - sometimes known as a 'privilege log' - which may include information about the date of the documents and their recipients (see Hollander, Documentary Evidence, 13th Edition, §15-07); and (c) the other party can then consider the claim to privilege, and may make an application contesting the claim (CPR 31.19(5)).
(3) At the disclosure stage in the present claim, even if the harassment plea is struck out, the remainder of the pleaded claims (for trespass, data protection breaches, and misuse of private information) will subsist, and the parties will be obliged to give disclosure in relation to them. At that point (leaving aside the Strike Out Applications) ENRC and Diligence will make their privilege claims; and it will be open to Mr and Mrs Gerrard to challenge all or some (or none) of those claims.
(4) The Strike Out Applications seek to circumvent the Court's usual process and have questions of privilege decided in the abstract, before any specific claims to privilege are made. That is wrong in principle, and unfair to Mr and Mrs Gerrard.
"communications between parties or their solicitors and third parties for the purpose of obtaining information or advice in connection with existing or contemplated litigation are privileged, but only when the following conditions are satisfied: (a) litigation must be in progress or in contemplation; (b) the communications must have been made for the sole or dominant purpose of conducting that litigation; (c) the litigation must be adversarial, not investigative or inquisitorial."
(1) It has been established since R v Cox and Railton [1884] 14 QBD 153 that no privilege attaches to communications made as part of or in furtherance of a crime, fraud or other iniquity. While this is a described as an 'exception' to privilege, the label is, strictly, inapt because the illegal object of communications falling within it mean they are never privileged in the first place: see, for example, Thanki, Law of Privilege, 3rd Edition, at §8-001 and §8-002; and Hollander, Documentary Evidence, 13th Edition, at §25-10.
(2) The exception applies to litigation privilege as well as legal advice privilege, including where the iniquity alleged is the same wrongdoing as that alleged in the litigation. That is to say, there does not need to be any wrongdoing independent of that alleged in the litigation for the exception to apply. But in cases where the iniquity is that alleged in the litigation, the exception will not be engaged unless the party challenging privilege can show a strong, and perhaps a very strong, prima facie case that the wrongdoing was committed: Kuwait Airways Corpn v Iraqi Airways Co (No 6) [2005] 1 WLR 2734 at [42] (Longmore LJ).
(3) The exception is not restricted to criminal or fraudulent conduct, but extends more broadly:
(a) In Crescent Farm (Sidcup) Sports v Sterling Offices [1972] 1 Ch 553 at 565D, Goff J held that while the exception was not engaged by conduct amounting to the torts of inducing a breach of contract or conspiracy, nevertheless "fraud in this connection is not limited to the tort of deceit and includes all forms of fraud and dishonesty such as fraudulent breach of trust, fraudulent conspiracy, trickery and sham contrivances."
(b) In Barclays Bank v Eustice [1995] 1 WLR 1238, it was held that the exception was engaged when debtors entered into an undervalue transaction for the purpose of prejudicing their creditors. Schiemann LJ (with whom Aldous and Butler-Sloss LJJ agreed) rejected a submission that the exception was engaged only where there is dishonesty (at 1250G), and went on to hold that the debtors' purpose of prejudicing their creditors was "sufficiently iniquitous" to engage the exception (at 1252C). Schiemann LJ further expressed the view that his judgment would make it more difficult for individuals to carry out "sharp practice" like that occurring in the case before the Court (at 1252H).
(c) In BBGP Managing General Partner v Babcock & Brown Global Partners [2011] Ch 296, Norris J held that the exception was engaged by conduct amounting to breaches of fiduciary duty, regardless of whether the breaches were motivated by a desire to secure a personal advantage ([63] to [65]). As to the applicable principle, see Norris J at [62] (also cited by Mr de la Mare).
(d) In JSC BTA Bank v Ablyazov [2014] EWHC 2788 at [68], Popplewell J stated that the exception "is not confined to criminal purposes, but extends to fraud or other equivalent underhand conduct which is in breach of a duty of good faith or contrary to public policy or the interests of justice."
(e) See, further, Dubai Aluminium v Al-Alawi [1999] 1 WLR 1964.
(4) Applying these principles, Mr and Mrs Gerrard have at least a real prospect of establishing that the surveillance activities complained of in the present case engage the iniquity exception:
(a) If the allegation that Diligence's surveillance activities amounted to criminal harassment (Reply [8](a)(ii)) is made out, the communications made during the course of, or for the purpose of, the harassment would not be privileged.
(b) It is alleged that the surveillance activities are, taken as a whole, sufficiently wrongful and (in some cases) dishonest as to engage the iniquity exception (Reply [8](a)). Those activities have involved installing highly intrusive camera surveillance equipment at Mr and Mrs Gerrard's home, attempting to conduct surveillance of them while on holiday, lying to immigration authorities, lying to former employees of Mr Gerrard's firm to entice them to sham job interviews for the purposes of obtaining personal information about him, following him by car, and attaching a tracking device to his car. That is a course of deliberate and persistent conduct which could fairly be described as "trickery, dishonesty, sharp practice, underhand or contrary to public policy".
(c) There is a close analogy to the decision in Dubai Aluminium. The allegation that Diligence's activities have involved the commission of criminal offences, breaches of data protection laws, and the use of impersonation relates to conduct which is very similar to that which engaged the exception in that case. It is also relevant in this connection that Dubai Aluminium is described in Hollander, Documentary Evidence, 13th Edition at §25-16 as "an important development in the law" which may lead to a greater tendency for the courts to "enquire as to the sources of information obtained by private investigators".
(d) As regards the attempted holiday surveillance, it is alleged that Diligence's operatives lied to the St Lucia authorities and carried with them unlawful surveillance equipment (Reply §§8(a)(iii) and 8(d)(iii)). Lying in this way to the government authorities of a friendly foreign state could fairly be described as "trickery, dishonesty, sharp practice, underhand or contrary to public policy". Further, the lies amounted to a crime under section 36(1)(e)(ii) of the St Lucia Immigration Act, Cap 10.01 (Reply [8](a)(ii)(2)). This provision applies when a passenger intending to enter St Lucia wilfully gives an untrue answer to a question posed by an immigration officer. Such foreign criminal conduct is plainly capable of engaging the exception. So far as concerns the surveillance equipment, Diligence's operatives attempted to bring a camera adjusted for night vision into St Lucia. It is alleged that doing so amounted to an offence under section 84(2) and article 22 to part 2 of Schedule 3 of the St Lucia Customs (Control and Management) Act, Cap 15.05 (Reply [8](a)(iii)). This prohibits the importation of "[n]ightscope binoculars and similar night vision instruments or apparatus of a kind generally used by the armed forces, para military [or] other law enforcement agencies." Again, foreign criminal conduct of this nature is plainly capable of engaging the exception.
(1) The contention that Diligence's surveillance activities were insufficiently iniquitous is wrong. While it has been questioned whether the exception can apply in cases not involving dishonesty (see, for example, Thanki, Law of Privilege, 3rd Edition, §4.49), Eustice remains binding authority, which has been applied in a number of cases since, including BBGB and Ablyazov. Moreover, in two recent decisions the Court of Appeal declined to reconsider Eustice and, in one of them, indicated that, whatever the broader principle involved, the decision is correct on its own facts: see Z v Z [2018] 4 WLR 52 at [54] to [57]; and Curless v Shell International [2020] ICR 431 at [59]. (I would add that in Re McE [2009] AC 908 the House of Lords referred to Eustice with apparent approval, save only that Lord Neuberger at [109] said that he would leave open the question of whether Eustice was correctly decided.) In any event, Eustice is right in principle: although legal professional privilege is a fundamental right, it is equally important that it should not be used as a cloak to hide or further serious wrongdoing.
(2) As to the St Lucia Customs (Control and Management) Act, it is clear on the face of the statute that cameras adapted for night vision use could be, for example, "night vision apparatus of a kind generally used by law enforcement agencies." In any event, the meaning of a St Lucia statute is a matter for expert evidence on the law of St Lucia, and none has (as yet) been adduced.
(3) The contention that the iniquity exception cannot be engaged because it is not alleged that ENRC was complicit in the wrongdoing of Diligence's operatives is wrong:
(a) First, the RAPOC (at [31]) sets out why both ENRC and Diligence are liable.
(b) Second, as a matter of law, it is sufficient that Diligence acted as ENRC's agent in conducting its surveillance activities: see Dubai Aluminium, in which Rix J held that no privilege applied to documents relating to the claimant's agents' investigations, despite indicating that he was in no position to find exactly what wrongdoing had been committed (at 1968F), and on the basis that it was enough that the investigators were the claimant's agents: "[i]t seems to me that if investigative agents employed by their solicitors ". Alternatively, if that contention is wrong, ENRC's state of mind is a matter for trial, and is not capable of being determined on the Strike Out Applications.
(c) Third, and in any event, it would make no difference if ENRC had no legal or factual connection to the wrongdoing at all, because it is settled that the exception can apply even where the client is wholly innocent, but is used as the tool or a mechanism of a third party seeking to carry out an iniquitous purpose: see, for example, Passmore, Privilege, 4th Edition, at §8-008; Matthews and Malek, Disclosure, 5th Edition, at §11.78; Thanki, Law of Privilege, 3rd Edition, at §4.57. As to this:
(i) The principle emerges from the decision of the House of Lords in R v Central Criminal Court; Ex parte Francis & Francis [1989] 1 AC 346, in which the client consulted a solicitor about transactions funded with money provided to the client by a third party. The case proceeded on the assumptions that: (i) the third party gave the money to the client, a family member, in order to launder the proceeds of drug trafficking; but (ii) both the client and the solicitors were innocent of any wrongdoing (as recorded by Lord Bridge at 369D-E). The majority of the House nevertheless held that the exception applied to documents held by the solicitor in relation to the transactions. As stated by Lord Goff (at 396E), it is "immaterial to that exception whether it is the client himself, or a third party who is using the client as his innocent tool, who has the criminal intention." See also Lord Griffiths at 385B and Lord Brandon at 381C, concurring. The decision in that case concerned the effect of a statutory provision relating to privilege which is not in issue in this case, but Lord Goff was explicit in saying that his judgment covered the common law of privilege (see 395F).
(ii) In Owners of Kamal XXVI v Owners of Ariela [2011] 1 All ER (Comm) 477, the claimant prosecuted a fraudulent claim against the defendant, with financial support from underwriters. After the fraud was discovered the defendants sought a non-party costs order against the underwriters, and in that connection sought the production of documents passing between the underwriters and their solicitors. The defendant made no allegation that the underwriters or their solicitors were complicit in the fraud, but argued that, applying Francis & Francis, the exception applied because they were the innocent tool of the fraudulent claimant. Burton J accepted this argument and ordered the production sought, holding that the underwriters and the solicitors were used as a "mechanism" for the claimant's fraud (at [32]).
(iii) In Accident Exchange v McLean [2018] 1 WLR 26, Andrew Smith J considered Francis & Francis (and other authorities) in detail, and concluded that the hallmark of cases where third party wrongdoing will deprive an innocent client of privilege will be the presence of a relationship or "nexus" between the third party and the client, separate from the client's dealings with the solicitor, which is used by the third party to advance the wrongdoing (at [49]). Such a nexus was present in Francis & Francis (where the client and the wrongdoer were relatives) and Owners of Kamal XXVI (where the client was the wrongdoer's underwriter), but absent from the case before Andrew Smith J.
(d) Applying these principles to the present case, it is at the very least reasonably arguable that the reasoning in Francis & Francis applies, even if ENRC is entirely innocent of any wrongdoing, because: (i) there was a nexus or relationship between the client (ENRC) and the wrongdoer (Diligence), in that ENRC engaged Diligence to carry out the surveillance activities; (ii) Diligence thereupon embarked upon an iniquitous course of conduct to obtain surveillance information about Mr and Mrs Gerrard by unlawful means; and (iii) Diligence used ENRC as a tool or mechanism of its wrongdoing because the wrongdoing was undertaken in return for, and made possible by, the fees (presumably) paid by ENRC to Diligence for its services.
(4) The contention that the iniquity exception cannot be engaged because Mr and Mrs Gerrard cannot establish a very strong prima facie case that the alleged iniquity was committed is misconceived. The Strike Out Applications are made in advance of any specific claims to privilege, whereas questions of whether a strong prima facie case exists fall to be considered when those claims to privilege are made, and if Mr and Mrs Gerrard seek to challenge any of those claims. The unreality and unfairness of the position of ENRC and Diligence is borne out by the consideration that the Court has power, where appropriate, to inspect the documents for which privilege is claimed to determine whether the exception applies, whereas the Court is being invited to conclude that there is insufficiently strong evidence of iniquity to apply the exception at a time when it is in no position to take that approach, as there have been no specific claims to privilege.
(5) The contention that there is no basis on which it could reasonably be inferred that any disclosable document was generated as a result of the allegedly iniquitous conduct concerning the holiday on the island, is, also, misconceived. The Court is in no position on the Strike Out Applications to form any view on the likelihood of whether disclosable documents relating to the island episode exist. In effect, ENRC and Diligence invite the Court to pre-judge the outcome of their disclosure exercises, which is inappropriate. In any event, disclosable documents relating to that episode may exist. Although the attempts of the Diligence operatives to conduct surveillance on the island were unsuccessful, disclosable documents in this category might include communications discussing the travel plans of Mr and Mrs Gerrard, communications discussing Diligence's plan to gain access to the island by means of false pretences, and communications recording what the Diligence operatives said and did in their attempts to gain access to the island.
(6) Finally, as to the argument that the iniquity exception, even if engaged, would apply only to communications which revealed or were the product of the relevant iniquitous conduct:
(a) Mr and Mrs Gerrard accept that there may be documents which, while relating to Diligence's surveillance activities, may not have been generated during the course of, or for the purposes of, the iniquity alleged. However, that is not a reason to grant the Strike Out Applications; instead, it is a further indication of the misconceived nature of those applications. As matters stand, Mr and Mrs Gerrard cannot be specific about the documents engaged by the exception, because there have been no specific privilege claims by ENRC and Diligence. That flows from the context in which the Strike Out Applications are made. Mr and Mrs Gerrard will be in a position to be more specific after the privilege claims are made and they have had the opportunity to scrutinise those claims.
(b) In any event, given the nature of Mr and Mrs Gerrard's allegations, and the means by which Diligence carried out its surveillance activities, there is no reason to believe that any population of documents falling outside the exception is likely to be significant or extensive.
"No privilege attaches to communications between claimant and defendant, or between opposing parties, save for the rather different without prejudice privilege. There can be no confidence in such communications. It follows that there can be no confidentiality and no privilege in notes or reports of matters at which both sides were present".
"real evidence of events which occurred in public. They were not taken in circumstances to which any confidentiality attached. To attach legal professional privilege to these materials would be to accord excessive respect to the adversarial aspects of litigation and insufficient weight to the objective of determining in litigation the facts in issue."
(iv) Discussion and conclusion
"What ought we to do here? Here is a litigation about pedigree and the heirship to a lady who died many years ago; and it is sworn by the Defendant that for the purpose of defending himself against various claimants he has made inquiries, and he has obtained every one of those documents for the purpose of protecting himself, and that he has got them, not himself personally, but that his solicitors have got them, for the purpose of his defence, for the purpose of instructing his counsel, and for the purpose of conducting this litigation on his behalf. Now no case has been quoted where documents obtained under such circumstances have been ordered to be produced. In my opinion it is contrary to the principle on which the Court acts with regard to protection on the ground of professional privilege that we should make an order for their production; they were obtained for the purpose of his defence, and it would be to deprive a solicitor of the means afforded for enabling him to fully investigate a case for the purpose of instructing counsel if we required documents, although perhaps publici juris in themselves, to be produced, because the very fact of the solicitor having got copies of certain burial certificates and other records, and having made copies of the inscriptions on certain tombstones, and obtained photographs of certain houses, might shew what his view was as to the case of his client as regards the claim made against him."
"it is possible for a collection of documents which otherwise would not be privileged to be so where they were obtained by solicitors, or on their behalf, for the dominant purpose of litigation by virtue of the fact that production of the documents could show the line of legal inquiry of the plaintiff's legal team and give clues as to how they will seek to run the litigation."
"It is crucial for the existence of the privilege that the contents of the communication should be confidential. Thus endorsements on counsel's brief as to the order of the court, depositions taken in the presence of the other party in the course of an action (whether filed in court or not), shorthand or other notes of proceedings in open court, or of proceedings at an arbitration between the same parties, and correspondence or notes of meetings or conversations between opposing lawyers are not capable of being covered by privilege, because their contents are not confidential. In Australia both video and audio tapes of non-confidential views and conversations have been held not privileged, even though made for the purpose of obtaining legal advice. But a lawyer's "work product", or other results of the exercise of professional skill and judgment, (e.g. notes of research into or collections of extracts from public documents) can nonetheless be sufficiently confidential as to attract privilege.
Confidential communications made, after litigation is commenced or even contemplated, between: (a) a lawyer and his client, (b) a lawyer and his nonprofessional agent, or (c) a lawyer and a third party, for the sole or dominant purpose of such litigation (whether for seeking or giving advice in relation to it, or for obtaining evidence to be used in it, or for obtaining information leading to such obtaining) are privileged from production. As with "advice" privilege, it is necessary that the communication in question be confidential and the considerations relevant in the context of "advice" privilege will be relevant here also. Thus no communication made by the opposite party can be confidential. Accordingly, no privilege will attach to attendance notes or recordings or transcripts of conversations between the parties, or to video and audio tapes made by one party of the other party "
CONCLUSION
(1) Extracts from the RAPOC
"5. On various dates from at least 1 January 2019, the Second Defendant's Operatives carried out unlawful covert surveillance activity on the Claimants. Pending disclosure and/or the provision of further information, the best particulars that the Claimants are able to give as to the nature and extent of the said activity are set out at paragraphs 7 to 12 below (together, "the Surveillance Activities").
6. The unlawful covert Surveillance Activities include, but is (sic) not limited to:
a. Video camera surveillance of the Claimants' Property as described further at paragraph 7 below.
b. Obtaining advance information about the Claimants' travel arrangements and attempting physical surveillance of the Claimants on holiday as described further at paragraph 8.
c. Physical surveillance of the First Claimant's place of work as described further at paragraph 10 below.
d. Obtaining advance information about the First Claimant's lunch engagement, loitering in a location in which the First Claimant was expected to be present and then physically following and observing him as described further at paragraph 12 below."
"Without the knowledge or consent of the Claimants, the Second Defendant's Operatives installed and operated a covert video camera system at the Claimants' Property for the purposes of monitoring and recording access to and egress from the Claimants' Property and thereby obtaining information about their movements and associations as follows:
a. On a date or dates unknown, the Second Defendant's Operatives entered upon the Claimants' Property and attempted to install a wirelessly-operated video camera.
b. On a date or dates unknown, but from at least 1 January 2019, the Second Defendant's Operatives entered upon the Claimants' Property and installed a wired video camera system.
c. The video camera was installed by means of a tie to a tree branch situated on private land at the main entrance to, and which formed part of, the Claimants' Property. It captured video images in high quality colour, was triggered by movement, and was positioned so as to record the time and date of any and all movements to and from the driveway of the Claimants' Property. It was able to, and did, record: i. vehicle make, model and colour; ii. vehicle registration numbers; iii. facial characteristics of incoming drivers and front passengers; iv. partial facial characteristics of outgoing drivers; and v. appearance, including clothing, demeanour and facial characteristics, of incoming and outgoing pedestrians, cyclists and others.
d. Whilst the video camera did not possess night vision capability, it was able to and did detect movement at night, and recorded the headlights of vehicles emerging from or entering the driveway, thereby recording the date and time of access and egress.
e. The video camera was connected by a cable to a purpose-built hide, approximately 20 metres south of the camera, on neighbouring private land. The hide was situated within a shallow depression in the ground, and covered with chicken wire and foliage. The hide contained a wireless cellular router, 4 tracer batteries, an EE SIM card and a SD data storage card.
f. To avoid detection, the video camera, cable and hide were all concealed by means of sophisticated camouflage.
g. The SIM card was installed for the purpose of enabling remote access to the video camera on a live, real-time basis, so that the Claimants' activities could be observed as they were occurring.
h. The SD data storage card was installed for the purpose of recording and storing video files captured by the camera for retrieval on a periodic basis. It contained a large number of video files dating from 26 March 2019 to 17 April 2019 inclusive and included images as described at (c) and (d) above. In particular, they contained: i. images of each of the Claimants entering and leaving the Claimants' Property; and ii. images of visitors entering and leaving the Claimants' Property, including friends and family members.
i. The video camera system was discovered and reported to the Claimants on 16 April 2019, who subsequently reported it to the police."
"The Second Defendant's Operatives obtained advance information about the Claimants' travel arrangements and attempted physical surveillance of the Claimants on holiday, as follows:
a. In January 2019 the Claimants went on holiday to a private island in the Caribbean archipelago ("the Island") with a number of their friends. The Island's security is provided and maintained by a private security company, and access to the Island is highly limited. One of the only lawful ways to enter the Island is via St Lucia, and travellers are not admitted to the Island unless they can prove pre-booked accommodation. The Claimants selected the Island as a holiday destination in part because it is private, access to it is limited, and security is tight.
b. Travel arrangements were made. These included flights to and from St Lucia via London, both of which were booked by the First Claimant's personal assistant (via a travel agency) on the same occasion, and accommodation at a villa on the Island, which was booked separately by the Second Claimant. The flight details were as follows: i. 12 January 2019 BA flight from London Gatwick (South Terminal) to St Lucia; and ii. 26 January 2019 BA flight from St Lucia to London Gatwick (South Terminal).
c. The Claimants travelled from London to St Lucia on 12 January 2019 as planned. From there they travelled on to the Island. The Second Claimant travelled home from St Lucia to London on 26 January 2019, as planned, while the First Claimant's plans changed such that he travelled back to the UK via New York.
d. On a date or dates unknown to the Claimants, one or more of the Second Defendant's Operatives, without the Claimants' consent, obtained advance information about the flight from London Gatwick to St Lucia, and details of the villa on the Island at which the Claimants were staying. The Claimants do not know what means the First and/or Second Defendant deployed to obtain this information, but reserve the right to rely upon those means in these proceedings as constituting further unlawful acts of misuse of private information and/or pursuant to the Data Protection Act 2018.
e. Thereafter, four of the Second Defendant's Operatives travelled to St Lucia.
f. The identities of the four Second Defendant's Operatives are as follows: (1) Grant Douglas Yates; (2) Sion Thomas Bailey; (3) David John Kell; and (4) Jason Fielding.
g. Two of the Second Defendants' Operatives, Mr Yates and Mr Bailey, travelled to St Lucia on 12 January 2019 on the same flight as the Claimants. As a result, it is to be inferred that they observed and/or monitored and/or recorded the Claimants' activities during the flight, which took approximately 9 hours. The means by which Mr Kell travelled to St Lucia are not known to the Claimants.
h. On 15 January 2019 two of the Second Defendant's Operatives (the Claimants are unable to say which of Mr Yates, Mr Bailey or Mr Kell this was) attempted to gain access to the Island by means of false claims to the St Lucia authorities that they were nephews of the Claimants, to whom they claimed to be making a surprise visit. In doing so, they referred to the Claimants as "David" and "Elizabeth" Gerrard, rather than the names by which the Claimants are generally known (i.e. Neil and Ann), and provided details of the villa that the Claimants were staying in.
i. As travel to the Island is not permitted without pre-booked accommodation, the St Lucia authorities telephoned a friend of the First Claimant who was staying with them and informed him of the above. The friend's suspicions were aroused by the reference to the Claimants by their first, as opposed to middle, names. As a result, the friend informed one of the Claimants' daughters who confirmed that the claims were false. The falsity of the claims was reported back to the St Lucia authorities and the Second Defendant's Operatives were denied entry.
j. The Claimants were informed of the attempt by the Second Defendant's Operatives to gain access to the Island, and of the presence of a third individual on St Lucia, during the course of that same day by the St Lucia authorities, who were alarmed by the attempts, and concerned for the Claimants' safety.
k. On 17 January 2019 Mr Fielding travelled out to St Lucia from London Gatwick, this time with an advance booking to stay at a hotel located on the Island ('the Hotel"). The Hotel booking was made by another of the Second Defendant's Operatives, James McIlroy. In the circumstances it is to be inferred that this last minute, advance booking at the Hotel was made with the intention of securing access to the Island and, in consequence, to the Claimants in the knowledge that at least two of the other three Second Defendant's Operatives had been denied entry by the St Lucia authorities.
l. Mr Fielding was intercepted by the authorities at St Lucia airport and interviewed because the Hotel had alerted them to his impending arrival.
m. On questioning, Mr Fielding refused to explain himself to the authorities other than falsely to claim that he was going on holiday, and that the holiday was being paid for by his employer who he claimed was an extremely rich individual.
n. Upon examination of his effects, Mr Fielding was found to be in possession of a large amount of electronic equipment including a camera adjusted for night vision use. In the circumstances, it is to be inferred that Mr Fielding intended to deploy the equipment for the purposes of observing, monitoring and recording the Claimants' activities and associations, including during the hours of darkness.
o. As a result of his suspicious behaviour, Mr Fielding was denied entry to the Island.
p. The Claimants were informed of Mr Fielding's attempt to gain access to the Island on 17 January 2019.
q. Following their return to the UK, at least two of the Second Defendant's Operatives were traced and interviewed by UK police. During questioning, one of them disclosed that he worked for the Second Defendant and had been tasked to carry out surveillance on the First Claimant to identify his associates. He would not disclose who had instructed the Second Defendant or for what reason."
"On 18 January 2019 an individual who, it is to be inferred, was one of the Second Defendant's Operatives attended at the lobby on the ground floor at the offices of Dechert at 160 Queen Victoria Street, London, UK EC4V 4QQ and proceeded to take photographs of the model of the building located there. The individual left the building when approached by security."
"The Second Defendant's Operatives obtained advance information about the First Claimant's lunch engagement, loitered in the location at which he had booked, and then followed him and observed and monitored him as follows:
a. On a date which the First Claimant cannot recall exactly, but which was shortly prior to 4 February 2019, the First Claimant made a booking for lunch with a friend at Diciannove Italian Restaurant, 19 New Bridge Street, London ("the Restaurant"). The Restaurant is close to the First Claimant's place of work. It is located within the Crowne Plaza Hotel.
b. On a date or dates unknown to the Claimants, one or more of the Second Defendant's Operatives obtained advance information about the First Claimant's lunch booking by some means which are unknown to the Claimants. The Claimants do not know what acts the First and/or Second Defendant carried out to obtain this information, but reserve the right to rely upon those acts in these proceedings as constituting further unlawful acts of misuse of private information and/or pursuant to the Data Protection Act 2018.
c. In consequence, at approximately 10.30am on 4 February 2019, two of the Second Defendant's Operatives attended the lobby of the Crowne Plaza Hotel and waited for the First Claimant to arrive.
d. When the First Claimant arrived at around 1pm, the Second Defendant's Operatives followed him into the Restaurant, which was not busy, walked past 10 to 15 empty tables and sat at a table near to where the First Claimant was seated. Throughout the First Claimant's meal, one of the Second Defendant's Operatives was using a laptop and the other a mobile phone.
e. In the circumstances, it is to be inferred that the two Second Defendant's Operatives sat near to the First Claimant's table and utilised the laptop and the mobile phone for the purpose of observing the First Claimant's behaviour, demeanour and associations, and monitoring and recording the same.
f. The First Claimant's suspicions were aroused by the facts that the men: i. were not wearing suits; ii. were approximately 30 years old and of a physically fit appearance; iii. refused to make eye contact with him; and iv. sat unusually close to him in an otherwise near-empty restaurant. Accordingly, the First Claimant asked the Restaurant's manager about the men and was told that the manager had never seen them before, that they had arrived earlier that day, and that they were "very interested" in the First Claimant."
"12A. On various dates the First Defendant has, through individuals who were at all material times acting under its direction and control and/or acting on its behalf, whether as employees or agents or otherwise ("the First Defendant's Operatives"), carried out unlawful covert surveillance activity on the First Claimant. Pending disclosure and/or the provision of further information, the best particulars that the First Claimant is able to give as to the nature and extent of the said activity are set out at paragraphs (sic) 12B below (together, "the Other Surveillance Activities").
12B. The Other Surveillance Activities are as follows:
a. In January or February 2014 one of the First Defendant's Operatives observed the First Claimant during a meeting at the Goring Hotel, 15 Beeston Place, Westminster, London SW1W 0JW, followed him out of the hotel after the meeting, got into a Volkswagen Golf driven by another of the First Defendant's Operatives and thereafter followed the First Claimant, who had caught a cab, back to his office. The First Claimant knew that the Volkswagen Golf was following him because it did so despite the First Claimant's cab taking various unnecessary route changes on the journey.
b. In 2013 or 2014 one or more of the First Defendant's Operatives placed a tracking device on the First Claimant's car.
c. In December 2013 and January 2014, one or more of the First Defendant's Operatives approached a number of ex-Dechert employees with knowledge of the underlying factual background to the Commercial Court Proceedings, and invited them to attend a series of job interviews. Upon attendance, it became apparent that such interviews were not genuine, and were in fact staged in order to obtain personal information regarding the First Claimant.
[d. and e. deleted]
f. In the circumstances, it is to be inferred that the First Defendant's Operatives carried out the Other Surveillance Activities for the purpose of observing the First Claimant's movements, location, behaviour, demeanour and associations, and monitoring and recording the same."
"The Other Surveillance Activities constitute a course of conduct pursued by the First Defendant and directed at the First Claimant, and the Surveillance Activities constitute a course of conduct pursued by the Defendants and directed at each of the Claimants, with the exception of the matters pleaded at paragraphs 10 above and 12 above, which constitute a course of conduct directed at the First Claimant alone."
"As each Defendant has at all times known or ought to have known, the course of conduct pursued by that Defendant amounts to harassment of the Claimants and/or the First Claimant contrary to sections 1(1) and 3(1) of the Protection from Harassment Act 1997 ("the PHA"). In this regard the Claimants rely on the following facts and matters:
a. As pleaded above, the First Defendant has been seeking to obtain personal information relating to the First Claimant since at least December 2013. The First Defendant has been conducting surveillance in relation to the First Claimant from at least 2014.
b. As pleaded above, the Second Defendant has been conducting surveillance on the First and/or Second Claimant from on or after February 2017 and since at least 1 January 2019.
c. As, it is to be inferred, the Defendants know, any surveillance activity, whether covert or otherwise, carries an inherent and ongoing risk of exposure of the same to the subject of the surveillance, whether at the time or subsequently. In general terms, the longer the surveillance subsists, the greater the risk of discovery, since anyone who begins to suspect that s/he might be subject to surveillance is likely to be alert to any signs of further surveillance. Surveillance by means of the use of devices planted in and around property occupied, or owned, by the subject of the surveillance is particularly susceptible to exposure since such devices can be readily located, especially once the subject of surveillance is on notice that s/he is or might be being surveilled, as is surveillance by physically following a person as they go about their activities.
d. A person who suspects or discovers that they are the subject of surveillance activity is very likely to be alarmed and/or distressed by it.
e. In consequence of the following facts and matters, the First and/or Second Defendant were aware that the First and/or Second Claimant knew or suspected that they were the subject of surveillance activity:
i. Following the incidents set out at paragraph 12B(c) above, on 10 February 2014 Dechert LLP wrote to Black Cube, the private investigation firm which had carried out the interviews, and made it clear that it was aware of the interviews, that they had been procured on false pretences, and that they appeared to have been conducted for the purpose of obtaining confidential information. Given that Black Cube was acting on the instructions of the First Defendant, it is to be inferred that the content of this letter was brought to the First Defendant's attention shortly after it was received by Black Cube.
ii. As pleaded at paragraph 35(a) below, on 7 March 2018 the First Claimant made a Subject Access Request to the Second Defendant in respect of personal data held by it about the First Claimant as a result of private investigatory work that the First Claimant believed had been carried out by it. The First Claimant also made a Subject Access Request to Black Cube on the same date. Given that the Second Defendant and Black Cube were acting on the instructions of the First Defendant, it is to be inferred that the content of each requests was brought to the First Defendant's attention shortly after it was received by the Second Defendant/Black Cube.
iii. As pleaded at paragraphs 8(h) and (i) above, the Second Defendant's Operatives were denied entry to the Island after falsely claiming to be nephews of the Claimants on 15 January 2019. In the circumstances:
1. It is to be inferred that the Second Defendant knew that it was likely that these matters would have been reported to the Claimants by the St Lucian authorities on or shortly after that date.
2. It is to be inferred that the Second Defendant informed the First Defendant that the Second Defendant's operatives had been denied entry to the Island and why; therefore the First Defendant must have known that it was likely that these matters would have been reported to the Claimants on or shortly after that date.
iv. As pleaded at paragraphs 8(k) to (o) above, Mr Fielding was denied entry to the Island on 17 January. In the circumstances, and in particular in light of the facts and matters pleaded at sub-paragraph (iii) above:
1. It is to be inferred that the Second Defendant knew that it was likely that the denial of entry of Mr Fielding and reasons for it would have been reported to the Claimants on or shortly after that date;
2. It is to be inferred that the Second Defendant informed the First Defendant that Mr Fielding had been denied entry to the Island and why; therefore the First Defendant must have known that it was likely that this would have been reported to the Claimants on or shortly after that date.
v. As pleaded at paragraph 10 above, the Second Defendant's Operative was observed at the First Claimant's place of work on 18 January 2019 and left when approached by security. In the circumstances:
1. It is to be inferred that the Second Defendant knew that this activity of its operative would be reported to the Claimants on or shortly after that date;
2. It is to be inferred that the Second Defendant informed the First Defendant that its operative had been intercepted whilst photographing the model of the building and therefore the First Defendant must have known that it was likely that this would have been reported to the Claimants on or shortly after that date.
vi. On a date unknown between 15 January 2019 and 17 May 2019 two of the Second Defendant's Operatives who had attempted to gain access to the Claimants on the Island were traced and interviewed by Sussex Police in relation to incidents of surveillance against the Claimants. During those interviews they were asked whether they were instructed, or intended, to intimidate the First Claimant or were instructed to cause him or his family harm. Therefore:
1. If (which is denied) the Second Defendant was not already aware by the time of these interviews that the Claimants knew or suspected that they had been under surveillance, the Second Defendant would have become aware of this as a result of the interviews;
2. It is to be inferred that the Second Defendant informed the First Defendant about the police interviews when they occurred; and therefore if (which is denied) the First Defendant did not already know or suspect by the time of the interviews that the Claimants were aware they had been under surveillance, the First Defendant would have learned this at the time of the interviews or shortly thereafter.
f. The Defendants therefore knew that the Claimants suspected or were aware they were under surveillance as a result of the matters pleaded in paragraph 31(e) above, from February 2014 onwards, alternatively from each of the dates of knowledge pleaded in paragraph 31(e). Despite this, the Defendants persisted in conducting further acts of surveillance pleaded in these Particulars of Claim.
g. Further and in any event, on the Defendants' case, all covert surveillance activity was carried out with the aim of collecting evidence for the purpose of the Proceedings (as defined at paragraphs 2(1) of the First Defendant's Defence). In the premises the Defendants must have intended that at least some of the matters gathered by covert surveillance activity would be disclosed to the Claimants, thereby disclosing the fact the surveillance had occurred and thereby causing alarm and distress to the Claimants.
h. It is to be inferred from the facts and matters in paragraphs 31(a) to (g) above that the Defendants' decision to deploy and persist in the surveillance was therefore made knowing that their conduct would cause the Claimants alarm and distress. In any event, the Defendants ought to have known that their conduct would cause the Claimants alarm and distress.
i. In support of this contention, the Claimants will further rely upon letters sent to the Claimants by the First Defendant through its solicitors on 8 and 12 June 2020 ("the 8 June letter" and "the 12 June letter"):
ii. In the 8 June letter the First Defendant stated that it would withdraw an undertaking given on 17 October 2019 not, pending trial, to carry out certain forms of surveillance on the Claimants. The letter also suggested that, were it not for the Covid-19 pandemic, the First Defendant would withdraw its undertaking not to carry out other types of surveillance on them, including physical surveillance. By the 8 June letter the First Defendant signalled its intention to resume surveillance of the Claimants immediately upon expiry of its undertaking.
iii. The 8 June letter failed to identify any basis, let alone any purportedly legitimate basis, for resuming such activities. In the 12 June letter the First Defendant purported to provide an explanation, namely that the activities would be in pursuit of the 'legitimate aim' relied upon in the First Defendant's defence of these proceedings, but refused to give any explanation for how that so called legitimate aim would be met through further surveillance.
iv. By the time of the 8 June letter the Claimants had, through the Particulars of Claim in these proceedings and through their witness statements dated 20 September 2019, put the Defendants on express notice of the alarm and distress they had suffered as a result of the surveillance activities complained of in these proceedings. Moreover on or around 16 April 2019 the Sussex Police wrote to the Second Defendant to inform it that a criminal investigation of the Second Defendant was now being pursued for harassment against the First Claimant and his family. It is to be inferred that the Second Defendant made the First Defendant aware of this investigation, and that the First Defendant was therefore aware that the police regarded the surveillance of the Claimants which the First Defendant had instructed the Second Defendant to carry out as potentially amounting to criminal harassment.
v. The First Defendant therefore sent the 8 June letter in the knowledge that the letter would cause the Claimants severe alarm and distress. It is to be inferred that the First Defendant's intention in sending the 8 June letter was to oppress the Claimants and cause them severe alarm and distress.
vi On 11 June the Claimants' solicitors wrote to the First Defendant's solicitors explaining that the 8 June letter had caused considerable distress to the Claimants and seeking, amongst other things, clarification of what surveillance activities the First Defendant was intending to carry out. In response, in the 12 June letter, the First Defendant's solicitors stated that the First Defendant would, in fact, no longer withdraw the undertaking not to carry out further surveillance upon the Second Claimant; but declined to explain what further surveillance it intended to carry out on the First Claimant. The 12 June letter caused the First Claimant further considerable distress, as the First Defendant would have known.
vii. In the circumstances, and in particular in light of the fact the First Defendant was willing to send the 8 and 12 June letters despite knowing that they would cause the Claimants severe alarm and distress, it is inferred that the First Defendant instructed the acts of surveillance complained of in these proceedings similarly knowing that they would cause alarm and distress towards the Claimants."
"Further, and without prejudice to the burden of proof (which rests on the Defendants in this regard), there is and was no legitimate justification under section 1(3) of the PHA for the course of conduct pursued by that Defendant. In particular, the Defendants cannot legitimately contend that the course of conduct was reasonable when:
a. the installation and operation of the video camera was obviously unlawful; and
b. for the purpose of their attempts to obtain access to the Claimants on the Island, the Second Defendant's Operatives lied to the authorities on St Lucia as set out at paragraphs 8 h. and m. above; and
c. in relation to the First Defendant only, the installation and operation of the tracking device on the First Claimant's car was obviously unlawful."
"The Claimants will rely on the following matters in support of their claims for general and aggravated damages:
a. Following notification by the St Lucia authorities of the attempts by the Second Defendant's Operatives to gain access to them while on holiday on the Island, the Claimants feared for and were obliged to adopt measures designed to ensure their ongoing safety and security as follows:
i. The guard security detail on the Island was increased by a significant number patrolling outside the Claimants' villa and the beaches for the duration of their stay; and
ii. The First Claimant was obliged to make arrangements to secure the safety and well-being of the Second Claimant for her return home to the UK when, in the event, she travelled without the First Claimant at the end of the holiday.
b. The Claimants were shocked and concerned to learn from the St Lucia authorities about the attempts by the Second Defendant's Operatives to gain access to them while on holiday on the Island and in particular:
i. that this meant that the Second Defendant's Operatives must have had access to information about the Claimants' travel and accommodation plans;
ii. the fact that the Second Defendant's Operatives were prepared to and did tell lies to the St Lucia authorities in order to try to gain access to the Claimants as set out at paragraphs 8.h. and m above;
iii. the persistence of the Second Defendant's Operatives attempts to gain access to the Claimants, in that they were prepared to tell lies to do so as set out at paragraphs 8.h to 8.q above and that Mr Fielding was despatched to attempt to gain access after the other three had tried and failed to do so; and
iv. the fact that Mr Fielding had in his possession a camera adjusted for night vision use, which indicated that he intended to monitor the Claimants during the hours of darkness as well as during daylight hours.
c. Also as a result of the attempts by the Second Defendant's Operatives to gain access to them on the Island, the Claimants are deeply concerned about how to manage future holidays. They are worried that even the Island will not be safe enough, and if they do decide to return, this will necessitate prior discussions and planning about the security situation there.
d. As a result of the Surveillance Activities and Other Surveillance Activities, and following the discovery and examination of the video camera in particular, both counter-terrorism and armed response police attended at the Claimants' Property in order to survey the property and assess the Claimants' security arrangements.
e. As a result of the Surveillance Activities and Other Surveillance Activities, the Claimants have become greatly concerned for their safety and well-being and have taken extensive measures to try to ensure their ongoing safety and security.
f. The facts that the Second Defendant's Operatives obtained advance notification of the Claimants' holiday travel plans and of the First Claimant's lunch booking at the Restaurant has caused the Claimants to be greatly concerned about the security of their IT systems, and the Claimants have instructed specialist experts to assess their IT security.
g. The Claimants have been obliged to notify their two daughters and their respective husbands of the Surveillance Activities and of the potential threat, by their association with the Claimants, to their own safety and security. Both daughters have young children and, as well as being concerned for their parents, are concerned about staying at the Claimants' Property. Experiencing their daughters' distress and concern has increased the distress caused to the Claimants.
h. The Claimants have also been obliged to notify several of their close friends, who visit the Claimants' Property and/or holiday with the Claimants, of the potential threats to their safety and security. This has caused distress to those friends, who are concerned about visiting the Claimants' Property or associating with the Claimants. Experiencing the distress and concern of their friends has increased the distress caused to the Claimants.
i. Paragraphs 31(h) and (i) above are repeated. The 8 June letter caused the Claimants great shock, anxiety and distress. The Claimants' distress was further compounded by the fact that the 8 June letter called into question the veracity of their evidence set out in their witness statements dated 20 September 2019 as to the effects that the Defendants' activities have had on them, and specifically questioned the Second Claimant's evidence of sleepless nights and anxiety."
(2) Extracts from the Reply
"8. As regards the Defendants' assertions that matters relevant to these proceedings are covered by litigation privilege, and/or that they unable to plead to certain matters as to do so waives or risks waiver of privilege, the Claimants' position is as follows.
a. It is denied that communications or documents relating to the surveillance at issue are privileged. The said communications took place and the said documents were generated during the course of and/or for the purposes of surveillance activities that were unlawful, and in certain cases involved dishonest conduct, as set out in the Particulars of Claim and at paragraphs 8(c) to 8(e) below. Further:
[deleted]
(ii) For the reasons set out at paragraphs 30 to 33 of the Amended Particulars of Claim in undertaking the surveillance activity complained of the Defendants committed an offence or offences of harassment 195 contrary to section 2(1) of the Protection from Harassment Act 1997. Pursuant to section 2(1), a person who pursues a course of conduct in breach of section 1(1) is guilty of a criminal offence.
(iii) The actions of the Second Defendant's Operative(s):
1. In making false representations as pleaded at paragraphs 8(h) and (m) of the Amended Particulars of Claim were plainly iniquitous. In this regard, the Claimants will rely on the fact that they would, if committed by a person who is not a British citizen seeking to enter the United Kingdom, have amounted to the commission of offences contrary to section 24A of the Immigrations Act 1971. Pursuant to section 24A, such a person is guilty of an offence if, by means which include deception by him, he obtains or seeks to obtain leave to enter or remain in the United Kingdom.
2. In making false representations as pleaded at paragraph 8(m) of the Amended Particulars of Claim amounted to the commission of an offence contrary to the law of St Lucia. Section 36(1)(e)(ii) of the Immigration Act, Cap 10.01 provides that any person who, being a passenger intending to enter or entering St Lucia, wilfully gives an untrue answer to a question posed by an immigration officer, is guilty of an offence.
3. In bringing or attempting to bring in to St Lucia the camera adjusted for night vision use, as pleaded at paragraph 8(n) of the Amended Particulars of Claim, amounted to the commission of an offence contrary to the law of St Lucia. Pursuant to section 84(2) and article 22 to Part 2 of Schedule 3 of the Customs (Control and Management) Act, Cap 15.05, it is an offence to import goods into St Lucia without observing the applicable restrictions and conditions. These provide that cameras adapted for night vision use, cannot be imported except with the written permission of the Comptroller of Customs. The Second Defendant's Operative did not have such permission. In the premises it is denied that privilege can attach to them, as a matter of law. Sub-paragraphs (b) to (e) below are pleaded without prejudice to the generality of the foregoing.
b. It is denied that documents recording the surveillance carried out on the Claimants are privileged as against the Claimants. The said documents record matters that are not confidential vis-ΰ-vis the Claimants. No privilege can therefore arise in such documents. The specific matters below are pleaded without prejudice to this position.
c. As regards documents relating to meetings carried out by Black Cube:
i. The purported purpose of such meetings was to conduct a job interview with current and former associates of Dechert. They were therefore not arranged, from the perspective of the interviewees, for the purposes of conducting litigation (let alone for the dominant purpose of conducting litigation).
ii. Accordingly, it is irrelevant that the subjective purpose of Black Cube and/or the First Defendant in procuring the meeting is alleged to have been to obtain information for the Proceedings. Even if this was true (which is not admitted), it would merely mean that the meetings were arranged on false pretences. In such circumstances it is the ostensible purpose of the meeting which, as a matter of law, is relevant in assessing if privilege arises.
iii. Such meetings were also procured on a dishonest basis, and for this reason it is denied that the meetings are capable of being privileged in any event.
iv. It is inferred that the First Defendant instructed Black Cube to obtain the meetings on a false and dishonest basis, or otherwise authorised Black Cube to do so.
Accordingly, it is denied that any privilege arises in relation to any of the categories of documents referred to at paragraph 25 of the First Defendant's Defence, as regards the interviews procured by Black Cube.
d. As regards documents relating to the attempted surveillance of the Claimants on the Island:
i. It is denied that such documents were created for the dominant purpose of conducting litigation:
1. There was no reason for the Defendants (or either of them) to believe that the Claimants would engage in activities on the Island that were of any relevance to the Proceedings, given (a) the trip to the Island was a family holiday, (b) the trip took place many years after the events complained of in the Proceedings, and (c) the lack of any basis (pleaded or otherwise) for believing that the First Claimant would have engaged on activities relevant to the Proceedings while he was present on the Island.
2. In the circumstances it is inferred that the actual purpose of such surveillance was either to seek to gather material which was potentially compromising of or embarrassing to the First Claimant but which was not relevant to the Proceedings or to intimidate and/or harass the Claimants (or either of them).
ii. Further and in any event, documents recording communications between operatives of the Second Defendant and third parties in the course of attempting to gain access to the Island for the purpose of carrying out surveillance of the Claimants on it (including communications with security guards on the Island and the St Lucia authorities) were neither:
1. Confidential; nor
2. From the perspective of the third parties, who the Second Defendant's Operatives sought to mislead as to the reason why they sought to visit St Lucia/the Island, carried out for the purposes of conducting litigation. They are therefore not privileged.
iii. Further or alternatively, paragraph 8(a)(iii) above is repeated. Accordingly, it is denied that any privilege arises in relation to any of the categories of documents referred to at paragraph 25 of the First Defendant's Defence or at paragraphs 8 and 9 of the Second Defendant's Defence as regards the attempted surveillance on the Island.
e. As regards the surveillance of the Claimants' Property:
i. As noted above, surveillance of the Claimants themselves would record matters that are not confidential vis-ΰ-vis the Claimants. Records of such surveillance are therefore not privileged.
ii. Further, insofar as the surveillance sought to record or did record:
1. matters taking place in a public place (e.g. the entrance to the Claimants' Property from the road);
2. matters which were known or would have become known to the Claimants shortly thereafter (e.g. the identity of persons leaving or entering the Claimants' Property); or
3. matters taking place on the Claimants' Property, including matters recorded by means of trespass on the Claimants' Property; it is denied that the relevant matters are capable of being confidential, either at all or vis-ΰ-vis the Claimants.
iii. Further or alternatively, it is denied that such documents were created for the dominant purpose of conducting litigation:
1. There was no reason for the Defendants (or either of them) to believe that the Claimants would engage in activities at the Claimants' Property that were of any relevance to the Proceedings, given: (a) that the Property is their family home, (b) the surveillance took place many years after the events complained of in the Proceedings, and (c) the lack of any basis (pleaded or otherwise) for believing that the First Claimant would have engaged on activities relevant to the Proceedings while he was at the Claimants' Property.
2. In the circumstances it is inferred that the actual purpose of such surveillance was either to seek to gather material which was potentially compromising of or embarrassing to the First Claimant but which was not relevant to the Proceedings or to intimidate and/or harass the Claimants (or either of them). Accordingly, it is denied that privilege arises in relation to any of the categories of documents referred to at paragraph 25 of the First Defendant's Defence or paragraphs 8 and 9 of the Second Defendant's Defence as regards surveillance of the Claimants' Property."
