On 20 January 2021, the Court of Appeal handed down its judgment in the case of Phones 4U Limited v EE Limited [2021] EWCA Civ 116. It upheld the decision that, for the purposes of disclosure, the personal devices of the defendant's employees and former employees containing relevant documents were under the defendant's control. The court ordered those devices to be searched. This demonstrates the strength of the court's power regarding disclosure and ensuring that all relevant documents are with the court to enable a fair trial.
Background of the case:
The claimant (the administrators for Phones4U Limited) alleged that the defendants (eight mobile network operator companies) entered anti-competitive arrangements by agreeing to terminate their individual agreements with Phones4U, which resulted in Phones4U going into administration. Phones4U therefore brought a claim for £1bn in damages.
Officers and employees of the defendants were suspected of receiving work-related emails regarding anti-competitive arrangements on their personal devices. At the case management conference, among other disclosure orders, some of the defendants were ordered to request that certain employees allow IT specialists engaged by the defendants to check their personal devices. This would allow the IT specialist to pass any relevant communications they would find to the defendants, who would then disclose these communications. The defendants appealed, firstly on the basis that the court had no jurisdiction for this kind of order. Secondly, the defendants relied on proportionality, claiming that involving IT specialists was not appropriate, proportionate, and was in breach of the privacy rights of the third parties involved.
The judgment:
The Court of Appeal dismissed the appeal. The court answered the issue on jurisdiction by referring to the defendants' control of the materials for disclosure. CPR 31.5(8) was interpreted broadly, allowing the court to give directions at any stage regarding disclosure, including the searches, the time periods and the places for the searches. The court was able to require the defendants to ask third parties for access to relevant documents for the purposes of making a search for relevant disclosure.
Regarding the proportionality and privacy issue, the court considered that it was the third parties who chose personal devices as a means for work-related matters. The court also stressed the fact that the circumstances involved individuals purposefully avoiding work-related devices for unlawful dealings. Therefore, the court's order was a proportionate and appropriate application of CPR 31.5(8)(a), and if the defendant's employees would reject the request, a more time consuming and expensive approach (such as specific disclosure under CPR 3.12) would have be enforced.
Originally published March 8, 2021
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