Neutral Citation Number: [2009] EWHC 1977 (Ch)
Case No: HC09C01660

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Royal Courts of Justice
Strand
London WC2A 2LL

Tuesday, 21 July 2009
Before:

THE HONOURABLE MR JUSTICE KITCHIN

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Between:

 DANIELLE LLOYD

Claimant	
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(1)	DEEPAK JAGPAL
(2)	CARPHONE WAREHOUSE

Defendants	
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Mr Paul Mitchell (instructed by Swan Turton) appeared on behalf of the Claimant

Mr Tim Ludbrook (instructed by Mason Hayes) appeared on behalf of the Second Defendant
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JUDGMENT
MR JUSTICE KITCHIN:  

1.	I have before me an application that the claim against the second defendant be struck out pursuant to CPR rule 3.4, alternatively that there be summary judgment for the second defendant pursuant to CPR rule 24.2.  The latter part of the application is no longer pursued.  Accordingly, I need only deal with the strike out application.

2.	The second defendant contends that I should strike out the claim on the basis that the statement of case discloses no reasonable grounds for bringing the claim, alternatively that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings, alternatively there has been a failure to comply with a rule, practice direction or order.  In particular, it is said that the particulars of claim are defective in that they fail to set out details of the particular photographic images upon which reliance is placed, contrary to CPR rule 16.4.  

3.	These proceedings have a very long history which I need not relate in full.  The material aspects are these.  

4.	On 28 March 2008, the claimant's solicitors wrote to the second defendant a letter setting out the basis of the claimant's case.  In substance that case is as follows.

-	In September 2007, the claimant attended her local Carphone Warehouse branch in Harlow and handed over her mobile telephone to one of the second defendant's staff so that the data on that mobile telephone could be transferred to a new mobile telephone that she was purchasing from the second defendant.  Amongst the array of personal details contained on that mobile phone were 72 photographic images of the claimant and her family.  It was an implied term of the contract between the claimant and the second defendant that the images would be treated as confidential and would not be disclosed to any third party save with the claimant's consent.  

-	One of the second defendant's employees at the Carphone Warehouse branch was the first defendant and, in a document signed by him on 14 March 2008, with the benefit of legal advice, he admitted to the illegal downloading of the personal details to which I have referred, including the images, and that in carrying out that step he was acting in the ordinary course of his employment by the second defendant. 

-	Thereafter, the first defendant sent the images to five national newspapers. Indeed, solicitors acting for the first defendant confirmed that he sent all 72 images to all five of those newspapers and, as a result, a considerable number of journalists, and probably other individuals, must have seen them.

-	The activities of the first and second defendants amounted to a breach of contract, an infringement of copyright, a breach of confidence, an invasion of privacy and constituted a civil wrong contrary to the Data Protection Act.  

-	The second defendant was vicariously liable for the actions of the first defendant.

5.	Further, the claimant sought acceptance by the second defendant of liability, failing which proceedings would be issued.  

6.	No substantive response was received to that letter. Accordingly, the claim was issued some time later, on 28 January 2009, accompanied by the particulars of claim which give rise to this application.  Those particulars really track the contents of the letter of 28 March 2008 which I have summarised.  

7.	Specifically it is asserted in paragraphs 4 and 7 of the particulars of claim that the data which the first defendant downloaded from the claimant’s mobile telephone included a series of highly personal and private images, including pictures with explicit sexual content and of an intimate medical nature, revealing scars inflicted upon the claimant by surgical procedures which she had undergone.  The images were, it is contended, self‑evidently confidential and, moreover, the claimant had a reasonable expectation that they would remain private.  Paragraphs 10 and 11 of the particulars of claim allege that the first defendant wrongfully viewed the data, including the images, caused copies to be made and sent some or all of the images to the five national newspapers to which I have referred.  

8.	The first defendant admitted liability.  The second defendant served a defence on 4 March 2009 taking issue with virtually every allegation contained in the particulars of claim.  The defence also asserted that the second defendant was unable properly to plead to each cause of action because the images were not identified; nor did the particulars of claim specify the basis upon which the images could be said to be confidential.  

9.	The defence was not, however, accompanied by a request under CPR Part 18, or by a letter asking for copies of the particular images upon which the claimant relied or that they be identified in some other way.  

10.	Instead, on 1 April 2009, this application was issued and served together with evidence in support, seeking an order that the claim be struck out, alternatively that there be summary judgment for the second defendant.  It was initially listed by the second defendant for 28 April 2009, apparently without any notice having been given to the claimant's solicitors.  It was therefore adjourned and re-listed by consent to come on between 13 and 15 July 2009 and, in the event, has come on for hearing today.  

11.	On 1 July 2009, the claimant served a series of witness statements in answer to the application in accordance with her obligations under CPR rule 24.5, anticipating that the application would be heard on or about 13 July 2009. One of the statements was made by the claimant and she attached to it copies of 49 images which she said she had salvaged from the mobile telephone to which data was transferred by the first defendant.  

12.	Some five days later, on 6 July 2009, the second defendant's solicitors wrote requesting an adjournment on the basis that the witness statements contained a good deal of further information and raised matters in respect of which the second defendant might wish to make an application for specific disclosure.  

13.	On the same day, 6 July 2009, the claimant's solicitors responded by fax and post, stating that any relevant disclosure would be provided and any application to adjourn the application would be resisted.  The second defendant's solicitors thereupon immediately wrote a further letter, again stating that they would be seeking an adjournment, but still not identifying the disclosure which the second defendant claimed it needed.  

14.	Accordingly, on 7 July 2009, the claimant's solicitors indicated that if the second defendant needed additional disclosure for the just disposal of the application, then it would be provided as and when it was identified.  

15.	On 8 July 2009, the second defendant's solicitors requested sight of the digital images which had been reproduced and appended to the claimant's evidence.  Apparently within two hours of receipt of that letter the claimant's solicitors dispatched to the second defendant's solicitors by special delivery a compact disc containing the digital images requested, which arrived the following day.  

16.	Further, on 9 July 2009, the claimant's solicitors wrote to the second defendant's solicitors, concluding with an invitation that if, on reflection, they considered that the production of the claimant's images meant the second defendant no longer wished to proceed with its application, it would be best to say so and the issue between the parties could then simply be narrowed down to one of costs.  

17.	That was not an invitation which the second defendant accepted and accordingly the matter comes before me today and the application is pursued to the extent to which I have referred, the application for summary judgment having been abandoned during the course of the hearing.  

18.	I am wholly satisfied that it would be inappropriate to accede to this application.  Indeed I am extremely concerned that the costs of and occasioned by this application have now reached something in the order of £50,000.  It seems to me that the evidence of the claimant, together with the provision by the claimant of digital copies of the images, means that the second defendant is no longer subject to the disadvantage which it alleges it has suffered, if indeed that was ever the case.  The statement of case discloses reasonable grounds for bringing the claim, it is not an abuse of process and the images were provided immediately upon request.

19.	Secondly, I believe that the pursuit of this application and the failure by the second defendant to invite the claimant to identify and provide copies of the images which it claims it needed has resulted in a wholly disproportionate exercise and needless waste of time and money.  The particulars of claim were certainly by no means full, but, as I say, if and insofar as the second defendant has ever really been in difficulty as a result of the claimant's failure specifically to identify or provide the images upon which she relied, it was a difficulty which could easily and readily have been resolved either by a request by letter or under CPR Part 18.  

20.	The power to strike out a statement of case under CPR rule 3.4 is a discretionary one and in all the circumstances to which I have referred I believe it would be quite wrong for me to exercise my discretion in the way that the second defendant invites me to.  Accordingly, the application is dismissed.