When in litigation, it is common for parties to be so heavily focused on winning the dispute in front of them that they are oblivious to the risks of harming their opposition with new causes of action. This is exactly what happened in the case of FKJ v RVT and Others [2023].
FKJ v RVT & Ors [2023] EWHC 3 (KB)
Case background
The Claimant in that case was a solicitor that qualified in 2017 and commenced work for the Defendants in that same year.
On 21 December 2017, the Claimant was dismissed by the Defendants for falsifying a timesheet. The Claimant commenced employment tribunal proceedings against the Defendants alleging various causes of action but all revolving around the same thing – an accusation of inappropriate remarks and sexual touching.
The Claimant lost the employment tribunal claim. However, during the course of those proceedings, the Defendants deployed some 80,000 of the Claimant’s Whatsapp messages, the majority of which were between the Claimant and her husband (some of which were of the most intimate nature) and the Claimant and her best friend. The messages were described by the Judge as follows:
“They were private messages from the claimant to her partner (now husband), BRB, and her best female friend, KNF. The defendants had come to be in possession of a complete log of the claimant’s chats with BRB from January 2017 through to April 2018 and with KNF from March 2016 to April 2018. It is obvious that they were communications in respect of which the claimant would ordinarily have had a reasonable expectation of privacy. They contained several years’ worth of day-to-day information about her professional, social and private life, including about her health and sex life. Some of the messages and images which she shared with BRB were of the most intimate kind.”
Notwithstanding the Claimant losing her employment tribunal claim, she brought a claim for misuse of private information in the High Court in respect of the messages disclosed by the Defendant. The Claimant’s and Defendants’ cases in respect of the misuse of private information were summarised by the Judge as follows:
“The claimant’s case was that RVT hacked into her WhatsApp messages by setting up the computer-based “WhatsApp Web” and using her smartphone to scan the QR code generated, which operated as the only authorisation required by the site. He was thereby able to capture the entirety of her available WhatsApp messages. The claimant alleges that setting up WhatsApp Web was the work of a few moments and that RVT would have had numerous opportunities to use (or misuse) her smartphone in this way…
RVT’s explanation for his possession of the messages was twofold. He said that a substantial quantity of messages were found on her work laptop when he “reviewed the contents of the laptop [in January 2018] to establish why the claimant was attempting to login after she was dismissed and to ensure that the laptop could be safely passed to another member of the firm and did not contain personal information of the claimant”.
These messages were printed out and retained, following which the messages were deleted from the laptop. Secondly, he said that two further tranches of messages had been received via letters from an anonymous source. The first letter was in February 2018; the second in January 2019. The second letter (“conveniently and remarkably” as the claimant characterised it) provided updated logs of the claimant’s messages with BRB and KNF from 22 December 2017, i.e. the day after her dismissal, to April 2018.”
The Defendants applied for striking out and summary judgment alleging abuse of process and the requirement for an application to be made for documents deployed in previous proceedings to be used in the current proceedings. The Defendants described the Claimant’s case as having ‘significant problems’. In refusing the Defendants application and allowing the Claimant to proceed with her case, the Judge’s damning comments on the Defendants position were as follows:
“I find it hard to agree that the claim will face significant problems. Indeed, on present material (and without so deciding) it seems to me that the issue will more likely be the extent rather than the principle of the claimant’s recovery in her MPI claim. I have reached this provisional conclusion based upon the defendants’ pleaded case. It cannot be seriously contested that the claimant had a reasonable expectation of privacy in her WhatsApp messages.
The defendants, at paragraph 13.1 of the Amended Defence, have pleaded that she could not have had a reasonable expectation of privacy or confidence in relation to material saved or downloaded to her work laptop during working hours. But (a) that plea could not apply to the messages which, on the defendants’ case, were apparently intercepted by the writer of the anonymous letters and (b) no explanation or authority has been offered for the proposition that private information downloaded to a work laptop (a very common scenario) thereby loses its private character.
Only some 40 or so of the messages (out of very approximately 80,000) were in fact deployed in the Employment Tribunal claim and only about half of those 40 were strictly probative of an issue (and therefore disclosable). In respect of the bulk of the messages, there was no relevance to the Employment Tribunal proceedings and no justification for their retention or use.
Further, the WhatsApp messages that were, on his case, (a) taken by RVT from the claimant’s work computer in January 2018 and (b) received anonymously on 8 February 2018 both pre-dated the Employment Tribunal proceedings. Given their obvious privacy and given the absence at that time of any proceedings to which the messages might be relevant, he would have come under an immediate duty to notify the claimant and deliver up the messages to her. But he did not do so.
Finally, even if those proceedings had by then been on foot, the retention of private communications would still have been prima facie actionable because it would have been an impermissible form of self-help which it is the policy of English law to discourage; see Imerman v Tchenguiz [2010] EWCA Civ 908. The correct course of action would still have been to return the material to the claimant or her solicitors who would then have had disclosure obligations in respect of it…
It is unrealistic to submit that this claim reveals “no real or substantial wrong” or that “litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures”. Indeed, it is so unrealistic as to call into question whether the defendants have any genuine or honest belief in this being a proper basis for strike-out. I have described the scale of the hacked data and the nature of the material.
As Ms Page KC and Mr Hirst put it in their skeleton argument, the material in the defendants’ possession enabled them to “rove through several years of the claimant’s day-to-day communications on all aspects of her life with those closest to her”. The quantity of data was enormous and much of it was of the most personal and intimate kind. It is unnecessary for me, at this stage, to venture possible figures for the damages that would be payable in the event that the claimant was successful (in whole or in part).
Master Fontaine has already noted that the claim would appear to represent “a very serious breach of her private information” and that damages in an MPI claim in the High Court “may be very different from such a claim made in the Employment Tribunal”. The components of those damages would reflect (a) the claimant’s loss of control of her private information, (b) her distress and (c) aggravated damages. That could yield an award of many thousands of pounds.
Further, even though the defendants have stated that they do not oppose the non-monetary relief sought, a court award would vindicate the interference with her rights and that is in itself a tangible and legitimate benefit which she is entitled to pursue. The claimant’s costs budget is, I acknowledge, high; (it is in excess of £800,000). But (a) that budget includes the costs to be incurred in defending a counterclaim which the defendants value at several hundreds of thousands of pounds, (b) the costs have not yet been subjected to costs management and (c) I do not, in any event, regard them as so disproportionate to the issues at stake in the claim as to bring this case within the territory of a Jameel abuse argument. If, contrary to that view, the costs were wholly disproportionate, then the task of the court would be to impose proportionate case and costs management – not to strike out the claim, which is a last resort…”
Comment
The case of FKJ v RVT demonstrates quite clearly that parties need to consider how they approach obtaining evidence in support of their case and also how they handle it once obtained, as without proper care/advice, it is possible to make an already litigious situation worse.
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Kevin Modiri is a Partner in our expert Dispute Resolution team.
If you have any questions concerning the subjects discussed in this article, please do not hesitate to contact Kevin or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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