Information Law analysis: In a claim for misuse of private information (MPI), the court considered the extent to which there can be a reasonable expectation of privacy in private WhatsApp messages found at work, and how such material should be dealt with in the context of ongoing legal proceedings.
The judgment considers a number of applications by the defendants for summary judgment and/or strike out of various parts of the claims and counter claims on the basis of abuse of process and malicious prosecution, and also discusses the factors that will be taken into account when considering whether interim payments into court should be made as a condition of the proceedings continuing. The court dismissed the applications in their entirety on the 'clear conclusion that they are without merit' and 'not worthy of serious consideration'. Written by Charlotte Clayson, partner at Trowers & Hamlins LLP.
FKJ v RVT and others [2023] EWHC 3 (KB).
What are the practical implications of this case?
Data protection and privacy practitioners will find Master Davison's comments on the MPI claim useful, particularly in understanding whether a prima facie case exists. In the consideration of the defendant's application for strike out of the MPI claim, the judgment makes clear that the claim is likely to centre on 'the extent rather than principle of the claimant's recovery in her MPI claim', giving the view that it 'cannot be seriously contested that the claimant had a reasonable expectation of privacy in her WhatsApp messages'.
Of wider interest and application is the commentary and analysis of when a claim might be struck out on the basis that it amounts to an abuse of process, and how claims in the torts of malicious prosecution or the abuse of process might be founded.
Finally, the judgment also highlights the duties owed when parties to potential or ongoing litigation come across objectively private material which may, or may not, have relevance to the proceedings in due course, and how that material should be handled.
What was the background?
FKJ brought a claim in the employment tribunal against her former employers on the grounds of sex discrimination, unfair dismissal and wrongful dismissal, amid allegations of sexual harassment by the first defendant, RVT. FKJ lost that employment tribunal claim, in large part due to evidence deployed by RVT which consisted of some 18,000 of FKJ's private WhatsApp messages. Prior to that tribunal hearing, the defendants had come to be in possession of a complete log of messages exchanged between FKJ and both her partner and her best friend, some of which were 'of the most intimate kind'. FKJ brought a claim for misuse of private information.
While there was some dispute over how RVT came to be in possession of these messages, spanning a period of two years, FKJ only became aware of them being in his possession when she received the defendants' grounds of resistance in the employment tribunal proceedings. FKJ chose not to seek exclusion of those messages from evidence, or to seek aggravated damages as a result of RVT's conduct. Instead, FKJ chose to pursue a claim for misuse of private information in the High Court. RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.
RKJ brought a counter claim grounded in the common law torts of malicious prosecution and abuse of process, and harassment under the Protection from Harassment Act 1997. RVT also sought to strike out the claim and seek summary judgment on his counterclaim. As a fall back, the defendants sought payment of significant sums into court by FKJ as a condition of the proceedings continuing.
What did the court decide?
The court gave short shrift to the defendants' applications, reaching the 'clear conclusion that they are without merit'. Parts of the applications were 'not worthy of serious consideration' and appeared to be 'an attempt to stifle a claim that the defendants would prefer not to contest on its merits'. As to the strike out applications, the judgment analysed:
- Jameel abuse - This allows strike out of a claim where no real or substantial wrong has been committed and no tangible or legitimate benefit will be provided to the claimant proportionate to the likely costs. This was dismissed as being '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'
- Henderson abuse - This was based on the suggestion that FKJ should have invited the employment tribunal to deal with these issues rather than bringing a separate MPI claim, and that the separate claim amounted to an abuse of process. The court determined that it was not incumbent on her to do so, and she was free to bring the separate claim, complete with associated remedies
- strike out on the basis of CPR 31.22—This permits disclosed documents to be used only for the purposes of the proceedings in which they were disclosed. This case did not fall within the ambit of CPR 31.22 because these were FKJ's own documents, and were not disclosed by RVT in compliance with an order for disclosure
As to the summary judgment application, this too was dismissed. Given that case law on the tort of malicious prosecution has yet to be settled, and the need to understand FKJ's state of mind in considering the tort of abuse of process, these matters were not suitable for summary judgment.
Finally, on the issue of interim payments, Master Davison considered that to impose such conditions would 'unjustifiably stifle' FKJ's continued participation in proceedings.
Case details:
- Court: King's Bench Division, High Court of Justice
- Judge: Master Davison
- Date of judgment: 11 January 2023
This article was first published by Lexis®PSL on 27/01/2023.
