Patel v UNITE the Union

Where a party has reason to believe that a prior disclosure order has not been fully complied with because of inadequate technical understanding, the court may make a further order that is necessary and proportionate to assist compliance and prevent the original order being frustrated. This may include independent expert access to and imaging of a database.

Where the exercise affects personal or sensitive personal data, the court must balance the claimant’s need to identify arguable wrongdoers against the privacy and data protection rights of others. Proportionality may be secured by appointing an independent expert, restricting disclosure to identifying information, requiring suitable undertakings, and requiring the claimant to bear the compliance costs.

The claimant sought further relief in Part 8 proceedings arising from anonymous allegedly defamatory and harassing postings on a trade union’s internet forum. An earlier Norwich Pharmacal order required the respondent to search for and disclose information identifying the users responsible.

The respondent stated that the forum and relevant postings had been deleted and that the requested information could not be recovered. The claimant alleged that the search had not been conducted with sufficient technical expertise and sought access for an independent forensic expert to examine available database material. The central issues were whether the court had power to make such an order and whether it was necessary and proportionate in light of privacy and data protection rights.

1. Power to make a further order. The court had power, where there was reason to believe that an earlier order had not been fully complied with because of inadequate technical understanding, to make a further order necessary and proportionate to assist compliance and prevent the earlier order being frustrated. This could include inspection of a database and examination or imaging by an independent expert (para [28]).
2. Need for effective technical investigation. The evidence did not establish that the respondent had carried out the ordered search thoroughly or with the expertise necessary to determine whether deleted data remained recoverable. The claimant had supplied post and user identifiers which might enable the requested information to be found, but there was no satisfactory evidence that those identifiers had been checked against the relevant database tables (paras [26]–[28]).
3. Privacy and proportionality. The proposed order was intrusive because it could affect the personal and sensitive personal data of many union members. Nevertheless, the need to identify persons arguably responsible for wrongdoing, and the absence of another effective means of doing so, were important considerations. The approach in The Rugby Football Union v Viagogo Ltd [2011] EWCA Civ 1585 supported the conclusion that disclosure identifying arguable wrongdoers would generally be proportionate where necessary.
4. Safeguards. Proportionality could be achieved by requiring the work to be undertaken by an independent expert jointly appointed by the parties, subject to undertakings preventing disclosure except of information identifying those responsible for the complained-of postings or explaining why identification was impossible. The claimant was required to bear the respondent’s compliance costs and the expert’s costs (para [31]).