Fairstar Heavy Transport NV v Adkins & Anor

A principal is entitled to require a former agent to produce documents relating to the principal’s affairs for inspection and copying. That incident of agency survives termination.

Electronic communications and their content may constitute documents for this purpose. Information stored on a computer is subject to the same principle as information recorded on paper. The method of recording or storage does not diminish the principal’s right of access.

The right is enforceable between principal and agent without establishing ownership of the information or a proprietary right enforceable against the world.

Fairstar sought access to business emails sent or received on its behalf by its former chief executive, Mr Adkins. The emails had been forwarded to his private address, deleted from Fairstar’s server and stored on his personal computer. Claranet Limited, which held electronic copies, took no part in the proceedings.

Edwards-Stuart J answered a preliminary issue against Fairstar and dismissed the action. He characterised the emails’ content as information incapable of supporting the proprietary claim advanced.

Fairstar appealed. The central issue was whether its right, as principal, to inspect and copy documents held by its former agent extended to electronic business correspondence without requiring a proprietary right in the information.

1. The appeal was allowed unanimously. The preliminary issue had introduced an unnecessary proprietary-right analysis. Fairstar’s claim arose from the legal incidents of its former relationship of principal and agent.

2. A principal is generally entitled to require an agent to produce documents relating to the principal’s affairs. That right supports a remedy requiring inspection and copying. It continues after termination of the agency.

3. Depending on context, a document includes information recorded, held or stored by means other than paper. Rule 31.4 of the Civil Procedure Rules 1998 defines a document as anything in which information of any description is recorded. Its definition of a copy is correspondingly independent of the means by which the information is copied. Electronic documents, including emails, fall within that conception.

4. Materials stored on a computer and capable of display in readable form or printing are subject, in principle, to the same incidents of agency as paper documents. The form of recording or storage does not diminish the principal’s substantive right to access their content.

5. It was unnecessary to decide whether information in the emails constituted property owned by Fairstar. The absence of a proprietary right did not affect the personal right of access enforceable against the former agent. The Court declined to endorse a wider proposition that information can never be property, because the answer could depend on the nature of the information and the circumstances in which the right was asserted.

6. Mr Adkins was therefore required, as Fairstar’s former agent, to permit inspection of emails sent or received by him which related to Fairstar’s business. The parties were directed to draft an agreed order or, failing agreement, submit competing drafts with written submissions.

1. Court of Appeal (Civil Division): By [2013] EWCA Civ 886, unanimously allowed Fairstar’s appeal and held that its right of access arose from the incidents of agency without requiring a proprietary right in the emails’ content.
2. High Court, Technology and Construction Court: Edwards-Stuart J answered the agreed preliminary issue against Fairstar and dismissed the action. The judge held that the emails’ content was information incapable of supporting the asserted proprietary claim. The reserved judgment was handed down on 1 November 2012 and the order was dated 6 December 2012; no citation is stated.