Brake & Anor v Guy & Ors

Confidential information obtained by unauthorised access to a password-protected email account must not be used through self-help where court relief was available. The proper course is to seek an order and address relevant documents through disclosure in the proceedings concerned. An alleged iniquitous purpose does not automatically authorise unrestricted disclosure or defeat confidentiality. The court must assess the evidence and, where appropriate, balance the nature and purpose of the proposed disclosure against the need to reveal the alleged wrongdoing. On an interim application, a party invoking iniquity must establish a strong prima facie case supported by evidence rather than mere allegation.

The Brakes sought relief concerning emails in the enquiries@axnoller.co.uk account, alleging that the Guy Parties had obtained access without consent and had used the contents in related proceedings. The Guy Parties sought declarations that legal professional privilege, confidentiality and privacy did not apply to documents said to concern an unlawful scheme involving the acquisition and later sale of West Axnoller Farm and related transactions.

The court considered confidentiality, privacy, legal professional privilege, the alleged iniquity principle, articles 8 and 10 of the Convention, and the Guy Parties’ late attempt to amend their application.

1. Unauthorised access and use. On the interim evidence, the enquiries account was confidential to Mrs Brake. It was password-protected and controlled by her. The Guy Parties should have sought consent or relief from the court. Procuring a new password and using the emails constituted impermissible self-help. Following Imerman v Tchenguiz [2011] Fam 116, the emails were to be returned to the Brakes’ solicitors and preserved.
2. Iniquity threshold. The iniquity principle could not be invoked on mere allegation. The party relying on it had to establish a strong prima facie case supported by evidence. Applying the approach identified in Hotel Portfolio II Ltd v SMA Investments Holdings Ltd [2019] EWHC 1754 Comm, the evidence, considered in its totality and in light of the incomplete disclosure, did not meet that threshold. The Guy Parties’ application for declarations concerning legal professional privilege therefore failed.
3. Scope of disclosure. Even if iniquitous conduct had been established, it would not follow that the documents could be disclosed in any manner. The nature and purpose of the proposed disclosure would require a balancing exercise. Relevant documents should instead be addressed through disclosure applications in the particular proceedings. The principles discussed in Attorney General v The Observer [1991] AC 9 and Weld-Blundell v Stephens [1920] 1 KB 520 did not justify unrestricted self-help.
4. Convention rights. The cause of action for breach of privacy had to be interpreted consistently with article 8. The protection of confidential information recognised in article 10.2 was not limited to Convention rights. In an appropriate case, the court would balance the relevant privacy and confidentiality interests against the need to reveal iniquity and any applicable article 10 rights, having regard to all the circumstances. The reasoning in Cream Holdings Ltd v Banerjee [2005] 1 AC 253 was relevant to that balancing exercise.
5. Outcome. The Guy Parties’ application was dismissed. The Brakes’ application was substantially made out, subject to agreed arrangements and the precise form of the order.