Nihal Mohammed Kamal Brake v Geoffrey William Guy

A reasonable expectation of privacy is objective, fact-specific and relative to the defendant against whom it is asserted. Personal information does not attract a legal presumption of privacy. The claimant must prove the expectation by reference to all the circumstances, including the nature of the information, the account used, access by others, the extent and recipients of disclosure, and its effect.

Private communications made through an employer’s facilities may engage European Convention on Human Rights article 8, but they do not invariably do so. A claimant using a shared business enquiries account, despite having a separate personal account, may lack privacy or confidentiality against the employer. Misconduct may also affect both the existence of a reasonable expectation and the justification for disclosure.

The appellants claimed an injunction and damages against Dr Geoffrey Guy and two companies for misuse of private information and breach of confidence. Mrs Brake had used a shared business enquiries email account for personal correspondence. After her dismissal, the company changed the account password and disclosed some emails to professional advisers, a trustee in bankruptcy and another creditor.

Following a five-day trial, the High Court dismissed the claim in [2021] EWHC 671 (Ch). It found that the account belonged to the company, was primarily a business account, was accessible by other employees and contained personal messages that were neither segregated nor marked as private. The judge held that the appellants had proved neither a reasonable expectation of privacy nor circumstances imposing an obligation of confidence.

The appeal concerned whether those conclusions involved an error of law or were unavailable on the facts found. It also challenged the judge’s alternative conclusions concerning disclosure and damages.

1. Appeal dismissed. The trial judge was entitled to find that the appellants had no reasonable expectation of privacy or confidentiality against the respondents. The appellants therefore failed on the first three grounds, and it was unnecessary to determine conclusively the challenge to the alternative findings about misuse.

2. The claimant bears the burden of proving an objectively reasonable expectation of privacy. The general treatment of certain personal information as private is only a legitimate starting point. It creates no legal presumption. The enquiry required consideration of all the circumstances under Murray and Bloomberg, including the nature of the information, the medium used, access by others, the extent and recipients of disclosure, and the effect upon the claimant.

3. The enquiries account belonged to the company and was intended for business. Mrs Brake shared it with other employees, held its password as an employee and had separate email accounts in which personal material could have been stored. Her personal messages were neither segregated nor marked as private. Ownership was not decisive, but it was an important contextual consideration. On that evidence, the judge could find that privacy and confidentiality had not been established against the respondents.

4. Communications made through an employer’s premises or facilities may fall within European Convention on Human Rights article 8. That principle does not mean that every personal workplace communication attracts a reasonable expectation of privacy. The European authorities depended on materially different circumstances. Simpkin correctly focused on whether confidentiality existed against the particular defendant.

5. Misuse of private information and breach of confidence are distinct causes of action. For confidence, the information must possess the necessary quality of confidence, be imparted in circumstances importing an obligation of confidence, and be used without authority to the communicator’s detriment. The different result in Imerman did not assist because its facts were different.

6. Appellate interference with a trial judge’s fact-sensitive evaluation is justified only by an error of principle or a conclusion outside the range reasonably available. No such error was shown.

7. Obiter: misconduct may be relevant both to whether a reasonable expectation of privacy or duty of confidence exists and, if it does, to the subsequent balancing exercise. The main judgment’s treatment of that issue was preferred to the inconsistent statement in the preliminary-issue judgment.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously in [2022] EWCA Civ 235. The High Court’s dismissal of the privacy and confidence claims was upheld.
2. High Court, Business and Property Courts: Following trial, HH Judge Matthews dismissed the claims for misuse of private information and breach of confidence in [2021] EWHC 671 (Ch). Permission to appeal was subsequently refused in [2021] EWHC 949 (Ch).
3. High Court, preliminary issue: In [2021] EWHC 670 (Ch), reported at [2021] 4 WLR 71, the judge held that the pleaded iniquity defence could not be excluded as a matter of law. That ruling was not under appeal.