Brake v Guy

The Court of Appeal dismissed the appellants' challenge to a trial judge's decision that emails held on the enquiries@axnoller.co.uk account were not, as a matter of law, subject to a reasonable expectation of privacy or to a duty of confidence in favour of the claimants. Key legal principles applied were that there are two distinct causes of action (misuse of private information and breach of confidence), that the first stage in a privacy claim is whether there is an objective "reasonable expectation of privacy" (applying the Murray factors and related authorities), and that the claimant bears the burden of proof on that stage.

The judge's factual findings were central: the account was created and paid for by the business (Sarafina/AEL), was used as the company's business enquiries account, access was shared, the password was held in the context of employment and by the company's IT provider, and the claimant delayed asserting ownership. On those findings the judge reasonably concluded there was no reasonable expectation of privacy or obligation of confidence as against the defendants. The court also upheld the judge's approach to the iniquity defence and his assessment that only a limited number of emails were admitted as private and that the claimants had suffered little compensable damage.

Background and parties: The Brakes (Mr and Mrs Brake) operated a wedding and holiday business which, after insolvency processes and sale, was owned and run by companies connected to Dr Geoffrey Guy (Chedington Court Estate Ltd and Axnoller Events Ltd). The claimants sued for a final injunction and damages for misuse of private information and breach of confidence in relation to emails held on the company account enquiries@axnoller.co.uk, which the first claimant (Mrs Brake) had used for some personal correspondence.

Nature of the claim and relief sought: The claimants sought injunctive relief (including destruction of copies) and damages for alleged misuse of private information and breach of confidence arising from access to and disclosure of emails on the enquiries account.

Procedural posture: The action was one of several linked proceedings. An interim injunction was granted by a deputy judge on 28 November 2019 and a split trial was directed. The main trial and a preliminary issue were heard before HH Judge Matthews; the primary trial judgment is reported at [2021] EWHC 671 (Ch). The claimants appealed; permission was granted and the Court of Appeal heard the appeal on 2–3 February 2022, handing down judgment on 2 March 2022.

Issues framed by the court:

• Whether the claimants had a reasonable expectation of privacy in emails stored in the enquiries account.
• Whether emails were imparted in circumstances importing an obligation of confidence (the Coco elements).
• Whether any interference with privacy was justified (balancing under article 8 and article 10), and the effect of the defendants' asserted "iniquity" defence.

Court’s reasoning and findings: The trial judge made extensive factual findings (preferred the defendants' evidence and distrusted parts of Mrs Brake's evidence). He found the domain and accounts had been set up and paid for by the business (Sarafina), passed with the business to Chedington/AEL, and were used as the company's main business enquiries account; Mrs Brake never had exclusive use and there were separate personal accounts created contemporaneously. Access had been given to employees and the IT provider. The judge concluded that, on the facts, a reasonable person would not have a reasonable expectation of privacy in relation to emails sent from or received into that enquiries account and that the circumstances did not import an obligation of confidence. The Court of Appeal held that (i) the judge applied the correct legal tests (including the Murray factors and Coco), (ii) the burden of proof lay on the claimants and they failed to discharge it, and (iii) the judge’s factual assessments and conclusions were within the ambit of reasonable conclusions. The appeal was therefore dismissed. The court observed that the interplay between alleged wrongdoing (the iniquity defence) and reasonable expectation could be relevant but did not alter the result on the evidence presented.

Appeal dismissed. The Court of Appeal held that the trial judge correctly applied the law on misuse of private information and breach of confidence and was entitled to conclude, on the factual findings he made, that the claimants had no reasonable expectation of privacy in emails on the enquiries@axnoller.co.uk account and no duty of confidence arose. The claimants had failed to discharge the burden of proof and the judge's multi-factorial assessment was within the range of reasonable conclusions.

The trial and substantive judgment was delivered by HH Judge Matthews in the Business and Property Courts and is reported at [2021] EWHC 671 (Ch). A separate preliminary issue judgment was handed down at [2021] EWHC 670 (Ch). An interim injunction had been granted by a deputy judge on 28 November 2019. The claimants obtained permission to appeal and the Court of Appeal heard the appeal on 2–3 February 2022 and handed down judgment on 2 March 2022 ([2022] EWCA Civ 235).