William Allan Jones & Anor v Andrew Simon Mallett & Anor

Where a settlement agreement requires the deletion of confidential documents in a party’s possession or control, the obligation is not confined to documents owned by that party. Electronic documents in the recipient’s inbox may fall within the obligation, including where the recipient holds them as a company director.

An implied term limiting the obligation to personally owned documents will not be inserted unless it is necessary for business efficacy. Where multiple breaches and inadequate compliance establish a realistic risk of further breaches, the court may grant tailored equitable relief. That relief should remain proportionate and need not reproduce every remedy sought.

The claimants sought to enforce a 2018 Settlement Agreement arising from earlier High Court and Employment Tribunal litigation. The agreement required the defendants to deliver up hard-copy confidential information and permanently delete confidential information held electronically, subject to limited litigation-related exceptions.

The dispute concerned documents retained by Mr Mallett, including emails received while he was the sole shareholder and director of Ceirios Limited, and documents retained on Mrs Mallett’s laptop. The claimants alleged that the defendants had retained and disseminated confidential documents and sought deletion, delivery up, disclosure of dissemination, and injunctive relief.

The principal issues were whether the agreement extended to electronic documents held in connection with Ceirios Limited or its clients, and what relief was appropriate in light of the established breaches, the likelihood of further breaches, and the parties’ conduct in the disclosure process.

1. Construction. The expression “held in electronic form” in clause 4.2 referred to documents in the defendants’ possession or control which related to the affairs of the claimants. It did not replace the contractual concept of possession or control with ownership. The obligation therefore extended to relevant electronic documents held by Mr Mallett in his capacity as a director of Ceirios Limited, and to documents supplied by third parties.
2. Possession and control. Possession or control has an established legal meaning. A document may be within a person’s possession or control without being owned by that person. The defendants’ suggested implied term excluding documents owned by Ceirios Limited or its clients was not necessary for business efficacy and was rejected.
3. Further breaches. The admitted breaches, the defendants’ mistaken interpretation of the agreement, the inadequate deletion exercise, their propensity to retain and share documents, and deficiencies in the disclosure process justified an inference that the identified breaches were not isolated.
4. Relief. The court had jurisdiction, in an appropriate case, to require information about the retention, use, and dissemination of confidential information where that information assisted enforcement of injunctive relief or helped undo harm. The relief remained discretionary and had to be proportionate.
5. Orders. The defendants were ordered to delete all remaining confidential information held electronically, including information held through Ceirios Limited and information supplied by third parties. Mr Mallett was ordered to serve a witness statement identifying persons to whom he had supplied confidential information and describing the information supplied. Delivery up and a further injunction were refused because they went beyond the agreement or were disproportionate in the circumstances.

The judgment records earlier procedural steps in the same proceedings, including a preservation order made by HHJ Jarman KC on 14 December 2021 and applications determined by District Judge Vernon in September 2023, including an application for summary judgment and an application to amend the Particulars of Claim. The present judgment was a first-instance determination of construction, breach, and relief.