Limits to personal disclosure

The case, Phones4U v EE & Ors [2021] EWCA Civ 116, concerned questions about the jurisdiction and discretion of the court regarding CPR Part 31 disclosure, where senior officers, employees and ex-employees may have used personal electronic devices for work-related emails and messages.

It arose in the course of a competition claim brought by Phones4U (now in administration) against other mobile network operators. The High Court ordered seven of the defendants to write to individual employees and ex-employees asking them to allow consultants hired by another defendant to search their personal devices and emails for material relevant to the case. The consultants were not to disclose any non-relevant material to the defendants, and should return the devices and emails to the individuals and delete any copies. The individuals could refuse the request.

However, the defendants questioned whether the judge had jurisdiction to order a party to request third-party custodians voluntarily to produce personal devices and emails. They asked whether the judge was justified in including a rider in his judgment but not in his order that the defendants ought not to tell the individuals that they could refuse the request.

They challenged whether the use of the consultants was appropriate and proportionate. Finally, Vodafone raised an additional argument about the General Data Protection Regulation (GDPR).

Delivering the Court of Appeal’s judgment, Sir Geoffrey Vos, Master of the Rolls, said there was ‘no jurisdictional impediment’ to the judge’s order and it was appropriate and proportionate. He dismissed the GDPR argument but agreed the judge should not have suggested in a rider what was not in his judgment.

Sir Geoffrey said: ‘It is to be borne in mind that the present case concerns an alleged unlawful agreement, which by its nature is likely to be covert. It is obvious, as the judge pointed out, that, where companies do engage in unlawful, collusive behaviour, the individuals involved may sometimes deliberately avoid using their work email or work devices so as to conceal their dealings.’