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Losing litigant's hard drive to die, but her lawyers' computer stays safe

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

There was no stay of execution of the court's order ...

Three weeks ago the IPKat reported here on the litigation between Brandeaux Advisers and a former employee, Ruth Chadwick, who had cunningly but unlawfully helped herself to a large quantity of confidential information which she anticipated that she might need in the event that a pre-existing dispute between her and Brandeaux got to court. In the earlier decision the court ruled against her, since it was open to her to apply for disclosure (or 'discovery', as the Kat sometimes fondly thinks of it) of such information as she might actually need for that purpose.

In the second ruling, Brandeaux v Chadwick [2011] EWHC 58 (QB), not yet available on BAILII but efficiently noted by Lawtel, the court (Sir Raymond Jack, sitting in the Queen's Bench Division of the High Court, England and Wales, only a couple of weeks after he officially retired) had to decide on the precise form of the order. In his view

* No case could be made for a general injunction to stop Chadwick divulging the confidential information in her possession. Brandeaux had not made out any case that Chadwick had at any time intended to divulge the information to anyone except her lawyers -- or possibly to a regulatory authority (not surprising, since was was the company's compliance officer).

* An order for delivery up should do the trick, including destruction of Chadwick's data-laden hard drive,

* If Chadwick's solicitors were subject to the same delivery up process, they would lose their own computers while it was carried out -- which would obviously create a major problem. For this reason, it would be sufficient to accept the undertakings not to disclose the information which they had offered since there was no real risk that the solicitors would do anything with the information.

* Both Chadwick and Brandeaux had behaved unreasonably in relation to the claim for delivery up, standing their ground when commonsense would have dictated a solution. In terms of costs, this meant that Brandeaux, as victors, were entitled to their costs in relation to those issues upon which they were successful, but Chadwick's conduct was not so unreasonable as to justify the imposition of indemnity costs in Brandeaux's favour.

* Chadwick's work -- for which she had not been paid -- had a value to Brandeaux, which should be taken as the amount which Brandeaux was paying her. However, since the basis upon which Brandeaux's loss was to be assessed was capable of argument to the contrary effect with a real prospect of success, the company should be allowed to appeal on that issue.

This all seems sensible enough to the IPKat, who is relieved to learn that law firms' computers are safe, at least for now, from delivery up for removal of confidential information the nature of which is of no direct concern to them.  But how far would this common sense extend? Would the court take the same view if the data was held by an independent company to which a legal practice subcontracts routine document storage and processing, for example?

How to kill your computer here and here

Full post as published by IPKat on February 02, 2011 (boomark / email).