Access to E-mails: Court of Appeal Judgment in Fairstar

July 25, 2013

In Fairstar Heavy Transport NV v Adkins & Anor [2013] EWCA Civ 886, the Court of Appeal had to address the issue of whether Fairstar was entitled to an order requiring its former CEO, Philip Adkins, after the termination of his appointment, to give it access to the content of e-mails relating to the company’s business affairs. The relevant e-mails were stored on his personal computer in England but were sent or received by him on behalf of the company.

The original hearing on the access issue focused on the question of whether there was a proprietary right in the e-mails. Much argument and many pages of academic discussion were devoted to that question following the High Court judgment. In the Court of Appeal, Mummery LJ did not consider it appropriate to consider the answer to that question given in the High Court: so far he was concerned, whether the answer was right or wrong mattered little; it was the wrong question to ask. He had no doubt that Faristar were entitled to access the e-mails: ’emails and their content stored and held in the computer are… either documents or should be treated as documents, for the purposes of determining the scope of the legal incidents of the agency relationship that survive its termination’.

The relevant part of the judgment is worth reading at greater length. Mummery LJ said:

  1. In my view, it is unfortunate that the agreed wording of the preliminary issue introduced an unnecessary complication into the dispute. The reference to a “proprietary right” was a distraction from the centrality of the agency relationship and its legal incidents. No competing claims of third parties are involved. Fairstar’s claim is against Mr Adkins. The assertion of a right to inspect and copy the content of the emails on his computer relating to its business affairs arises from the legal incidents of an agency relationship that survive its termination. That question can be decided, as between those parties, without a jurisprudential debate about the legal characteristics of “property”, or whether the content of the emails was “information” in which property existed in this case or could exist at all.
  1. Everybody knows that “property” differentiates between things that are mine and things that are not mine. The law lays down criteria for determining the boundary between, on the one hand, those rights that are only enforceable against particular persons and, on the other hand, those rights attaching to things that are capable of being vindicated against the whole world. The claim to property in intangible information presents obvious definitional difficulties, having regard to the criteria of certainty, exclusivity, control and assignability that normally characterise property rights and distinguish them from personal rights.
  1. In my judgment, the court should decline to enter into a controversy of that kind when it is not necessary to do so in order to decide the case on its particular facts. It would be unwise, for example, for this court to endorse the proposition that there can never be property in information without knowing more about the nature of the information in dispute and the circumstances in which a property right was being asserted. Some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life.
  1. The conclusion that I have reached on this appeal makes it unnecessary to explore the question whether information in the content of the emails is property owned by Fairstar, either as a matter of fact or law. The distinction drawn in the preliminary issue between an electronic communication and the content of it and the claim to a proprietary right in the content was not the real point at issue. It has led to some confusion in the arguments advanced and to error in the outcome. As explained below, the position is that emails and their content stored and held in the computer are, in my view, either documents or should be treated as documents, for the purposes of determining the scope of the legal incidents of the agency relationship that survive its termination.
  1. In my judgment, the judge ought to have made an order for inspection of the emails on the computer. He was not prevented from doing so by his conclusion that there was no proprietary right in the content of the emails. The absence of a proprietary right would not affect the legal right of the principal to an inspection and copying remedy against a former agent in respect of the emails. It was not necessary to decide the property issue in order to make the order for inspection or copying. To ask in a case like this the questions such as “Is there property in an email?”, or “Who owns the content of an email?” is not a helpful way of stating the real issue, which is not one of ownership of property claimed against the world. The issue is one of enforcement, as between the parties, of particular rights of access by a remedy of inspection and copying, which is based on rights and duties incidental to the relationship that existed between the parties at the relevant time.
  1. In brief, Fairstar is entitled to the relief claimed by it against Mr Adkins for the following reasons:
  1. First, their former relationship had been that of principal and agent.
  1. Secondly, as a general rule, it is a legal incident of that relationship that a principal is entitled to require production by the agent of documents relating to the affairs of the principal.
  1. Thirdly, as Black LJ observed in the course of argument, “documents” may, depending on context, include information recorded, held or stored by other means than paper, as is recognised in the Civil Procedure Rules. In CPR 31.4 “document” means “anything in which information of any description is recorded” and “copy” means, in relation to a document, “anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly.” Those follow the same definition used in legislation. According to the notes to CPR 31.4 ” While the word [document] in non-legal usage is commonly associated with information recorded only on paper, the true meaning of the word is far wider, reflecting its derivation from the Latin “documentum” referring to something which instructs or provides information. The term extends to electronic documents, including emails: see Practice Direction 31B, para 1″. In that context content cannot be separated from form, since a blank sheet of paper providing no information would not be a document and a blank electronic communication would not be an email.
  1. Fourthly, materials held and stored on a computer, which may be displayed in readable form on a screen or printed out on paper, are in principle covered by the same incidents of agency as apply to paper documents. The form of recording or storage does not detract from the substantive right of the principal as against the agent to have access to their content.
  1. Fifthly, as for the authorities cited to the judge and in this court on whether there can be property in confidential information, or whether there is property in the content of a letter, as distinct from the paper on which it is written, they relate to a point that does not need to be decided. Quite apart from the existence or non-existence of property in content, Mr Adkins was under a duty, as a former agent of Fairstar, to allow Fairstar to inspect emails sent to or received by him and relating to its business. The termination of the agency did not terminate the duty binding on Mr Adkins as a result of the agency relationship.
  1. Finally, no objection was taken to the jurisdiction of the English Court, as distinct from the Dutch Courts, to decide a claim to the content of the emails. The objection was that the claim had no legal foundation, as it was advanced as a purely proprietary claim to ownership of information contained the emails. The judge ought to have rejected that objection for the reasons given above.