Disclosure of Previously Stolen Documents
This article explores the legal aspects of 'disclosure' and references a civil case in which the Court made a ruling regarding the disclosure of stolen documents.
In commercial disputes, a party may sometimes seek to rely on sensitive internal documents to support their claims. These documents, if obtained without authorisation, raise questions about admissibility and whether the opposing party can still claim privilege over them.
Disclosure is an essential and important procedural step in civil litigation. During this stage, the parties review all the potentially relevant material to the case which exists or has existed. Through a formal Disclosure List, they inform the other parties of the existence of such material.
The purpose of disclosure is to ensure that, prior to any Hearing, all parties reveal not only those relevant documents they intend to use to support their case, but also any documents that exist and may be unfavourable to them.
Documents which must be disclosed include those which a party:
- retains possession of,
- previously held,
- may be entitled to require another party to hand them over or produce them for inspection,
- previously, but no longer possesses.
The description ‘document’ covers a multitude of items containing recorded information including:
- written material,
- emails,
- photographs,
- cctv/ videos,
- mobile phone texts,
- any form of social networking messages.
Failure to disclose any pertinent document may result in the defaulting party being refused permission to produce and rely upon it during a Court Hearing. Furthermore, a serious failure to comply with disclosure requirements could lead to the court throwing out the defaulting party’s case entirely and ordering them to cover all the opposing party’s costs.
Respecting the requirements in all courts is essential, as failure to do so can have severe consequences. The disclosure process can often be complex, involving numerous aspects that make it both time-consuming and technically challenging. For instance, certain material might be regarded as 'privileged' or 'commercially sensitive' information, which could be protected from disclosure.
Recently, the civil case of Payone GbmH v Jerry Kofi Logo [2024] EWHC 981 (KB) the court was tasked to consider disclosure issues where the material in dispute had been stolen by an employee from his employer.
In that case, the court had to consider whether documents that were originally stolen and later used in Employment Tribunal proceedings still retained their privilege or had fallen the public domain.
Stuart Southall of KANGS outlines fundamental aspects of the case.
The Case in Focus | Payone GbmH v Jerry Kofi Logo
[2024] EWHC 981
The Background
- The Defendant, a former employee of the Claimant, Payone GbmH, had obtained, during the course of employment, confidential information which had subsequently been disclosed during an Employment Tribunal Hearing as evidence of the Defendant’s misappropriation of such material.
- As the Defendant continued to use this confidential information, the Claimant sought an injunction to prevent him from further using it.
- The Defendant argued that, as the result of the information having been disclosed at the Employment Tribunal, it had become ‘public’ and could not be regarded as remaining confidential.
The Court Ruling
The Court found in favour of Payone GbmH considering that the documents had not become ‘public’ and retained their confidentiality.
The Court took into consideration the following:
- Whilst the Judgment of the Employment Tribunal was public information, the documents produced and examined at the Hearing are only accessible by specific request. Upon this basis, the documents said to be ‘confidential’ had not become ‘public’ information.
- As the documents had been stolen by the Defendant, the Claimant had not had a chance to object to their use. Had they not been stolen; it is likely that the Claimant would have objected to their use given their confidential nature.
- There was no journalistic or public interest in the disclosure of the documents.
- The Defendant had acted in a ‘vexatious and abusive’ manner throughout the proceedings.
How Can We Assist?
The Team at KANGS boasts extensive knowledge and expertise in all aspects of the 'discovery process' in commercial litigation, navigating the intricate details as required by the civil courts. With a proven history representing clients in major disputes, we ensure that every piece of evidence is meticulously analysed and strategically leveraged to build compelling cases.
With our commitment to thorough preparation and our comprehensive understanding of legal procedures, we are well-equipped to effectively represent our clients, securing the best possible outcomes even in the most challenging legal situations.
If we can be of assistance, please do not hesitate to contact our team using the details below:
Tel: 0333 370 4333
Email: info@kangssolicitors.co.uk
We provide initial no obligation discussion at our three offices in London, Birmingham, and Manchester. Alternatively, discussions can be held through live conferencing or telephone.
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