May we have our emails back?

In Fairstar Heavy Transport NV v (1) Philip Jeffrey Adkins (2) Claranet Ltd [2013] EWCA Civ 886 the Court of Appeal has considered what right a company has to obtain work-related emails held by its former CEO on his personal computer.

The facts were unusual, which may be why the question proved more difficult to answer than might have been expected.  The CEO had been engaged by the claimant through his own company, and so was a consultant rather than an employee.  Following the termination of his employment, he refused (for reasons which are not clear) to comply with the company’s request for copies of all the work-related emails held on his own computer.  The company accordingly applied for an order for inspection of the content of the relevant emails.  Significantly, there was no claim by the company that the contents of the emails were confidential or amounted to trade secrets.

At first instance, the matter proceeded by way of an agreed issue, namely: did the company have “an enforceable proprietary claim to the content of the emails”.  That being the issue before him, Edwards-Stuart J at first instance concluded that the content of the emails to which the company claimed a proprietary right was “information”; that according to the authorities there can be no property in mere information; and that the company therefore did not have the proprietary right on which it  based its claim.

Mummery LJ (giving the only substantive judgment in the Court of Appeal) decided that the parties had asked the court to answer the wrong question.  For Mummery LJ, the key point was that Mr Adkins had, in his CEO role, been an agent of Fairstar.  He cited the long line of authority illustrating the rule that a principal or employer is entitled to delivery up of original documents retained or removed by an agent or employee relating to transactions undertaken on the principal’s behalf.  Although emails are electronic documents, they are documents nonetheless, and the same rule should apply to them.

The appeal was therefore allowed, with Mummery LJ deprecating the arid debate below as to the whether an email contained only “information” and as to whether “information” can ever be “property”.  He specifically declined, however, to endorse the proposition that there can never be property in information: “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”.

The point would probably have been much more straightforward Mr Adkins been an employee, since most contracts of employment and IT policies state expressly that all work-related emails belong to the employer.

The question remains open, however, as to whether non-confidential “information”, which does not amount to intellectual property, can ever be proprietary in nature.  Mummery LJ seemed to think that, depending on its nature and quality, it might.

Daniel Stilitz QC