The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Stage 1 of misuse of private information and breach of confidence: more guidance but it always turns on the facts

30 March 2022

Brake & another v Guy & anor [2022] EWCA Civ 235

Hot on the heels of ZXC in the Supreme Court, we have another decision on the first stage of the test for misuse of private information (MPI). This is part of a long-running and hard fought litigation saga between the Brakes and the Guys involved six linked but separate trials along with multiple appeals, all of which have been ‘characterised by complex factual disputes and extensive legal argument.’ But the facts for this appeal are relatively simple: Mrs Brake had use of a general email account for a business owned by Dr Guy, and had used it for personal as well as business emails. When she was fired, Dr Guy offered to provide her access to the general account subject to undertakings about commercially sensitive information, but these offers were refused. Dr Guy authorised various others to access the accounts in relation to other litigation. Eventually, the Brakes issued proceedings asserting rights of privacy and confidentiality over the general email account and claiming in MPI, for breach of confidence and infringement of their data protection rights.

At first instance, HHJ Matthews (sitting as a HCJ) held that the account was not confidential or private to Mrs Brake. He held that any distress as a result of disclosure of personal emails was ‘at best, a case of limited damage’, not least because ‘no reasonable person of ordinary sensibilities would be substantially offended’. He also held that it was not an MPI or a breach of confidence to disclose information, in confidence, to a lawyer or other professional advisor for the purpose of obtaining advice.

The appeal was solely on breach of confidence and MPI, not data protection. There was no challenge to the facts found, just the application of law to the facts. The Court of Appeal noted that the burden of proof as regards reasonable expectations of privacy/confidence was on the claimants, and that they had not surmounted this. Applying ZXC, the fact that certain types of information are generally treated as private does not give rise to any legal presumption, so simply demonstrating that individual documents are of a certain type does not discharge the burden of proof.

The Court also looked at the wider circumstances: this was a general email account to which more than one person had access, and Mrs Brake’s personal emails were not stored separately or marked in any way as personal. They did not find any assistance in the Strasbourg caselaw on monitoring of workplace emails.

The only crumb of comfort for the Brakes was that the Court of Appeal thought the judge may have been wrong to go on to consider whether stage 2 of the MPI test was made out, in circumstances where matters to be dealt with in other trials that might be relevant to the balancing exercise were as yet unresolved. But since the Court of Appeal held that he was right to have ruled that there was no reasonable expectation of privacy or confidence, the appeal failed.

This judgment emphasises the importance of the facts of each case in MPI and breach of confidence claims, and underlines how difficult it is in this field to make broad brush statements about what will, or will not, be private. It also underlines the importance of a pragmatic approach: it is difficult to see why Dr Guy’s earlier attempts to reach a sensible resolution were rejected, and the costs of litigating this issue will have been substantial.

Further reading

Brake & another v Guy & anor [2022] EWCA Civ 235

The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.

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