The Data Brief

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

Using private information in litigation

31 January 2023

FKJ v RVT [2023] EWHC 3 (KB)

This case highlights the (unsurprising) complexities of accessing your employees’ private information to use against them in misconduct and subsequent legal proceedings.

The Claimant, a solicitor, had been dismissed by her employers. She sued, and lost, in the Employment Tribunal alleging among other things sexual harassment. Her employer relied on 18,000 WhatsApp messages between the Claimant, her partner and others that significantly damaged the Claimant’s credibility on the issue of sexual harassment. The Claimant next sued her employers in the High Court for misuse of private information, alleging that her employers hacked her phone to access her WhatsApp messages. The Defendants denied that, filed a counterclaim including for malicious prosecution, and applied to strike out the claim and for summary judgment and for an interim payment/payment on account of costs.

Master Davison dismissed all the Defendant’s applications. First, the claim was of value and was not res judicata (it being argued that it should have been raised as an interim matter in the Employment Tribunal proceedings). Second, and more interestingly, the counterclaim of malicious prosecution was, especially insofar as the issue of malice, an untested area of law and unsuitable for summary judgment.

So, this case will go to trial. Watch this space to find out who the Courts find more culpable: the employee whose private information undermined their tribunal claim, or the employer who may have unlawfully accessed that information and weaponised it.

Judgment: click here


Francesca Whitelaw KC

Call 2003 | Silk 2023

Robert Talalay

Call 2010

Aaron Moss

Call 2013

John Goss

Call 2015

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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