Sarah Lynette Webb v Lewis Silkin Llp

My ruling is that the application should continue in public. If, at any stage, either counsel intends to refer to matters which are truly confidential and is not able to do so in the way in which I would regard as a normal way, that is by not stating in public, in open court, what it is that they wish to refer to, but referring the judge to where the relevant matter can be found in a document, then, at that stage, the application can be renewed, but I do not anticipate that that will be necessary.

The principle of open justice is well-known to be an important one and I was shown by Ms. Marzec a recent decision of the Court of Appeal in Global Torch Ltd. v Apex Global Management Ltd. [2013] EWCA Civ 819 which restates the importance of the open justice principle by reference not only to the landmark decision of the House of Lords in Scott v Scott [1913] AC 417, but also to the Practice Guidance issued by the then Master of the Rolls, Lord Neuberger [2012] 1 WLR 1003, the latter indicating that derogations from the general principle of open justice can only be justified in exceptional circumstances when they are strictly necessary as measures to secure the proper administration of justice.

At para.12, that Practice Direction says:

“There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done.”

I am satisfied that there is some material which is prima facie confidential. That, in particular, is the nature of the allegations which were made in the arbitration. The fact that the claimant in this action was involved in an arbitration with her former firm of solicitors is already in the public domain because it was referred to in a judgment handed down by Proudman J in February of last year, I believe, but the details of the allegations and indeed, as far as I am aware, the outcome and the awards made in the arbitration are not in the public domain and I accept that the general cloak of arbitral confidentiality entitles the parties to that arbitration, which includes the firm of solicitors who are not a party to this action, to protection from having that confidential material revealed to the public. However, I am not satisfied that that makes it strictly necessary to have the hearing in private.

Miss Skinner very helpfully showed me two provisions of the CPR, one in 39.2(3), which enables a hearing to be in private if, among other things, it involves confidential information and publicity would damage that confidentiality and, secondly, a provision in 31.22, which deals with disclosed documents, which states that documents may only be used for the purpose of the proceedings in which they are disclosed, except where they have been referred to at a hearing held in public, but the court may make an order restricting or prohibiting the use of a document which has been disclosed even though it has been referred to at a hearing held in public. I accept her submission, but that is only dealing with documents that are disclosed; it does not deal with other documents, such as the statements of case in this action or witness statements.

Miss Skinner referred me, thirdly, to 32.12 of the CPR which says that a witness statement may be used only for the purpose of the proceedings in which it is served, but that does not apply to the extent that:

“... the witness statement has been put in evidence at a hearing held in public.”

I accept that that, by itself, would suggest that the court does not, under the CPR, have power to prohibit the use of witness statements which have been put in evidence. I have not been shown passages in the witness statements, as such, as opposed to the exhibits or the statements of case, which refer to the material which I have previously identified as confidential and it does not seem to me that the matters which are confidential need to be referred to for the purposes of resolving this application.

I am, in fact, aware both of the nature of the allegations that were made in the arbitration and of its outcome, but it does not seem to me that this application requires any investigation or reference to those matters and, in those circumstances, it does not seem to me strictly necessary to have the hearing in private to enable the matters which are in issue in this application to be properly argued. As I say, if, at any stage, it becomes apparent that counsel considers that reference will have to be made to a truly confidential matter, the application can be renewed but, at this stage, I see no reason to exclude the public from the hearing.

I have before me an application by the claimant (who I will call ‘Mrs. Webb’) to make a statement in open court, this being an action in which she complained of infringement of her rights to privacy. Statements in open court have a long history in relation to defamation claims but, in 2011, the procedure was extended to private information cases by an amendment to the Practice Direction to Part 53, para.6.1 of which now reads:

“This paragraph only applies where a party wishes to accept a Part 36 offer or other offer of settlement in relation to a claim for –

(1)

libel;

(2)

slander;

(3)

malicious falsehood;

(4)

misuse of private or confidential information.”

Paragraph 6.2:

“A party may apply for permission to make a statement in open court before or after he accepts the Part 36 offer in accordance with rule 36.9(1) or other offer to settle the claim.”

Paragraph 6.3:

“The statement that the applicant wishes to make must be submitted for the approval of the court and must accompany the notice of application.”

In this case, the brief background facts are that the claimant, a solicitor, was involved in an arbitration with the partners of her former firm (which I will refer to as ‘S’) and in the course of that arbitration a question arose as to the access to the email account that she had had while a partner at S. She made it clear in correspondence that she had used that email account for private as well as work emails and, in the circumstances, which I need not detail, after certain correspondence in which S’s solicitors, who are the defendants to this action, a firm called Lewis Silkin LLP, made it clear that they reserved a right to access the email account, they did, in fact, do so.

They searched the email account on three separate occasions, once in August 2013, once in October 2013 and once in December 2013. As a result of that, a very small number (eight, I believe) of emails were disclosed in the arbitration and Mrs. Webb then became aware that they had accessed the email account. She complained that that was an infringement of her rights to privacy and she brought these proceedings.

In the course of these proceedings, a judgment was given by Proudman J in February of last year concerning the question whether it was necessary to obtain consent from the arbitrator for the proceedings to continue, which put some of the information in the public domain, namely that she had been involved in an arbitration and the nature of the allegations made on both sides in this action. Then, in September of last year, Master Teverson, on the application of Mrs Webb, ordered production of the results of the searches. That was complied with on 13th October of last year.

My understanding of what I was told was that that exercise in October produced a CD-ROM which, when printed out, filled some 16 lever-arch files and was a mixture of personal emails and work emails. However, there was no evidence before me as to how much personal information was involved at that stage because Mrs. Webb’s solicitors, Carter-Ruck, took the view that they could not or should not look at documents which might be privileged.

There was also included a list of copies of documents in, I think, PDF form which were a small selection, I was told some 20 to 25 documents, which had been thrown up by the search and been selected by the individual at Lewis Silkin carrying out the search for review by a partner, Ms. Temperton, and included in that was one email from a PA who had been PA to Mrs. Webb which forwarded to her an email which the PA had sent on Mrs. Webb’s behalf to her husband and which contained undoubtedly private information. That is referred to in the evidence as ‘the KL email.’

Then, in November 2015, standard disclosure in this action took place and that included, on what I was told was a generous basis, all emails of a non-professional nature which had been accessed, which I am told amounts to some 565 emails. Although they are all of a non-professional nature, that does not mean that all 565 emails contain personal or confidential material of a type that would attract the label ‘Private.’

It has been said that included in those documents were another four documents containing communications with Mrs. Webb’s husband and, in a letter by her solicitors, Carter-Ruck, dated 1st December, they were described as “concerning arrangements, including financial arrangements, in relation to our client’s now husband” and as being highly sensitive and private, and also two versions of a letter to her family lawyers containing material which was said to be highly confidential and privileged.

A payment into court was made on 18th November by the defendant in this action and that was accepted in December 2015. That has brought the action to an end, save for this question of a statement in open court.

I was told that, in practice, very often, statements in open court are agreed and, where they are agreed, it is obviously not difficult for the court to give approval for them to be read, the main concern in such cases being that there is no potential prejudice to any third party. However, it is clear and common ground that if, as here, the statement is not agreed, the court can approve a unilateral statement to be read on behalf of a claimant who has accepted a settlement of the action and this is what Mrs. Webb asks me to do in this case.

It appears that the historical reason why, in defamation cases, statements in open court were permitted was in order to enable the claimant to set the record straight. In a case of defamation, it would very often be the case that a statement which is defamatory of the claimant has been put into the public domain and, were the action to be settled and nothing more to be said, there would be no opportunity for the claimant to put the record straight. The purpose of doing so was stated in a case called Wolseley v Associated Newspapers Ltd. [1934] 1 KB 448-453, where Greer LJ said:

“The rule of law, before this new rule was passed [that being a reference to a change in the Rules in 1933], was that there could not be a plea of payment into court in a libel action with a denial of liability for the obvious reason that what a plaintiff who had been, or who said that he had been, libelled or slandered wanted, just as much as money compensation, was the opportunity for stating in open court, and proving if necessary, that he was not the villain he was alleged to be by the defendant and it was felt, when these new rules were made, that it was right, if the privilege was granted to the defendant of paying money into court with a denial of liability and the money was sufficient to satisfy the plaintiff’s claim, so that the plaintiff went on at his peril, that the plaintiff should have that which he would have had before - namely the opportunity to make a statement in open court, with the approval of the judge in Chambers, so as to clear his character from the alleged slander, and that was the reason for the provision in sub-r.4.”

In a case called Barnet v Crozier [1987] 1 WLR, 272 at 279, Ralph Gibson LJ said:

“It seems to me that an opportunity to make a statement in open court was thus seen more than 50 years ago as something which was an incident, or part of the available procedure, in a defamation action which the plaintiff was at least entitled to expect to be available to him, provided that the terms of the statement were approved by the judge and there was nothing in the case which made it unfair to another party to the statement to be made.”

He then said, later on, as follows:

“The judge was right, in my view, to regard the settlement of proceedings as a public good which the court should encourage and facilitate if, having regard to the interests of all the parties, it is right and just so to do. Although a party has no right to make a statement in open court upon which he can insist, if the circumstances are such that the judge cannot in his discretion approve that course, it seems to me that parties who have made a bona fide settlement of a defamation action and ask leave to make a statement in open court may expect to be allowed to do so unless some sufficient reason appears on the material before the judge why leave should be refused to them.”

Then, further along:

“If there is no sufficient reason to refuse it, a plaintiff who has reached a settlement with a defendant should be allowed to make an approved statement.”

That, of course, was in the context of defamation. A more up to date consideration in the context of defamation is found in the judgment of the Court of Appeal in Murray v Associated Newspapers Ltd. [2015] EWCA Civ 488, a judgment of Sharp LJ, at paras.25 to 29. The passage is too long to read out in its entirety, but it is apparent from para.25, firstly, that she regarded a statement in open court as:

“... often a valuable endpoint to litigation brought to achieve vindication since it provides a means for more publicity to be given to a settlement and, therefore, to a claimant’s vindication than might otherwise occur. Such statements often include an explanation of why proceedings were brought, why what was said was particularly hurtful or damaging, and the effect that the publication complained of, and of events associated with it, has had on a claimant.”

Then, at para.26, she referred to the passage I have already referred to in the judgment of Ralph Gibson LJ, that parties who have made a bona fide settlement may expect to be allowed to make a statement in open court unless there is some sufficient reason not to. At para.27, she went on to say this:

“The court is unlikely to intervene in the absence of any real or substantial unfairness to the objecting or other third party and ‘nit-picks’ are to be discouraged. This relatively high threshold for intervention is correctly calibrated in my view, for two reasons. First, because as the judge pointed out, a party making a statement in open court is exercising their right to freedom of expression and the court should not be too ready to intervene in those circumstances, not least because a defendant is free to say what it wants about the settlement, without interference from a claimant. Secondly, the value of the procedure might be undermined if disputes preceding settlement were permitted to leach too readily into the settlement mechanism designed to bring the proceedings to an end, thereby giving rise to further, collateral disputes.”

At para.28, she referred to the possibility of a defendant having an opportunity to say, if he thinks there is any unfairness in what is proposed, “that a claimant is significantly ‘over-egging the pudding’ or travelling impermissibly outside the case and exaggerating its effect.” At para.29, she went on to say this:

“I quite accept that a statement in open court (whether unilateral or joint) must be fair and proportionate. It should not misrepresent a party's case, or the nature of any settlement that is reached. The interests of third parties should also be borne in mind having regard to the fact that a statement in open court is made with the benefit of absolute privilege, and so can be freely reported. Beyond that however, I think it would be unwise to be overly prescriptive. What is fair and proportionate for litigants to say in a statement in open court must depend on the facts.”

I was also referred to two other first instance cases in relation to the practice in defamation cases, one before Judge Previte QC, sitting as a Judge of the High Court, in Charlton v EMAP plc & Ors. TLR 11 June 1993. He deduced various principles at p.6 of the report, having earlier referred to a case called Eyre v Nationwide News Pty Ltd [1968] 13 FLR, 180, a decision from Australia, where he said:

“Much of the utility enabling an action to be disposed of by a payment into court could be lost, if the same issues which would be decided if the action litigated had to be resolved on a summons for leave to make a statement in open court.”

Then, having done that, at p.6, he deduced the following principles:

“(1)

A judge should be slow to refuse a plaintiff leave to make an appropriate statement in open court, especially where the matter complained of as being defamatory has received wide publicity; in the absence of any formal right of reply, such a statement may be the plaintiff’s only opportunity to vindicate his reputation.

“(2)

One of the factors which may persuade the judge to refuse leave is the smallness of the sum paid into court, when compared to the seriousness of the libel.

“(3)

In any event, the judge should not give leave to the plaintiff to make a statement in open court to which the defendant can take legitimate exception. In such an event it would be difficult to refuse an application by the defendant, under the rule, for leave to make a counter-statement in open court, which could give rise to a most unsatisfactory situation.

“(4)

The seriousness of the libel, the nature of the defence, the amount of the payment in, and the fact that the payment in of itself implies no admission to the merits of the plaintiff’s claim are all matters to be taken into consideration by the judge who is asked to approve the form of the statement. This list is not intended to be exhaustive: in any particular case there may well be other relevant matters.”

He then went on to accept that Mr. Warby was right in saying there would be “great practical difficulties” if the court were to follow the ruling of Gibbs J in Eyre v Nationwide and attempt to resolve disputed questions as to the truth of publication. He said:

“In my judgment Mr. Warby was correct not to rely on that part of the judgment which would require the court to attempt to resolve disputed questions as to the truth of the publication. In a case such as this that would be an impossible task without embarking on a full scale trial of the action.”

A little later on, he went on to say:

“On the other hand, the court can and should, in my view, take into account the pleaded cases of the parties and, whilst not attempting to resolve any conflict, should endeavour to ensure that the rival contentions are referred to in the statement. Thus whilst, on the one hand, the plaintiff should be entitled to say that the allegations are entirely false, on the other hand, if there is a fully particularised defence of justification, the statement should record that the defendants have always maintained that the imputations complained of could be justified.”

That attempt to be even-handed can be contrasted with the more recent statement by Eady J in Winslet v Associated Newspapers [2009] EWHC 2735 (QB). The main decision he came to was that the offer of amends procedure did not prevent the claimant from making a statement in open court, but he did, in the course of his judgment, describe a unilateral statement in open court as simply representing the claimant’s point of view and that would be obvious from the very fact of its being unilateral. When looking at the statement in open court being put forward by the claimant in that case, he said as follows at para.6:

“I am unable to find anything in this draft that is inconsistent with the way she has pleaded or expressed her complaint from the outset.”

Finally, at para.23, he said as follows:

“I see no reason why the claimant should not also be allowed to publicise her understanding of the settlement, provided she does so in a fair and proportionate way.”

Those being the relevant authorities, there was not a great deal of difference in principle between counsel, that is Miss Skinner, who appears for the defendant, and Ms. Marzec, who appears for the claimant, but there was one dispute of principle and that was this: Ms. Marzec says that now that the practice of making a statement in open court has been extended from defamation cases to misuse of private and confidential information cases, in just the same way as those authorities, which are all concerned with defamation cases, make it clear that a claimant can normally expect to be able to make a statement in open court, it must be assumed that the purpose behind the extension of the procedure to cases like this carries with it a similar expectation so that the claimant, having accepted a settlement of the action, can normally be expected to be allowed to make a statement in open court to vindicate her position and say publicly, and in a forum which will provide her with absolute privilege, what she wants to say about the action, the distress she has felt and her perception of the settlement.

Miss Skinner says that, in a case like this, where there has been no or very little public dissemination of the private information which was accessed, that vindication does not apply in the same way. Her submission was that a case of this type is not an appropriate case for the court to exercise its discretion to permit a statement to be made at all. The foundation of the right to make a statement, as can be seen from the citations from the older authorities, was because the claimant’s rights had been publicly traduced and making such a statement would enable the claimant to set the record straight so that there is, on the public record, a correction of what would otherwise stand as false allegations against her. In this case, the case has scarcely been in the public domain and there is no need to protect the claimant’s privacy or vindicate her rights to privacy by making a public statement. That is not something which a claimant whose other rights have been infringed is entitled to and there is no reason in this case why it should be resorted to. This is not a case like the hacking cases where, in many cases, private information had been used by newspapers to tell stories in public about the claimants and the claimants wished to put their side of the story into the public domain as a quid pro quo. This is a case where the content of the private information has never been published and even the fact of the accessing of the email account is not something that has been widely disseminated.

It seems to me, on this point, that Ms. Marzec’s submissions are to be preferred. Neither counsel was able to refer me to any preparatory or explanatory material for the extension of the statement in open court procedure to a privacy case but, in circumstances where the authorities show clearly that a claimant in a defamation action is normally entitled to expect, on a settlement of the action, that they will be allowed to make a statement in open court, provided that it is fair and reasonable and proportionate, and provided, as is illustrated by a case I have not referred to, Church of Scientology of California v North News Ltd., that the court does not think that the amount of money accepted by the claimant really gave no indication that there was anything in the case, a principle which was referred to by Judge Previte:

“... the smallness of the sum paid into court, when compared to the seriousness of the libel.”

Other than cases like that, it does appear from the defamation cases that a claimant who accepts a payment into court in settlement of the action has a right to expect that a fair and reasonable statement, not prejudicial to third parties, is one that they will be allowed to make. It seems to me that, the procedure having been extended to privacy cases, the same ought to apply and that the general expectation should be that a claimant who settles a claim for breach of confidence should normally be able to expect to make a statement in open court setting out the nature of the case and the effect of the case on them and their perception of the settlement.

I go back to the description by Sharp LJ of what is normally found in a statement in open court, at para.25 of the Murray case, where she said as follows:

“Such statements often include an explanation of why proceedings were brought, why what was said was particularly hurtful or damaging, and the effect that the publication complained of, and of events associated with it, has had on a claimant.”

It does not seem to me that a case of breach of privacy gives rise to any very different considerations. One would expect, in a case of breach of privacy, that a statement in open court would explain why proceedings were brought, why not what was said, but what was done was particularly hurtful or damaging and the effect that, in this case, not publication, but the breach of privacy complained of and events associated with it has had on the claimant. That enables, as she says, “more publicity to be given to a settlement and, therefore, to a claimant’s vindication than might otherwise occur.”

It is true that in a case where what is at stake is not the claimant’s reputation but her privacy, the nature of the vindication that she wants is different and is not a case so much of setting the record straight as a case of being able to point to a public statement that her rights have been infringed and the effect that that has had on her, but I do not see that as giving rise to such a sharp distinction with the case of defamation as to mean that, in a case such as this, it is inappropriate to allow a statement in open court to be made at all. It is true that many defamation cases involve wide publicity, but some defamation cases do not and I do not detect, in the authorities I was shown at any rate, any suggestion that the extent to which the libel has been disseminated is a relevant consideration in deciding whether a claimant should be able to make a statement in open court.

On the first issue of principle, therefore, which, as I say, was the only real issue between the parties on the law, I hold that the principles established in relation to defamation cases apply with equal vigour to the privacy cases and, in the absence of any indication, either in the Practice Direction or anywhere else, that different principles should apply, a claimant in a privacy action such as this who has accepted a payment into court is entitled to expect that she will be able to read a statement in open court, provided it is one which the court can approve the content of.

I go on to the question as to whether the claimant’s draft should be permitted in the form in which she has put it forward. It appears, from the authorities, that there are two separate questions. One is whether it is at all prejudicial to third parties and the second is whether it is a fair and proportionate statement with regards to the facts.

So far as third parties are concerned, only one point has been taken by Miss Skinner and that is that the draft refers to the firm of solicitors, S, by name. In this action, Proudman J, in her judgment, did not refer to the firm of solicitors by name, but referred to them as ‘S,’ and it does not seem to me that it is important, and indeed Ms. Marzec accepted that it was not a point of great importance, that the firm of solicitors should be named in the draft. Her complaint in this action is not against that firm, that is merely part of the background; her complaint is against Lewis Silkin. I should say that it has been pointed out in evidence that Proudman J’s judgment has been reported and since that reveals that Mrs. Webb, by name, has been involved in arbitration with a firm of solicitors of which she was a partner, anyone with the time and inclination to do a bit of research would probably not find it difficult to make a well-educated and informed guess as to who the firm of solicitors might be. Nevertheless, it does not seem to me to be necessary for any of the objectives which the claimant wishes to achieve to identify that firm by name, but I apprehend that, on that point, it is not a point which Ms. Marzec is particularly concerned about. I do not say any more about unfairness or prejudice to third parties because nothing else has been suggested.

The real argument has been over whether the draft fairly puts the position as between claimant and defendant. I have been concerned by the statement of Judge Previte in the EMAP case that, whereas the court should not attempt to resolve any conflict on issues which, by definition, have not been tried, the court should endeavour to ensure that the rival contentions are referred to in the statement, and he gave the example, as I have referred to, that, if there is a fully particularised defence of justification, the statement should record that the defendants have always maintained the imputations complained of could be justified.

However, when one reads that against the background of the more recent authorities, particularly the judgment of Sharp LJ in Murray v Associated Newspapers, one can see two things. Firstly, the way in which she puts it is that the statement must be fair and proportionate and should not misrepresent the party’s case or nature of any settlement that is reached, but, beyond that, it would be unwise to be overly prescriptive and what one is looking for is any real or substantial unfairness to the objecting party, which calls for a relatively high threshold for intervention.

Secondly, both in that judgment and in the judgment of Eady J, it is made clear that a unilateral statement by a claimant is not intended to be, even though approved by the court, a substitute for a bipartisan, bilateral statement. It is the claimant’s statement. As Sharp LJ puts it, a party making a statement in open court is exercising their right to freedom of expression and the court should not be too ready to intervene in most circumstances, not least because the defendant is free to say what it wants about the settlement without interference from the claimant. As Eady J stated, in the passages I have referred to, what the claimant is doing is representing her point of view, which is obvious from the fact that it is a unilateral statement, and she should be allowed to publicise her understanding of the settlement, provided that she does so in a fair and proportionate way.

I take from the authorities as a whole, therefore, a relatively non-interventionist approach on the part of the court to allow the claimant to say what she wants to say about the settlement, about why she brought the action, what was particularly hurtful or damaging about it, what the effect of the publication, or in this case invasion of privacy, complained of was and what she wants to say about the settlement. I also take to heart what both Judge Previte and Sharp LJ say about the court not seeking to resolve the issues in the action. That, as Judge Previte says, would negate the purpose of a settlement. The way it is put by Sharp LJ is:

“ ... the value of the procedure might be undermined if disputes preceding settlement were permitted to leach too readily into the settlement mechanism designed to bring the proceedings to an end ...”

This case, I think, is a good example of the dangers of that. It is apparent that, despite the fact that the parties have settled the action, the perception of the claimant as to what happened and how serious it was and whether her rights were breached and whether the circumstances were serious or not is significantly at odds with the defendant’s perception of what had happened. The defendant has made it clear to me, through Miss Skinner, that the defendants have never accepted that they did anything wrong, that they had, as she put it, solid grounds for defence, that they continue to believe that the claimant has not, in fact, had her rights infringed and that they made the settlement they did for what are described as ‘commercial reasons.’

It does not seem to me that I can or, in accordance with the authorities, should do anything towards seeking to resolve those very contentious issues. The very purpose of a settlement is to avoid resolving those issues. It is in that spirit that I look at the draft that is put forward by the claimant, not to see whether it is what I would regard as a neutral exposition of both parties’ cases, but to see whether it is fair and proportionate in the sense described by Sharp LJ and that, in particular, it does not misrepresent either party’s case or the nature of any settlement that is reached.

There is no substitute to going through the objections which are made, one by one, and giving my views on them. The first objection, apart from the name, which I have already dealt with, is to para.3 of the draft statement. Paragraph 3 in the draft is as follows:

“In the course of the arbitration, the defendant informed the claimant that it intended to access the email account operated by the claimant whilst a partner with [S] and held on the servers of [S] for the purpose of obtaining emails that were said to be potentially relevant to the arbitration proceedings. The claimant informed the defendant that the email account contained legally privileged and sensitive personal and confidential information and that therefore she did not consent to the emails being accessed by [S] or any third party acting on their behalf.”

What is said is that that does not indicate, as indeed the claimant in correspondence did indicate, that the account in fact included certain emails that were relevant. That is true but, nevertheless, I do not regard the draft at para.3 as containing anything which misrepresents the position or is unfair. The statement that the email account contained legally privileged and sensitive personal confidential information cannot, I think, readily be equated with a statement that it only contained such information and, when one reads the paragraph as a whole, it is clear that the defendant was saying that there were emails that were potentially relevant. I regard this criticism as coming within the category of ‘nit-picks’ which are to be discouraged.

Paragraph 4 reads as follows:

“Despite this, a number of searches of the email account were made by employees and members of the defendant. The claimant found out about this only when a number of personal emails from the account were disclosed on behalf of [S] in the arbitration.”

That is objected to by Miss Skinner because the words “despite this” when read back with the previous paragraph must be read as, “despite the fact that the claimant had informed the defendant that there was personal and confidential and, indeed, privileged information on the account and that she did not consent to it, searches were made.” Again, it seems to me that this falls into the category of ‘nit-picking.’ The statement that, despite the claimant’s refusal to give consent to access the email account, the defendant did search the account is entirely true and cannot be disputed. What the defendant wishes to say is that it had made it clear in correspondence that it reserved the right to do that, that it regarded the obligations of disclosure in the arbitration as making it necessary to do that and that it sought to avoid looking for private information that it did have, but none of that, I think, means that the statement as in the draft at para.4 is unfair or misrepresents the defendant’s case.

Paragraph 5 sets out the upset that the claimant felt. It is not objected to apart from one phrase, which is that it is said that the impact of discovering that third parties had accessed and read her private and personal communications in flagrant breach of her rights deeply upset the claimant. It is the words “in flagrant breach of her rights” which the defendants take very great exception to.

The defendant’s position is and always has been that there was, in fact, no breach of Mrs. Webb’s rights. That defence rests in part on an email policy which applied to the email account under which it is said that she could have had no reasonable expectation of privacy. Objection is taken to the word ‘flagrant’ which is characterised as effectively suggesting that there was a deliberate and knowing breach of her rights.

I can see why the defendant objects to this. However, having said that, it is not the function of the court in approving this statement to see that it puts both sides equally, but that it is the court’s function to see that the claimant is able to put her perception of the litigation and the settlement as she wishes to do, in accordance with her rights of freedom of expression, so long as it is not unfair and disproportionate, it seems to me what she is there saying is why she felt so upset and that what upset her so much is the discovery of the fact that third parties had read her private and personal communications in what she regarded as a flagrant breach of her rights.

Paradoxically, the impact of my giving this judgment will, in itself, enable the defendant’s side not to be lost from the public record because I am quite happy to record that the defendants take exception to any suggestion that they deliberately and knowingly breached the claimant’s rights. Having said that, I do not think that I should stop the claimant from saying that that is what upset her, that being part of why she regarded the acts complained of as particularly hurtful or damaging.

The next and, I was told, ultimately the most significant of the disputes between the parties is in para.6. As drafted, para.6 reads:

“The defendant denied that the review of the claimant’s emails was improper or unlawful. It also asserted that any breach of the claimant’s rights was trivial or de minimis. However, in the course of these proceedings, following disclosure, including an application for specific disclosure, the claimant discovered the hundreds of personal emails were reviewed and read.”

The objection by Miss Skinner to this is that this bare statement of the defendant’s denial of the case, namely the denial that the review was improper or unlawful, does not adequately give the reader of the statement an explanation as to the fact that there were solid reasons that lay behind the defendant’s denial. The solid reasons she characterised as being, firstly, the email policy which I have referred to, secondly, the necessity to review the contents of the email account in order to comply with the disclosure obligations in the arbitration and, thirdly, the fact that the defendants applied filters in the process of e-disclosure which were intended, although they were not entirely successful, to remove from the search emails between the claimant and her husband, and legally privileged material.

She also objected to the fact that the statement that the claimant discovered that hundreds of personal emails were reviewed and read was not actually justified by the evidence. The evidence was that hundreds of emails had been accessed, but there was no agreement between the parties as to whether the emails were in fact read. She objected to the word ‘however’ because she said that rather suggested that the discovery of the hundreds of personal emails indicated that the suggestion that the defendant had put forward that the reviews were neither improper nor unlawful was one which could be seen to be exploded by the facts.

I understand entirely that somebody reading or hearing this paragraph without knowing more about the case might conclude that the defendant’s defence was a weak defence, but I do not see it as the purpose of the statement in open court, which, as I have said more than once, is the claimant’s statement rather than a balanced statement by the court, is one which can be expected to explain in any detail the grounds on which the defendant would have defended the action had the action gone forward. The purpose of the statement is to enable the claimant to indicate her perception of the action and of the settlement.

Miss Skinner also referred in this paragraph to a sentence which reads:

“These included personal and private communications with her husband and her legal advisors, contrary to assurances previously given to her by the defendant.”

There is then a reference to the assurances in the form of the quotation from Proudman J’s judgment. She said that that was unfair because it suggested that the assurances which had been given had been false and the suggestion, therefore, would be that assurances should never have been given.

This is something which Mrs. Webb, as I am aware, feels very strongly about and it is the case that certain assurances were given in correspondence which indicated that her personal emails with her husband and privileged material had not been included in the review. It is not necessary for me to set out matters in detail; a letter of 27th November 2015 from Carter-Ruck sets out the various assurances which had been made by Lewis Silkin and it is only necessary to refer to one letter of 14th March 2014 where Lewis Silkin said both searches were conducted having first filtered out privileged communications and other material which the claimant had confirmed was irrelevant, namely communications with her husband, and those references were again made in the Defence.

It is now apparent that, as has been accepted, the filters failed in a very limited number of cases and, as I say, one email, the KL email, which contains a communication between Mrs. Webb and her husband, is one which did get through the filters for some unexplained reason and was selected by the reviewer at Lewis Silkin for Ms. Temperton to review and which Ms. Temperton, I think, accepts that she looked at for the purpose of deciding whether it should be disclosed. In those circumstances, it does not seem to me unfair for the claimant to say that emails had been reviewed which included personal and private communications with her husband and with legal advisors, contrary to assurances previously given to her by the defendant. The statement there does not, I think, accuse Lewis Silkin of having deliberately given false assurances, something which is very much in dispute and which I do not intend to review or form any view about; it is something that seems to me to be quite impossible, on an application like this, to determine.

In those circumstances, the main objections which are put forward by Lewis Silkin to the draft statement are not ones which I think should incline me to refuse to allow the claimant to make a statement. I have already said that I think it preferable if the name of the solicitor were changed to ‘S’.

There is one further change which I think the claimant would be well-advised to adopt, and that is in para.6, where she says that hundreds of personal emails were “reviewed and read.” I think that the evidence does not disclose whether they were read or not, although it does disclose that they were accessed. I do not see that that would cause any significant difference to the statement, but I think it would be preferable if that paragraph provided that hundreds of personal emails were ‘accessed’ rather than ‘reviewed and read.’ With those changes, I would be prepared to approve the statement which has been put forward by the claimant.