Fairstar Heavy Transport NV v Adkins & Anor

The case on which Mr Susman primarily relied was the decision of the Court of Appeal in Lamb v Evans [1893] 1 Ch 280. The plaintiff was the printer and publisher of a multi-lingual European trade directory. He engaged the defendants as commission agents to solicit businessmen to pay for their business to be listed in the directory. The businessmen could, if they wished, supply wood blocks or other materials from which illustrations could be printed in the directory. The defendants left to work for a rival publication, intending to use the wood blocks and other materials still in their possession to get illustrations printed in the rival publication. There was nothing in their contract which expressly prevented them from doing so. The Court of Appeal unanimously upheld the injunction restraining them from doing so, and from other activities which would also have constituted a breach of good faith.

Lindley LJ said, at page 226:

“That suggests this question - which has nothing to do with copyright - What right has any agent to use materials obtained by him in the course of his employment and for his employer against the interest of that employer? I am not aware that he has any such right. Such a use is contrary to the relation which exists between principal and agent. It is contrary to the good faith of the employment, and good faith underlies the whole of an agent's obligations to his principal. No case, unless it be the one which I will notice presently, can I believe be found which is contrary to the general principle upon which this injunction is framed, viz, that an agent has no right to employ as against his principal materials which that agent has obtained only for his principal and in the course of his agency. They are the property of the principal. The principal has, in my judgment, such an interest in them as entitles him to restrain the agent from the use of them except for the purpose for which they were got.”

Bowen LJ agreed, saying, at page 229:

“Then we come to the second part of the case. Has not the Plaintiff a right to restrain the Defendants from using such blocks and materials or copies as they obtain while they were in the employment of the Plaintiff and for the purposes of their service and work which they had to do, that is to say, which they obtained for the purpose of doing their duty to the Plaintiff? Ought not the Plaintiff be able to restrain them from afterwards using those materials and of those documents in competition with the Plaintiff himself? It is not a question of copyright - that must be kept out of sight altogether - nor is it, on the other hand, a simple question of the absolute property at law in the documents themselves or in the blocks themselves. It is a question of whether the Plaintiff, whatever the property in the documents may be, or whatever the property in the materials may be, has not sufficient special property in them to entitle him to restrain the use of them against him when they had been obtained for his use by his agents in the course of their employment. That depends entirely, I think, upon the terms upon which the employment was constituted through which the fiduciary relation of principal and agent came into existence. I think my Brothers have already during the course of the argument expressed what I fully believe, that there is no distinction between law and equity as regards the law of principal and agent. The common law, it is true, treats the matter from the point of view of an implied contract, and assumes that there is a promise to do that which is part of the bargain, or which can be fairly implied as part of the good faith which is necessary to make the bargain effectual. What is an implied contract or an implied promise in law? It is that promise which the law implies and authorises us to infer in order to give the transaction that effect to the parties must have intended it to have and without which it would be futile.”

Kay LJ, who also agreed, said that he assumed that the agents would have had notebooks in which they would note down all the information collected from the people they canvassed. He then said:

“The argument was put most forcibly as I followed it in this form: Why should they not retain these notebooks in their hands, having now left the Plaintiff's employer, and use them in order to find out the persons abroad with whom they had formally entered into engagements, and to obtain from those advertisers authority to put advertisements of theirs into a rival publication to be published as a rival of the Plaintiff's book? The answer is a very simple one. All those materials were obtained awhile you, the Defendants, were acting as the Plaintiff's agents, while you were in that confidential relation to him and for the purpose for which he employed and paid you, viz, of compiling this book of the Plaintiffs, and therefore to allow you to use any of those materials for your own purposes would be allowing you to use them for a purpose for which they were not compiled - you, while you compiled them, being in the position of the Plaintiff's agent, and there being a confidential relation between you and the Plaintiff. I turn to one of the leading cases on the subject, and I take the language of Lord Justice Turner in his judgment in Morison v Moat: "That the Court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been assigned for the exercise of that jurisdiction. In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence - meaning, as I conceive, that the Court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds that jurisdiction is founded, the authorities leave no doubt as to the exercise of it."

. . . The jurisdiction against these Defendants is because these materials which they want to use were obtained by them when they were in the position of agents for the Plaintiff, and, although the Plaintiff might not be able to prevent anybody else in the world from publishing or using such materials as he is trying to prevent these Defendants from using, that would be no answer, because these Defendants, from the position in which they were in, are put under a duty towards the Plaintiff not to make this use of the materials.”

Whilst Lindley LJ may have based his decision on the ground that the materials were the property of the claimant, I consider that Bowen LJ took a different view. He appears to have approached the question by considering, whatever the property in the materials may have been, whether the claimant had a sufficient interest in those materials to entitle him to restrain the use of them by the defendants to his detriment. I think that Mr Susman was inclined to accept that Bowen LJ's reference to "sufficient special property" was not a reference to a property right, so called, but to the existence of some form of interest in the relevant materials sufficient to found a claim for the relief sought.

Similarly, I consider that Kay LJ also did not found his decision on the ground that the employer had a proprietary right in the relevant materials. Indeed, during argument he made the observation that the principle in play was the fact that the employee was doing something inconsistent with the duties of his employment. He was in no doubt that the jurisdiction to restrain the defendants from making use of the materials to the detriment of their employer undoubtedly existed, even if there was room for argument about the precise basis of that jurisdiction.

To the extent that Mr Susman was relying on this case as authority for the proposition that any materials created by or coming into the possession of an employee during the course of his employment must necessarily belong to the employer, I consider that the decision does not go that far. In any event, and as one might expect from a case decided in 1892, it does not assist on the question of whether or not the contents of e-mails that are held on a server in the possession of the defendant (as opposed to the server itself) can be regarded as property or "materials".

Mr Susman then relied on Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840, a decision of Sir Donald Nicholls V-C, and Pattihis v Jackson [2002] EWHC 2480, a decision of Nelson J. The first involved the theft by employees of the employer's customer lists and the second involved the un-authorised taking of client files from a firm of solicitors by a former employee. In each case what was taken was clearly physical property which belonged to the employer. I derive no assistance from either of these cases.

The only case which really provided any support for Mr Susman's submissions was a decision of Mr Justin Fenwick QC, sitting as a Deputy Judge of the Queen's Bench Division, in Pennwell Publishing v Ornstien [2007] EWHC 1570. In that case a former employee had copied contact information from the employer’s Microsoft Outlook into an Excel spreadsheet. It was not disputed that during the course of his employment the employee had himself added many names and addresses to the list. Apart from this, it is not necessary to say anything more about the facts: it is the judge's conclusion on which Mr Susman relies. Mr Justin Fenwick QC said this:

It appears from the judgment that it was not disputed that an address list stored on a computer was property. The question was: whose property was it? There were three options: (a) that it belonged to the employer to the exclusion of the employee; (b) that it belonged to the employee to the exclusion of the employer (although the employee did not seek to prevent the employer from using the list in common with him); and (c) that it was jointly owned and could be used by both. It is not clear to me whether any distinction was being drawn between the database in the form of the electronic material on the drive that held the data, and the information itself taken apart from the medium. I rather doubt it. Be that as it may, the arguments that have been addressed to me were not made to Mr Fenwick, and so in those circumstances the conclusion that he reached was perhaps unsurprising (even assuming that it was a conclusion about the pure information rather than the electronic material on the server’s drive). It is also worth noting that the contract between the claimant and the defendants contained a definition of company property that extended to "software provided for your use by the company". However, I think that Mr Susman may be correct in his submission that the conclusion at paragraphs 127-8 was expressed in general terms and was not limited to property as defined in the contract.

In any event, I am not prepared to assume that Mr Fenwick would have reached the same conclusion if the arguments that have been addressed to me had been addressed to him. For this reason I feel unable to place any reliance on this decision. In saying this I intend no disrespect to Mr Fenwick.

Mr Susman also relied on a decision of HH Judge Richard Seymour QC in WRN Limited v Ayris [2008] EWHC 1080. One of the issues in that case was whether or not business cards that had been given to the employee in the course of his employment, as well as cards that were already in his possession and which he brought with him at the start of his employment, were the property of the employer. The judge held that the cards, including those in the latter category, were the property of the employer. He found that the employee had effectively given the cards that he had brought with him to the employer by using them for the purpose of carrying out his work. Mr Susman submitted that no relevant distinction can be made between a collection of business cards amassed on behalf of a company and a collection of e-mails received and sent on behalf of a company. But that submission begs the question. Judge Seymour’s decision does not assist in determining whether or not the content of an e-mail is to be regarded as property.

Finally, Mr Susman referred me to Huddleston v Control Risks [1987] 1 WLR 702, a decision of Hoffmann J (as he then was). The claimants were members of the Anti-Apartheid movement. The defendant, a political risks consultancy, was about to produce a report, which would be available for purchase for a fee, on the activities of anti-apartheid groups in Europe, their relationship with terrorist groups and their intentions. The claimants were concerned that the report might contain material that was defamatory of them and they wish to see it before it was released. They applied for an order requiring the Defendant to permit them to inspect the report under section 33(1) of the Supreme Court Act 1981. That section conferred on the High Court, subject to the rules of court, a power to make an order providing for "the inspection, photographing, preservation, custody and detention of property which appears to the court to be property which may become the subject matter of subsequent proceedings in the High Court, or as to which any question may arise in any such proceedings".

Section 33(2) of the Act conferred a power to order the discovery of documents before the commencement of proceedings, but only in claims for personal injury or in relation to the death of any person. The claimants did not seek disclosure under this provision because their prospective claim did not fall within it. Accordingly, the claimant sought to inspect the document as "property" within section 33(1). Hoffmann J said this, at 703:

“It seems to me that a written instrument or any other object carrying information such as a photograph, tape-recording or computer disc, can be both "property" for the purposes of section 33(1) of the Act and a "document" for the purposes of section 33(2). Whether for the purposes of a particular case it is the one or the other depends on the nature of the question which it is said may arise. In my judgment Parliament intended, whatever Marshal McLuhan might have said, to distinguish between the medium and the message. If the question will be concerned with the medium, the actual physical object which carries the information, the application is to inspect "property" within section 33(1). If the question will be concerned with the message, the information which the object conveys, the application is for discovery and can be granted before writ only in the limited classes of proceedings to which section 33(2) applies. Thus in Re Saxton, dec’d, there was no question in issue about the message. The meaning of the writing was perfectly clear. The question was whether the medium, the characters written on a particular piece of paper, had been put there by the person purporting to have done so.

In this case the issue in any prospective libel action will be whether the defendants have published words defamatory of the plaintiffs. The plaintiffs are not concerned with the medium by which this is done; whether it is on A4 or foolscap, printed or typewritten, Roman or italics. What matters to them is the message. It follows that in my judgment this is not an application for inspection of property but an application for discovery which I have no power to entertain.”

If anything, it seems to me that this case appears to be against Mr Susman, which is no doubt why, very properly, he referred me to it. He submitted that the distinction made in that case, which he said was in a statutory pre-action context, has no relevance when an action has already been brought to recover e-mails on the ground that the claimant has a proprietary interest in their content. I disagree; there is or may be an important distinction between the physical object which carries the information - for example, a letter - and the information which that object conveys. A letter, which consists of paper together with the ink of the writing which is on it, is clearly a physical object that can be owned. However, it does not follow from this that the information which the letter conveys is also property that is capable of being the subject of a proprietary claim (for this purpose I leave aside the possibility of any claim arising out of copyright in respect of the contents of the letter).

As I have already indicated, Mr Spearman's principal submission was, in essence, very simple. He submitted that the preponderance of authority, and at the highest level, is to the effect that information is not property. Perhaps the clearest statement of this is that of Lord Upjohn in Boardman v Phipps [1967] 2 AC 46, at 127, who said:

“In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, "know-how," confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense but equity will restrain its transmission to another if in breach of some confidential relationship.

With all respect to the views of Russell LJ I protest at the idea that information acquired by trustees in the course of their duties as such is necessarily part of the assets of the trust which cannot be used by the trustees except for benefit of the trust. Russell LJ referred to the fact that two out of three of the trustees could have no authority to turn over this aspect of trust property to the appellants except for the benefit of the trust; this I do not understand, for if such information is trust property not all the trustees acting together could do it for they cannot give away trust property.”

Perhaps rather less emphatically, Viscount Dilhorne said this, at 89:

“While it may be that some information and knowledge can properly be regarded as property, I do not think that the information supplied by Lester & Harris and obtained by Mr. Boardman as to the affairs of that company is to be regarded as property of the trust in the same way as shares held by the trust were its property. Nor do I think that saying that they represented the trust without authority amounted to use of the trust holding.”

Lord Cohen said, at 102:

“This is an attractive argument, but it does not seem to me to give due weight to the fact that the appellants obtained both the information which satisfied them that the purchase of the shares would be a good investment and the opportunity of acquiring them as a result of acting for certain purposes on behalf of the trustees. Information is, of course, not property in the strict sense of that word and, as I have already stated, it does not necessarily follow that because an agent acquired information and opportunity while acting in a fiduciary capacity he is accountable to his principals for any profit that comes his way as the result of the use he makes of that information and opportunity. His liability to account must depend on the facts of the case . . .

That is enough to dispose of the case but I would add that an agent is, in my opinion, liable to account for profits he makes out of trust property if there is a possibility of conflict between his interest and his duty to his principal. Mr. Boardman and Tom Phipps were not general agents of the trustees but they were their agents for certain limited purposes. The information they had obtained and the opportunity to purchase the 21,986 shares afforded them by their relations with the directors of the company - an opportunity they got as the result of their introduction to the directors by Mr. Fox - were not property in the strict sense but that information and that opportunity they owed to their representing themselves as agents for the holders of the 8,000 shares held by the trustees. In these circumstances they could not, I think, use that information and that opportunity to purchase the shares for themselves if there was any possibility that the trustees might wish to acquire them for the trust.”

However, in his skeleton argument Mr Spearman very properly pointed out two passages in the other speeches that point the other way (on which, understandably, Mr Susman relied). At 107, Lord Hodson said:

“As to this it is said on behalf of the appellants that information as such is not necessarily property and it is only trust property which is relevant. I agree, but it is nothing to the point to say that in these times corporate trustees, e.g., the Public Trustee and others, necessarily acquire a mass of information in their capacity of trustees for a particular trust and cannot be held liable to account if knowledge so acquired enables them to operate to their own advantage, or to that of other trusts. Each case must depend on its own facts and I dissent from the view that information is of its nature something which is not properly to be described as property. We are aware that what is called "know-how" in the commercial sense is property which may be very valuable as an asset. I agree with the learned judge and with the Court of Appeal that the confidential information acquired in this case which was capable of being and was turned to account can be properly regarded as the property of the trust. It was obtained by Mr. Boardman by reason of the opportunity which he was given as solicitor acting for the trustees in the negotiations with the chairman of the company, as the correspondence demonstrates. The end result was that out of the special position in which they were standing in the course of the negotiations the appellants got the opportunity to make a profit and the knowledge that it was there to be made.”

Finally, and in perhaps rather stronger terms, Lord Guest said, at 115:

“Boardman would never have been able to obtain all the information which was obtained in phase 2 unless he had been acting for the trustees. This information enabled him to put forward the offer of £4 10s. per share which was fully acceptable to Smith. I take the view that from first to last Boardman was acting in a fiduciary capacity to the trustees. This fiduciary capacity arose in phase 1 and continued into phase 2, which glided into phase 3. In saying this I do not for one moment suggest that there was anything dishonest or underhand in what Boardman did. He has obtained a clean certificate below and I do not wish to sully it. But the law has a strict regard for principle in ensuring that a person in a fiduciary capacity is not allowed to benefit from any transactions into which he has entered with trust property. If Boardman was acting on behalf of the trust, then all the information he obtained in phase 2 became trust property. The weapon which he used to obtain this information was the trust holding. And I see no reason why information and knowledge cannot be trust property."

The appeal was dismissed by a majority, Lords Dilhorne and Upjohn dissenting. In relation to what was decided, paragraph (1) of the headnote reads as follows:

“. . . the appellants had placed themselves in a special position, which was of a fiduciary character, in relation to the negotiations with the directors of the company relating to the trust shares. That out of such special position and in the course of such negotiations the appellants obtained the opportunity to make a profit out of the shares and knowledge that the profit was there to be made. A profit was made and they will accountable accordingly."

The question of whether the information that came available to the appellants was or was not to be regarded as trust property was not decided, so it seems to me that none of the references to the status of information in the passages that I have quoted above forms part of the ratio of the decision. Nevertheless, the majority of their Lordships were clearly of the view that information was not property.

In Nicrotherm Electrical Company v Percy [1957] RPC 207, referred to in the Force India case referred to below but not specifically cited to me, Lord Evershed MR (with whom Hodson and Romer LJJ agreed) said, at 209:

“. . . a man who thinks of a mechanical conception and then communicates it to others for the purpose of their working out means of carrying it into effect does not, because the idea was his (assuming that was), get proprietary rights equivalent to those of a patentee. Apart from such rights as may flow from the fact, for example, of the idea being of a secret process communicated in confidence or from some contract of partnership or agency or the like which he may enter into with his collaborator, the originator of the idea gets no proprietary rights out of the mere circumstance that he first thought of it."

In Fraser v Evans [1969] 1 QB 349, another case referred to in the Force India case cited below and again not specifically cited to me, Lord Denning MR said, at 361:

“Those cases show that the court will in a proper case restrain the publication of confidential information. The jurisdiction is based not so much on property or on contract as on the duty to be of good faith. No person is permitted to divulge to the world information which he has received in confidence, unless he has just cause or excuse for doing so.”

By way of an aside, in the high Court of Australia it has been held that the equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information does not lie in proprietary right, but in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained: see Moorgate Tobacco Ltd v Philip Morris Ltd [1985] RPC 219, at 234, per Deane J, with whom the other members of the court agreed. There is also an interesting discussion on the question of whether or not for some purposes confidential information can be property by Binnie J, giving in the judgment of the court in the Supreme Court of Canada in Cadbury Schweppes Inc v FBI Foods Ltd [2000] FSR 491, at [39]-[48]. (Footnote: ²) In the concluding paragraph, after referring to an article in which the authors suggested that confidential information could be property, he said:

“I agree, of course, with the author's emphasis on confidentiality. Breach of confidentiality is the gravamen of the complaint. When it comes to a remedy, however, I do not think a proprietary remedy should automatically follow. There are cases (as in Lac Minerals) where it is appropriate. But equity with its emphasis on flexibility, keeps its options open. It would be contrary to the authorities in this Court already mentioned to allow the choice of remedy to be driven by a label ("property") rather than a case-by-case balancing of the equities. In some cases, as Lord Denning showed in Seager v Copydex Ltd (No. 2), above, the relevance of the specific quality of the information to a remedy will not be its property status but its commercial value. In other cases, as in Lac Minerals, the key to the remedy will not be the "property" status of the confidence but the course of events that would likely have occurred "but for" the breach. Application of the label "property" in this context would add nothing except confusion to the task of weighing the policy objectives furthered by a particular remedy and particular facts of each case. In the present case, the trial judge considered the confidential information to be nothing very special, and that "but for" the breach the respondents would in any event have faced a merchantable version of Caesar Cocktail in the marketplace within 12 months. On these facts, a "proprietary" remedy is inappropriate.”

In Douglas v Hello! Ltd (one of three appeals reported under the name of the first case, OBG Ltd v Allan) [2008] 1 AC 1, the litigation which arose out of the celebrated wedding of Michael Douglas and Catherine Zeta-Jones, Lord Walker of Gestingthorpe dealt with the question in fairly clear terms, at page 76:

In Coogan v News Group Newspapers Ltd [2012] EWCA Civ 48, referred to in the Force India case cited below, Lord Neuberger of Abbotsbury MR said, at [39]:

“In my view, the upshot of this summary of the position as discussed in the cases and the books is that, while the prevailing current view is that confidential information is not strictly property, it is not inappropriate to include it as an aspect of intellectual property. Accordingly, unless there is binding authority to the contrary, I am of the view that, given the normal meaning of 'commercial information', the draftsman of section 72 intended confidential information of a commercial nature to be included in the definition of 'intellectual property'.” (Footnote: ³)

In Force India Formula One Team v 1 Malaysian Racing Team [2012] EWHC 616 (Ch) Arnold J, a judge with particular experience of this field, said this, at [376]:

“Confidential information is not property, however, even though businessmen often deal with confidential information as if it were property and judges often use the language of property when discussing breach of confidence: see Jefferys v Boosey (1854) 4 HLC 814 at 966 (Lord Brougham); E.I. Du Pont de Nemours Powder Co v Masland (1917) 244 US 100 at 102 (Holmes J, US Supreme Court); Federal Commissioner of Taxation v United Aircraft Corp (1943-44) 68 CLR 525 at 534 (Latham CJ, High Court of Australia); Nicrotherm Electrical Co Ltd v Percy [1957] RPC 207 at 209 (Lord Evershed MR, with whom Hodson and Romer LJJ agreed); Boardman v Phipps [1967] 2 AC 46 at 89G-90A (Viscount Dilhorne), 102G (Lord Cohen) and 127F-128A (Lord Upjohn); Fraser v Evans [1969] 1 QB 349 at 361 (Lord Denning MR); Moorgate Tobacco Co Ltd v Philip Morris Ltd [1985] RPC 219 at 234 (Deane J, with whom the other members of the High Court of Australia agreed); Cadbury Schweppes Inc v FBI Foods Ltd [2000] FSR 691 at [39]-[48] (Binnie J delivering the judgment of the Supreme Court of Canada); Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595, [2006] QB 125 at [126]-[127] (Lord Phillips of Worth Matravers MR delivering the judgment of the Court of Appeal) and [2007] UKHL 21, [2008] 1 AC 1 at [276] (Lord Walker of Gestingthorpe); and Coogan v News Group Newspapers Ltd [2012] EWCA Civ 48 at [39] (Lord Neuberger of Abbotsbury MR, with whom Lord Judge CJ and Maurice Kay LJ agreed). (It may be noted that Rix LJ's statement in Veolia ES Nottinghamshire Ltd v Nottinghamshire County Council [20101] EWCA Civ 1214, [2011] Env LR 12 at [111] that "confidential information is a well recognised species of property" was made without reference to any of these authorities, although Coogan v News Group was of course decided later.) It follows that the user principle is not directly applicable to claims for breach of confidence. Although proprietary remedies have sometimes been granted in breach of confidence cases, these have been based not purely upon breach of confidence, but upon breach of a fiduciary duty, as for example in Boardman v Phipps.”

Arnold J's conclusion is supported by the authors of Gurry on Breach of Confidence, 2^nd Edn, in which the authors say, at paragraph 4.101:

“It is submitted that none of the arguments discussed above support ‘property’ as the jurisdictional basis of the law of confidentiality. Moreover, there is a wealth of dicta denying the existence of a proprietary right in confidential information and confining rights in such information to circumstances in which there was a breach of confidence in contract or equity.”

In my judgment it is clear that the preponderance of authority points strongly against there being any proprietary right in the content of information, and this must apply to the content of an e-mail, although I would not go so far as to say that this is now settled law. Some of the observations that I have quoted are in terms that are less than emphatic and, of course, the two contrary views in Boardman v Phipps are entitled to significant weight. However, I accept Mr Spearman’s submission that Mr Susman’s case is not supported by any authority binding on me.

Nevertheless, Mr Susman submitted very forcefully that logic and the circumstances of the modern world should encourage the court to hold that the content of an e-mail was a form of property. In effect he submitted that it would be unrealistic for the courts not to recognise the proprietary right of an employer or principal in electronic materials that were created by or came into the possession of his employee or agent in the course of his employment or agency.

Beguiling as this submission is, it is perhaps worth considering how Mr Susman's case might operate in practice, bearing in mind that we are not concerned with the medium but only with the message.

Assuming, for the purposes of this part of the exercise, that the content of an e-mail is capable in law of being property, then it seems to me that there are five possible options in relation to the ownership of the content of any particular e-mail. They are:

However, one difficulty with the argument advanced by Mr Susman is that he is asserting that both options (1) and (2) and, by extension, options (3) and (4) also, apply at the same time. This is because he is submitting that Fairstar has title to both messages sent and messages received. As he put it in paragraph 8.1 of his skeleton argument:

“Fairstar seeks no more than access for itself to copies of e-mails received or sent by Philip Adkins on behalf of Fairstar and currently stored in England. Fairstar's cause of action is a proprietary interest in the content of those e-mails. Philip Adkins’ challenge raises the question of whether under English law Fairstar has such a proprietary interest in the content of the e-mails."

He made it quite clear that this challenge did not raise any other issue, that no question arose in relation to copyright and that Fairstar was not relying upon any obligation of confidence. In addition, he accepted that Fairstar could not rely on any express or implied term of its contract with Cadenza for the provision of the services of Mr Adkins.

Even though Mr Susman does not seek to rely on option (1) only but not option (2), or vice versa, I should perhaps consider them. The implication of adopting option (1) is that in principle the creator of an e-mail would be able to assert his title to its contents against all the world. If that were so, one has to ask what it would involve in practice. It would be very strange - and far reaching - if the creator of an e-mail could require any recipient of it, however far down the chain, to delete it (this would have to be the remedy because the content of an e-mail is not something that one can simply return). But if he cannot do this, what is the use of having this proprietary right?

However, some support for option (1) can be found in the standard rubric that appears at the foot of many e-mails sent within government departments. (Footnote: ⁴) This reads as follows:

The implication of adopting option (2) is that the creator of the e-mail would cease to have any right in its contents from the moment he sent it. It would seem to follow from this that the recipient would be entitled to ask the sender (in this case the creator) of the e-mail to delete it. Logically, the same would apply down the line so that the only person entitled to the contents of a particular e-mail would be the last recipient. However, if the initial e-mail was sent to several recipients, some of whom forwarded it to others, the question of who had the title in its contents at any one time would become hopelessly confused.

In my judgment, one only has to consider the difficulties that could arise if one adopts either option (1) or option (2), in order to rule them both out as being quite impractical and unrealistic. This leaves options (3) and (4). However, it seems to me that these two options, which would seem perfectly workable, would have the result that the proprietary interest in the content of any e-mail would in reality be deprived of any value. In practice, the right to control another’s use of the content of an e-mail would depend on the extent to which that other person was or was not making a legitimate use of it. This would amount to applying much the same test as that which applies under the existing equitable jurisdiction (or contractual right if it exists) to restrain the misuse of confidential information. The only difference, I suppose, is that it would not be necessary to show that the information (ie. the content of the e-mail) was confidential in order to exercise a proprietary right of control. However, if the information was not confidential, then the situations would be few in which a person would need or want to restrain another's use of it. In my judgment, there is no compelling need or logic for adopting either of options (3) or (4) and so in relation to these options I would reject a plea that the law is out of line with the state of technology in the 21^st century.

This leaves option (5) above as the only one that is consistent with the claim that Fairstar is advancing. However, this also seems to me to be unrealistic. It could have all sorts of repercussions. For example, suppose that a supplier of components loses his database of e-mails when his server unexpectedly crashes. If he had a proprietary right in the content of all e-mails sent to and received by him from each of his customers, would he have the right to demand access to the copies of those e-mails on those customers’ servers in order to enable him to reconstitute his database? In a different situation would parties who had formerly communicated with each other on a regular basis by e-mail but had since fallen out have the right to demand access to each other's servers in order to see to whom e-mails that they had sent had been forwarded? If the answer to questions such as these is No, then I have difficulty in seeing what advantage there might be if it were to be held that there was a shared proprietary right in the content of e-mails: it would be of little or no value. But if the answer was Yes, the ramifications would be considerable and, I would have thought, by no means beneficial.

For all these reasons I can find no practical basis for holding that there should be property in the content of an e-mail, even if I thought that it was otherwise open to me to do so. To the extent that people require protection against the misuse of information contained in e-mails, in my judgment satisfactory protection is provided under English law either by the equitable jurisdiction to which I have referred in relation to confidential information (or by contract, where there is one) or, where applicable, the law of copyright. There are no compelling practical reasons that support the existence of a proprietary right - indeed, practical considerations militate against it.

Accordingly, I determine the agreed issue against Fairstar. It must follow from this that Fairstar's application to inspect the e-mails held by Mr Adkins cannot succeed on the ground on which it is presently based.

I have to say that this is not a result that I view with any enthusiasm in the circumstances of this particular case. Although Fairstar has put forward compelling reasons in support of its application to inspect the e-mails, its inability to deploy other grounds for relief that would usually be available under English law has had the consequence that the application had to fail. For the avoidance of any doubt, I express no view as to whether or not there is any other ground upon which the application could have been made in this jurisdiction.

If the liability for the costs of the previous applications that have been reserved by Coulson and Eder JJ cannot be agreed, then I will hear the parties on a date that will have to be arranged through counsel’s clerks.