Not if you use them for work purposes.
In Phones 4U Ltd (in administration) v EE Ltd and other companies [2021] EWCA Civ 116 the English Court of Appeal upheld an order that required the defendants to request their senior employees and former employees, to give IT consultants access to their personal mobile phones for the purposes of litigation.
Background
The order was made in the context of a competition claim in which Phones 4U alleged that certain mobile network operators (the defendants) had entered an arrangement by which the defendants agreed to terminate each of their agreements with Phones 4U as an intermediary for the supply of connections to retail customers.
On appeal, the defendants argued, in summary, that the judge did not have jurisdiction to order a party to request third parties voluntarily to produce personal devices and personal emails stored on them. They further argued that it breached the third parties’ privacy rights.
The Court Rules
The English Civil Procedure Rules (CPR Part 31) that were considered in this case are summarised as follows. There are very similar provisions within the Isle of Man High Court Rules (Part 7 Chapter 5):
- Under a process called standard disclosure, parties to litigation are required to disclose documents on which they rely, documents which adversely affect their own case, documents which adversely affect another party’s case and documents which adversely support another party’s case.
- A party to whom a document has been disclosed has a right to inspect that document except where the “document is no longer in the control of the party who disclosed it.”
- A “document” is defined as “anything in which information of any description is recorded” which has been held to include emails and other electronic communications.
- The court can give directions at any point “as to how disclosure is given”.
- A party’s duty to disclose documents is limited to documents which are or have been in his control. A document is in a party’s control if (a) it is or was in his physical possession; (b) he has or has had a right to possession of it; or (c) he has or has had a right to inspect or take copies of it.
Common ground
It was common ground between the parties that: –
- Phones 4U was seeking to obtain disclosure of work-related emails and messages that were sent to or received by employees or former employees of the defendants on their personal devices;
- The emails and messages (if they existed) were to be regarded as being in the defendants’ “control” for the purposes of CPR 31.8;
- The personal devices themselves were not in the “control” of the defendants. This latter point was not decided by the Court of Appeal, it being noted that:
“…there may be a wide variety of situations ranging from a device owned by the [employee] but used mainly for work purposes on the one hand, to a device used almost exclusively for personal matters, save for an isolated work email perhaps sent in error from the wrong device. Thirdly, whilst the definition of “document”…is wide, it is not immediately obvious from those provisions that it is intended to include the device itself or the chip within it.”
Court of Appeal
In considering the first instance decision, the Court of Appeal stated that disclosure is a pragmatic process aimed at ensuring that, so far as possible, the relevant documents are before the court: –
“CPR Part 31 is expressly written in broad terms so as to allow the court maximum latitude to achieve this objective. It is not a straitjacket intended to create an obstacle course for parties seeking reasonable disclosure of relevant documents within the control of the other party.”
The defendants argued that it was only possible for Phones 4U to have obtained the documents by applying for an order for specific disclosure (CPR 31.12) or by applying directly against the employees and former employees as persons not party to the proceedings (CPR 31.17) or by applying for orders based on alleged contempt.
The Court of Appeal disagreed, noting the likely many costly applications, hearings and orders that would be involved if Phones 4U were required to apply under one of those provisions.
It held that the scheme of standard disclosure is simple and effective – a party must make a reasonable search for adverse documents which might include searching for documents on employees and former employees’ personal devices. CPR 31.5 allows the court to give directions at any point “as to how disclosure is to be given”. The Court of Appeal held that the judge’s order fell precisely within the terms of that provision. It explained what searches were to be undertaken and where they were to be undertaken (in the documents controlled by the defendants but in the hands of the employees and former employees); it said what was to be searched for, by whom the searches were to be made (IT consultants) and in respect of which time periods.
Whilst the employees and former employees as third parties to the litigation could not be compelled (without an order against non-parties under CPR 31.17) to do anything, that did not mean that the court could not require the parties to the proceedings to make requests of third parties by way of making a search for relevant documents.
Privacy
With regard to the employees’ and former employees’ privacy, the Court of Appeal was required to consider whether the judge exercised his discretion in relation to the management of disclosure in a way that was so plainly wrong that it was outside the generous ambit of discretion entrusted with a judge.
The Court of Appeal agreed with the judge that where companies engage in unlawful and collusive behaviour the individuals involved may sometimes deliberately avoid using their work email to conceal their dealings. It further remarked that whilst it accepted that the vast majority of the documents on the devices would be highly personal, it was the employees and former employees themselves that had chosen to use them for business purposes. Balancing all matters, the Court of Appeal found that the judge’s decision to involve the IT consultants to carry out the search (as opposed to the defendants themselves) was not a decision that could be said to be wrong, disproportionate or unreasonable. The judge had sought to avoid further satellite litigation by involving an independent third party.
Ultimately, the Court of Appeal considered that the judge’s decision had been pragmatic and sensible and was a practical application of his discretion under CPR 31.5(8).
Conclusion
This case is a reminder that both employers and employees should take care when considering the use of personal mobile phones for business purposes.
Aside from concerns relating to data protection and confidentiality, employers should consider the consequences if documentation held on employees’ personal devices is required for the purposes of proceedings that the employer may end up involved in.
From the employee’s perspective, they may be a recipient of a request from their employer for delivery up of a personal device or alternatively may end up being the respondent to a specific disclosure application resulting in a court order being issued against them requiring them to deliver up their personal device.
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The guidance in this note is for information purposes only and is not intended to be exhaustive. It is not intended to constitute legal or other professional advice, and should not be relied on or treated as a substitute for specific advice relevant to particular circumstances. Cains accepts no responsibility for any errors, omissions or misleading statements or for any loss which may arise from reliance on the information in this note.
