Factual and Procedural Background
The appellant, Company A, seeks an order requiring its former Chief Executive Officer (the Defendant) to provide access to emails relating to Company A's business affairs. These emails are stored on the Defendant's personal computer in England. Company A contends that it is entitled to inspect and copy these emails, which were sent or received by the Defendant acting on behalf of Company A during his tenure as CEO.
Company A was incorporated in the Netherlands and based in Rotterdam. The Defendant's services were supplied through a company he controlled, with contractual relations governed by Dutch law and subject to exclusive Dutch jurisdiction. No direct employment contract existed between Company A and the Defendant.
Following termination of the Defendant's appointment after a takeover by another entity, Company A sought to retrieve electronic business correspondence stored on the Defendant's personal computer. The computer is held by the Defendant's solicitors under a court undertaking. Company A applied for an order for inspection of the emails, initially by an independent IT expert, and subsequently for copies of the emails.
The lower court framed a preliminary issue focusing on whether Company A had an enforceable proprietary claim to the content of the emails held by the Defendant. The judge answered this question negatively, holding that the content of the emails constituted "information," which is not recognized by law as property. Consequently, the action was dismissed, and Company A appealed this decision.
Parallel civil proceedings concerning alleged mismanagement and restrictive covenants are ongoing in the Dutch courts, but the present action is confined to the proprietary claim regarding the content of emails stored in England.
Legal Issues Presented
- Whether the appellant company has an enforceable proprietary claim to the content of emails held by its former Chief Executive Officer, which were sent or received by him on behalf of the company.
- Whether the principal (Company A) is entitled, as an incident of the agency relationship, to inspect and copy electronic correspondence held by its former agent (the Defendant) after termination of that relationship.
- Whether the content of emails constitutes property capable of proprietary rights enforceable against the agent.
Arguments of the Parties
Appellant's Arguments
- Company A asserted a proprietary right to the content of emails created or received by the Defendant acting as its agent, which survives termination of the agency relationship.
- It argued that the principal is entitled to inspect and copy business correspondence held by the agent, whether in hard copy or electronic form.
- The format or storage medium (electronic vs. paper) is irrelevant to the substantive right to access the content of documents relating to the principal’s affairs.
- Company A denied that the claim was based on wrongful conduct or breach of contract; rather, it was a claim to enforce rights incidental to the agency relationship.
- The claim to a proprietary right to the content was maintained consistently, and the supplemental skeleton argument was an update, not a change of legal basis.
- The principal’s right to inspect and copy electronic documents is analogous to the right to inspect and copy physical documents, supported by established agency principles and case law.
- It would be absurd if the principal could inspect printed emails but not emails stored electronically that the agent declines to print or display.
Defendant's Arguments
- The Defendant accepted that the emails were legitimately sent and received for work purposes and preserved accordingly.
- The core objection was that the claim was misconceived as it was based on a proprietary claim to information, which is not recognized as property under English law.
- The claim was not for core agency documents such as accounting records but for the content of individual correspondence items, which do not constitute property.
- Following rejection of the proprietary claim, Company A attempted to rely on agency duties, but this was not the basis of the claim before the court.
- The proprietary claim was described as far-reaching and an unwarranted extension of the law.
- The jurisdiction of the English courts to decide the claim to inspect emails stored in England was accepted, but the claim lacked legal foundation.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Lamb v. Evans [1893] 1 Ch 280 |
Employer/principal entitled to property in physical materials obtained by agent or employee; use against employer prohibited. |
Analyzed as concerning ownership of physical materials; did not support proprietary claim to intangible information content of emails. |
| Universal Thermosensors Ltd v. Hibben [1992] 1 WLR 840 |
Retention of documents after employment ended; ownership of physical documents. |
Considered inapplicable to intangible content; focused on physical document ownership. |
| Boardman v. Phipps [1967] 2 AC 46 |
Majority opinions rejecting property in information as such. |
Supported conclusion that information content is not property capable of proprietary claims. |
| Lady Beresford v. Driver (1851) 51 ER 335; (1852) 51 ER 728 |
Former agent ordered to deliver up documents relating to principal's estate. |
Illustrated principal's right to delivery up of documents held by agent. |
| Re Ellis & Ellis (1908) 25 TLR 38 |
Former solicitors ordered to deliver up payment vouchers to trustee in bankruptcy. |
Supported principle of document delivery up to principal or client. |
| Chantrey Martin v. Martin [1953] 2 QB 286 |
Professional working papers belong to agent; letters and papers created for client belong to client. |
Distinguished between agent’s working papers and documents belonging to principal. |
| Gomba Holdings UK Ltd v. Minories Finance Ltd [1988] 1 WLR 1231 |
All documents prepared or received by agent belong to principal and must be delivered up after agency ends. |
Reinforced principal’s entitlement to documents held by agent. |
| Equitas Ltd v. Horace Holman & Co Ltd [2007] EWHC 903 (Comm) |
Principal entitled to delivery up of original documents relating to transactions done as agent. |
Supported principal’s right to delivery up of documents retained by agent. |
| Yasuda Fire and Marine Insurance Co of Europe Ltd v. Orion Marine Insurance Underwriting Agency Ltd [1995] QB 174 |
Recognition of principal’s right to inspect and copy computerized and hard copy records of former agents. |
Supported principal’s right to inspect electronic records as incident of agency. |
| Pennwell Publishing (UK) Ltd v. Ornstien [2007] EWHC 1570 (QB) |
Related to inspection and copying rights of principals over electronic documents. |
Reinforced principle that electronic documents are subject to agency incidents. |
Court's Reasoning and Analysis
The court identified that the preliminary issue as framed introduced unnecessary complexity by focusing on a "proprietary right" to the content of emails. The court emphasized that the central issue was the legal incidents of the agency relationship between Company A and the Defendant, which survive termination.
The court recognized that while the content of emails constitutes "information," which is generally not recognized as property enforceable against the world, this did not preclude Company A from having enforceable rights against the Defendant arising from the agency relationship.
The court noted that established legal principles entitle a principal to require an agent to produce or deliver up documents relating to the principal's affairs. The definition of "documents" under the Civil Procedure Rules includes electronic documents such as emails, whether displayed on a screen or printed out.
The form or medium of storage does not diminish the principal's substantive right to access and copy documents. The court found that the judge below erred in concluding that the absence of a proprietary right to the content of emails precluded Company A's entitlement to inspection and copying.
The court declined to engage in a broad jurisprudential debate on whether information can constitute property, noting that such a debate was unnecessary to decide the case. Instead, it focused on the enforcement of rights between the parties based on the agency relationship.
Accordingly, the court held that Company A was entitled to an order permitting inspection and copying of the relevant emails held by the Defendant.
Holding and Implications
The appeal is allowed.
The court reversed the lower court's refusal to grant Company A access to inspect and copy emails relating to its business affairs held on the Defendant's personal computer. The decision clarifies that, notwithstanding the absence of a proprietary right in the content of information, a principal retains enforceable rights against a former agent to produce and deliver up documents (including electronic communications) relating to the principal's affairs, as an incident of the agency relationship.
This ruling underscores that the medium of storage—electronic or paper—does not affect the principal's legal rights to access business correspondence held by the agent. The decision does not establish new precedent on the nature of property in information but emphasizes practical enforcement of agency rights between the parties.
Counsel were directed to draft an agreed order in light of the judgment, with fallback provisions for submissions if agreement could not be reached.