Gurieva & Anor v Community Safety Development (UK) Ltd, Court of Appeal - Queen's Bench Division, April 06, 2016, [2016] EWHC 643 (QB)

Resolution Date:April 06, 2016
Issuing Organization:Queen's Bench Division
Actores:Gurieva & Anor v Community Safety Development (UK) Ltd
 
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Neutral Citation Number: [2016] EWHC 643 (QB)

Case No: HQ15X04318

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/04/2016

Before :

MR JUSTICE WARBY

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Between :

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Robert Weekes (instructed by Brown Rudnick LLP) for the Claimants

Caroline Addy (instructed by Pannone Corporate LLP) for the Defendant

Hearing date: 21 March 2016

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Mr Justice Warby :

Introduction

  1. This is the trial of a claim by two individuals for a declaration that the defendant, a private investigator, has failed to comply with the subject access duties imposed by s 7 of the Data Protection Act 1998 (DPA), and for an order under s 7(9) of the DPA requiring the defendant to comply with those duties.

  2. The general scheme of the ``subject information'' regime established by the Data Protection Directive, 95/46/EC (the Directive) and implemented via Part II of the DPA is by now quite familiar.

    (1) An individual has the right, on making a written request and paying a fee, to be informed by a data controller whether the data controller is processing ``personal data of which the individual is the data subject'', sometimes referred to as the individual's personal data.

    (2) If the answer is yes, the individual is entitled to a description of the personal data, the purposes for which they are being or are to be processed, and those to whom they are or may be disclosed. The individual is also entitled to have communicated to him or her, in an intelligible form, the information in question and any information available to the data controller as to the source or sources of the information.

    (3) These rights are set out in s 7(1)-(3) of the DPA. They are qualified in a variety of ways. Some of the qualifications are to be found in ss 7, 8, 9 and 9A. One of them is that the court has a discretion over whether to order a data controller to comply: s 7(9).

    (4) But some personal data are altogether exempt from the individual's right of access under s 7. Section 29(1) of the DPA contains an exemption for personal data processed for the purposes of the prevention or detection of crime or the apprehension or prosecution of offenders (the crime exemption). Schedule 7 paragraph 10 exempts personal data covered by legal professional privilege (the privilege exemption).

  3. In this case a formal written subject access request (SAR) was made to the defendant by the claimants on 15 June 2015, by letter from their solicitors, Brown Rudnick. It is common ground that at that time the defendant was a data controller, and was processing personal data of each claimant. The defendant's evidence is that this is the consequence of an investigation, as a result of which it holds around 1,500 documents. There are three issues before me:-

    (1) Validity: whether the claimants have made a valid SAR; if so

    (2) Exemption: whether the personal data that were being processed at the time of the SAR are exempt from the access provisions by virtue of

    a) the crime exemption; and/or

    b) the privilege exemption; and if not

    (3) Discretion: whether the court's discretion should be exercised so as to require compliance by the defendant with the duties under s 7.

  4. The principal ground on which the defendant contends that, if I have a discretion, I should exercise it against the claimants is abuse of process. It is argued that the SAR, and this action, represent a misuse of the information rights conferred by the DPA. The claimants are said to be using the DPA as a device with the purpose of gaining an illegitimate procedural advantage in criminal proceedings which have been brought against the claimants in Cyprus by one of the defendant's clients. In connection with the privilege exemption, the defendant relies also on the scale of the data in question and the alleged difficulties of compliance. It would be disproportionate, submits the defendant, to require it to seek legal advice on the privilege exemptions in respect of each and every page it holds.

    The hearing

  5. The claim is brought under CPR Part 8, on the basis that it involves no substantial dispute of fact. In October 2015 the claimants served a statement from Neil Micklethwaite, a partner in Brown Rudnick. In November the defendant served a statement from Michael O'Keefe, a director of the company. The defendant has not suggested that the claim should proceed under Part 7 and, as is normal in a Part 8 claim, I have heard no oral evidence.

  6. The defendant applied at the outset of the hearing for an adjournment on the basis of late service of a second witness statement from Mr Micklethwaite, and the illness of Mr O'Keefe. I refused the application.

    (1) The late evidence was little more than an update on the status of the Cyprus proceedings. The defendant had put in responsive evidence from another director, Mr Ghaffur. Justice could be done without the need to allow the defendant time to investigate the issues further.

    (2) The witness's illness was of no consequence as he would not have given oral evidence in any event. His statement stood as his evidence in chief and the claimants did not wish to cross-examine him. He was not needed for the purpose of giving instructions.

  7. The defendant had warned that it might wish to cross-examine Mr Micklethwaite, but in the event Ms Addy chose not to do so. I must therefore resolve the issues on the basis of the written evidence, drawing or not drawing inferences as necessary where there are rival factual cases, as there are on the question of the claimants' purposes. It is mainly because of that dispute that it is necessary for me to record and reach some findings about the factual background to the SAR.

    The factual background

  8. This dispute is part of a larger one concerning a Russian company called OJSC PhosAgro (PhosAgro), a producer of fertilisers. The claimants, who are Russian nationals, are husband and wife. The first claimant, Mr Guriev, is the Deputy Chairman of PhosAgro. The couple, together with their family, are the main beneficial owners of the company. Since 2011 PhosAgro has been listed on the London Stock Exchange (LSE).

  9. The evidence of the defendant (CSD), is that PhosAgro was founded in or around 2001 by Alexander Gorbachev, and that he was its chairman until 2004. He is said to have fled Russia in 2003 after being accused by a Russian prosecutor of fraud in connection with PhosAgro's affairs. He currently lives in the United Kingdom. He denies the fraud allegations. He was granted asylum here in 2005, and an Interpol arrest warrant in respect of him was withdrawn in 2015. At some point, precisely when is not clear, Mr Gorbachev and a company named Marholm Limited (Marholm) instructed CSD by ``in respect of claims issued and/or which may be issued'' against the claimants

  10. CSD is a London-based company incorporated in 2011 by Tarique Ghaffur a former Assistant Commissioner in the Metropolitan Police, and led by Mr Ghaffur, Mr O'Keefe, who is a former Chief Inspector in the CID, and Robert Marshall, a former constable. CSD offers security and investigative services. Marholm is ``funding the investigations into the claims'' according to Mr O'Keefe. He also says that the UK and Cyprus legal representatives of Mr Gorbachev and Marholm were clients of CSD. Some doubt has been cast on that, and some of the documents suggest it may be inaccurate, but I do not need to decide the point.

  11. On 11 March 2015, Mr O'Keefe on behalf of CSD sent Mr Guriev as Deputy Chairman of PhosAgro a letter marked ``personal and in confidence''. It said that CSD had been instructed by Marholm to ``conduct a criminal and regulatory investigation into the circumstances leading to the flotation of PhosAgro'' on the LSE. The letter said that Marholm had also instructed Kennedys solicitors in London to advise on the matter, and later correspondence confirms that Kennedys were instructed by Mr Gorbachev. But Kennedys did not write to Mr Guriev. Only CSD did so.

  12. The letter referred to the prospect of criminal, regulatory and/or civil liability for fraudulent statements or omissions in the prospectus for the 2011 ``flotation'' and posed questions for Mr Guriev to answer. Mr Weekes, for the claimants, describes the letter as threatening. Ms Addy resists that characterisation. It is appropriate to cite parts of what was said, verbatim.

    ``We have had sight of the prospectus... Such Prospectus needed to adhere to the relevant Prospectus Regulations as apply to the same, including, in particular in relation to the strict disclosure requirements. We know from our previous experience that English Common Law requires that an IPO prospectus must be `strictly and scrupulously accurate' and that if a publically published prospectus does not make proper disclosure and an investor subscribes for securities on the basis of that wrong disclosure liability may flow for loss caused thereby.

    In addition to, and in tandem with, the above civil litigation considerations which may follow you should note that certain criminal liability will almost certainly arise for serious breaches of the said Prospectus Regulations: In particular I would like to draw your attention to Sections 2-4, Fraud Act 2006, and Part VI, of the Financial Services and Markets Act 2000.''

  13. The letter posed 7 questions, which Mr Guriev was asked to answer in his capacity as Deputy Chairman, ``to assist in our investigation''. It was said that this request was made ``under the provisions of United Kingdom's Freedom of Information Act 2000, as it relates to public entities registered within the United Kingdom and as regulated within the various Financial Services Regulatory Bodies.'' This of course was legally misconceived. PhosAgro, as a private company, is not subject to FoIA. The questions sought information...

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