What’s Up with WhatsApp?

FKJ v RVT, QGN & CBN [2022] EWHC 411 (QB) & (subsequently) FKJ v RVT [2023] EWHC 3 (KB)

Private messages in a Work Setting – Misuse of Private Information – Abuse of Process & Strike Out – References to the terms of a Pt 36 offer at an interlocutory hearing.

By Matthew Pascall, Legal Director – Head of Commercial

(Estimated reading time: 9 minutes 43 seconds)

Temple has a well-deserved reputation as a leading ATE insurer for claimants pursuing privacy and related media claims. In this case Temple is the insurer of the Claimant who found herself having to respond to a complex strike-out application and an associated appeal prompted by the Defendants’ ultimately abortive efforts to stifle her legitimate claim.

The Claim

The Claimant (C) was a solicitor and had worked for two law firms of which the First Defendant (D1) was the managing partner. She was dismissed for alleged misconduct and subsequently presented a claim to the Employment Tribunal (ET) alleging that D1 had sexually harassed her.

In defending her ET claim, D1 referred to a large number of C’s WhatsApp messages (18,000!) in order to attack her credibility and argue that her ET claim was contrived and that much of the activity of which she complained had been either consensual or did not happen. Her ET claim was dismissed but she proceeded to issue a privacy claim against D1 and the two associated firms.

In her privacy claim C alleged that D1 had hacked into her WhatsApp account and used her phone to do so. D1 said that he had come across a number of the messages on her work laptop and received a number of others via a letter sent to him from an anonymous source.

The Strike Out – Part 1

D1 applied to strike out C’s claim and did so on the following three grounds:

i) Jameel abuse on the basis that C had suffered no or no substantial wrong and the litigation would, even if successful, result in no real benefit for C or nothing was in proportion to the costs of the proceedings and the necessary of limited court resources;

ii) Henderson abuse on the basis that C should have asked the ET to determine the privacy issue that she was now pursuing via her privacy claim;

iii) C was not permitted to use the WhatsApp messages disclosed in the ET proceedings by D1 in the privacy claim because documents can only be used in the proceedings in which disclosure is ordered.

Referring to a Part 36 Offer when Applying to Strike out the Claim

Before the hearing of the strike out application, D1 sought permission to refer to a Part 36 offer made by C in order to advance D1’s argument that the case should be struck out on the Jameel basis. D1 wanted to argue that the Part 36 offer revealed the allegedly modest amount for which C was prepared to settle, which, when compared with the likely costs of the litigation, suggested that the costs of the claim were wholly disproportionate to the true value C would gain by pursuing it.

The Master refused permission and D1 appealed. The appeal was heard before Collins Rice J and was dismissed in a judgment in February 2022: FKJ v RVT, QGN, CBN [2022] EWHC 411 (QB). In upholding the Master’s decision to refuse permission, the judge observed that:

(34) It [the settlement figure in C’s Pt 36 offer] was also not relevant on the particular facts of the case because (a) the proposed comparison between the settlement sum and the other two figures left out of account the settlement of the substantial counterclaim – significantly larger than the claim itself – reflected in the settlement sum, so it was a meaningless comparison in any event; (b) the Master was able on the particulars of the claim to be satisfied that, if liability were established, the value of the claim in damages was likely to be at least that of the sum in the Respondent’s claim form; and (c) the settlement sum expressly referred to the monetary element of the claim only, and the Part 36 offer was subject to terms and conditions which the Respondent had also brought her claim in order to secure.

(36)… So in any event knowing about the settlement sum – or even the whole of the Part 36 offer – was of no assistance to a court considering the future if any, and management, of a claim which, if liability were established, would on the facts alleged amount to a ‘ very serious breach of [the Respondent’s] private information ‘.

(37) These are all conclusions which appear to me to be understandable, rational, and well within the range of decisions properly open to the Master on any basis , on the facts, for the reasons she gave. On the assumption most favourable to the Appellants – that she had legal power to grant their application in the exercise of ordinary case management discretion – she would not have done so anyway. She clearly gave her mind to the substance and merits of the application, and reached conclusions supported by evidence and reasoning.”

The Strike Out Application – Part 2

The issue of the Part 36 offer having been dealt with, Master Davison heard the strike out application in December 2022 and handed down his decision on the 11^th January this year. Looking at the overall claim for the misuse of private information, the Master observed:

“The defendants…, have pleaded that she could not have had a reasonable expectation of privacy or confidence in relation to material saved or downloaded to her work laptop during working hours. But (a) that plea could not apply to the messages which, on the defendants’ case, were apparently intercepted by the writer of the anonymous letters and (b) no explanation or authority has been offered for the proposition that private information downloaded to a work laptop (a very common scenario) thereby loses its private character.”

The Master summarised Jameel abuse of process by adopting part of the judgment of Nicklin J in Tinkler v Ferguson [2020] EWHC 1467 (QB) at [46]-[49] :

(46) “The Court has jurisdiction to stay or strike out a claim where no real or substantial wrong has been committed and litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures: in other words, “the game is not worth the candle”

The Master did not hesitate to reject this ground for striking out the claim:

(13) It is unrealistic to submit that this claim reveals “no real or substantial wrong” or that “litigating the claim will yield no tangible or legitimate benefit to the claimant proportionate to the likely costs and use of court procedures”. Indeed, it is so unrealistic as to call into question whether the defendants have any genuine or honest belief in this being a proper basis for strike-out. I have described the scale of the hacked data and the nature of the material. As Ms Page KC and Mr Hirst put it in their skeleton argument, the material in the defendants’ possession enabled them to “rove through several years of the claimant’s day-to-day communications on all aspects of her life with those closest to her”. The quantity of data was enormous and much of it was of the most personal and intimate kind. It is unnecessary for me, at this stage, to venture possible figures for the damages 1 that would be payable in the event that the claimant was successful (in whole or in part).”

Turning to the Henderson abuse point, D1 contended that the right and only place to address the alleged misuse of the WhatsApp messages was in the ET proceedings and C had not done so. In very basic terms, a court can strike out a claim if it could and should have been included in earlier proceedings that have since concluded.

The reason is that the court will take care to avoid the same issue being litigated where it could and should have been litigated in any earlier and appropriate proceedings thus avoiding delay and unduly oppressive and protracted litigation. The Court dismissed this argument with ease. The ET could have excluded the WhatsApp messages, exercising a discretion available to it to do so. However, it is unlikely that they would have done so given the cogency and relevance of some of the messages to the issues before the ET.

Even if they had excluded the messages, the ET, which is a creature of statute, could not have determined a claim for the misuse of private information by D1 as the ET simply does not have jurisdiction to do so. It followed that there was no basis for striking the case out as an abuse of process under the Henderson principles.

The final basis for striking out a claim flows from the well-established rule, incorporated into the CPR under CPR Rule 32.22, that:

“(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –

(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;

(b) the court gives permission; or

In effect, D1 argued that C could not rely on or refer to the messages because they had been disclosed in the ET proceedings and thus could only ever have been used for the purpose of those proceedings. Given that these were C’s own messages, it was a startling argument to advance, and it got short shrift.

The Master concluded: (i) he would have granted permission, (ii) the documents belonged to C so no permission was required and (iii) all of the WhatsApp messages had been placed into the hearing bundle referred to throughout the ET proceedings and had thus become public documents.

The Defendants continue to defend the claim and pursue the counterclaim, relying on and alleging the torts of malicious prosecution, abuse of process and harassment.

Conclusion

The Defendants’ attempts to bring this claim to an end failed in every respect and appears to have been doomed from the start. Defendants are perfectly entitled to seek the early dismissal of claims and the courts provide a number of well-established processes, procedures and discretions to bring genuinely hopeless or otherwise inappropriate claims to an early end.

It is in the public interest that the courts are able to do this in order to manage limited resources and protect litigants from incurring the cost of defending claims that should not see the light of day. These applications failed because the Claimant clearly had a perfectly legitimate claim that should, barring a settlement, proceed to trial. One might wonder if the Defendants ever thought otherwise and were simply prepared to throw away costs in order to avoid a trial?

The Temple Perspective

Without the backing of Temple’s ATE insurance, it is unlikely that the Claimant would have been able to withstand the Defendants’ interlocutory attack on her claim – the risks would have been too great and she might well have found herself having to settle on a very poor basis or even abandon her claim in order to avoid the risk of paying substantial costs to the Defendants.

The majority of our media insured are private individuals, often of modest means. They are only able to pursue their claims because of the availability of conditional fee arrangements with their solicitors and counsel and the protection of ATE insurance from Temple.

If you would like more information on our ATE insurance and disbursement funding products for media litigation, or to discuss a case, please contact us on 01483 577877 or send an email to

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What’s Up with WhatsApp?

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Matthew Pascall

Legal Director – Head of Commercial

Matthew Pascall

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