Once again, for some inexplicable reason, a fairly obvious case has baffled the Courts because it involved the use of email.

Although the facts in Fairstar – v – Adkins are unusual, the problem was a familiar one. Mr Adkins was the former CEO of Fairstar. He had all his emails relating to the business on his own laptop. Because Mr Adkins was actually employed by a service company in Jersey who made his services available to Fairstar, he was not an employee of Fairstar’s. A consequence of this arrangement was that emails addressed to him at Fairstar were forwarded to his private email address (and then deleted from Fairstar’s server).  When he replied to emails, Mr Adkins did not copy them to Fairstar.

When a problem arose in relation to a very high value contract, Fairstar therefore found itself without the relevant emails and, already being in dispute with Mr Adkins, perhaps not unusually, he refused to hand them over.

We see this problem time and again when directors leave a company. Usually there will be email policies and provisions in employment contracts which protect the company’s position, but here there were none.

The answer to the question is pretty simple. In his role as CEO, Mr Adkins was acting as an agent for the company. It is well established that at the end of an agency relationship the principal is entitled to production of documents relating to its affairs. Emails are documents (surely beyond debate?) and – wait for it – therefore emails must be produced to the principal just like paper documents, as has been the case since 1851, if not before. The Court of Appeal therefore ordered him to produce the emails to Fairstar.

Perhaps the unusual facts caused a degree of confusion in the Court, or maybe it was the strangely unsettling nature of email. Anyway, when it first came before the High Court, since no claim was made for breach of copyright or misuse of confidential information, or under a contract of employment, the lawyers for both sides and the Judge backed themselves into the corner of having to decide whether Fairstar had a proprietary claim to the content of the emails. Fairstar argued for some kind of property right in the contents (even though it was not contended that they contained intellectual property) whereas Mr Adkins said that information was not property and the claim was fundamentally misconceived. The Court of Appeal side stepped this debate by following the agency route and applying it to electronic documents.  It ducked the question of whether non confidential information in an email could be property or who would own its contents.

There was just a hint though that this issue might be revisited another day, presumably when another case based on unusual facts arises, when the Court of Appeal said: “It would be unwise… for this court to endorse the proposition that there can never be property in information without knowing more about the nature of the information in dispute and the circumstances in which a property right was being asserted.”

For today, the message is clear. Companies and employers should make sure that anyone with access to their email systems is subject to clear email confidentiality and data protection policies and terms of use.