The Court of Appeal has ruled in Fairstar Heavy Transport NV v Philip Adkins and other [2013] EWCA Civ 886 that a company could require a former CEO (who acted as agent of the company) to provide access to his business emails relating to the company's business affairs, despite the fact they were stored on his personal computer, even after termination of the agency agreement.

Background

Philip Adkins ("Mr Adkins") was CEO for Fairstar Heavy Transport ("Fairstar"), having been contracted by Cadenza Management, an agency company. No express contract of employment was entered into between Fairstar and Mr Adkins. When Fairstar was taken over by a competitor, the services of Mr Adkins were terminated. Fairstar sought an order for access to Mr Adkin's electronic business correspondence. Before the High Court, Fairstar's claim was dismissed, on the basis that it had failed to establish an enforceable proprietary claim in the emails. Mr Adkins relied on the argument that the content of an email is information, and that information is not property (Boardman v Phipps (1967)). Fairstar focused on the agent-principal relationship, citing Lindley LJ in Lamb v Evans (1897): "an agent has no right to employ as against his principal materials which that agent has obtained only for his principal and in the course of his agency. They are the property of the principal." In his judgment Stuart-Edwards J concluded that authority pointed against there being any proprietary right in the content of information, and this must apply to the content of an email, and found in favour of Mr Adkins. Fairstar appealed.

Decision

The Court of Appeal allowed Fairstar's appeal, finding that emails and their content stored and held in Mr Adkins' computer were documents for the purposes of the agency relationship, and survived its termination. In his judgment, Mummery LJ set out the following elements:

  • The relationship had been one of agent and principal.
  • Pursuant to this relationship, a principal is entitled to require production by the agent of documents relating to the principal's affairs. This right continues after the agency relationship has ended.
  • Documents may include information held electronically. Indeed, Civil Procedure Rule 31.4 states that a 'document' means "anything in which information of any description is recorded".
  • Materials held on a computer, which can be read on screen or printed out, are in principle covered by the same rule of agency as applies to paper documents. The form of recording or storage does not detract from the substantive right of the principal as against the agent to have access to their content.
  • It was unnecessary to explore whether the information in the content of emails was property owned by Fairstar, either as a matter of fact or law.

Comment

Mummery LJ did not go further in explaining whether non-confidential information could ever be proprietary, stating that "some kinds of information, such as non-patentable know-how, are more akin to property in their specificity and exclusivity than, say, personal information about private life". He considered that the references to proprietary rights were a "distraction from the centrality of the agency relationship and its legal incidents". The right to inspect and copy the emails on Mr Adkins' computer arose from the consequences of an agency relationship which survived its termination and this did not require a discussion of proprietary rights or whether the content of the emails was 'information'. The real issue was one of enforcement.

The fact that the information that Fairstar desired was stored in the form of email did not negate the right to have access to it. Mr Adkins was under a duty, as a former agent of Fairstar, to allow Fairstar to have access to emails sent and received by him whilst acting in the course of his role as CEO. The termination of this agency agreement did not terminate this duty.

This case indicates that a company may be able to recover documents that were created by an individual acting as agent for that company even after termination of the agency and that this right will exist, even where there is no return of property clause in the agency agreement and when the documents are stored on the individual's personal computer. This case also highlights the fact that, had there been an employment contract which specified that work-related emails are the property of the company, then legal proceedings may not have been necessary.