REPUBLIC OF MOZAMBIQUE V CREDIT SUISSE INTERNATIONAL AND OTHERS [2022] EWHC 3054 (COMM)

HEADLINE SUMMARY   

Where English law applies to a dispute, an employer (by default) has 'control' (i.e. the right to possess, inspect and take copies) of electronic documents held by employees (past or present) relating to the employer's business. Where such documents are held by employees on their personal email accounts or devices, the employer still has 'control' of the relevant documents, unless the employment contract says otherwise (and the employer may have obligations to review/ disclose such documents in any litigation).

The Commercial Court has determined that this degree of control will also be presumed to apply to foreign entities who are involved in English litigation (such that the court can order them to use best endeavours to obtain the relevant documents), unless the party can show that the 'control' rule is not the same in the applicable foreign law.

FACTS

The claimant (The Republic of Mozambique) (C) employed individuals who often used personal email accounts and devices to send and receive electronic communications for business purposes. The defendant (Credit Suisse) (D) compiled a list of the claimant's key employees (including senior government figures) and sought orders from the court that:

• C identify each individual from the list whose consent had already been sought, to search and give disclosure of their accounts or devices;
• C confirm each individual's response C's request for such consent; and
• provided there were relevant employees whose consent had not been requested by C, that C seek those employees' consent to search and give disclosure of their accounts or devices.

D's application for these orders relied on C having 'control' of these email accounts and devices (under English law, a right to possession, inspection and/or to take copies of documents stored on them) for the purpose of disclosing documents in the litigation.

C argued that the court had no jurisdiction to make the requested orders, based on the decision in Various Airfinance Leasing Companies v Saudi Arabian Airlines [2022]. The Judge in that case had said it couldn't be presumed that a foreign company had 'control' of documents stored on its employees' personal email accounts or devices, unless there was a contrary provision in the relevant employment contract. This had created a requirement for a party seeking disclosure from a foreign employer to show that the English law definition of 'control' applied.

DECISION: COURT PRESUMES THAT ENGLISH LAW DEFINITION OF "CONTROL" APPLIES

The judge in this case doubted the decision in Airfinance Leasing and reversed the requirement.

Where a party is a company/ institution/ state, and English law applies to the relationship between (i) that party and (ii) a past or present employee who used personal email accounts or devices to conduct that party's business, the court would readily find that the party has 'control' – and could seek access to employees' personal email accounts/ devices.

Unless there is evidence shown to the contrary (expert evidence on the relevant foreign law), employees of foreign companies have duties that are materially the same as under English law. So, where employees' personal accounts are used for work purposes, the employer would need access to them.

COMMENTARY

The decision in Republic of Mozambique v Credit Suisse is a pragmatic one. The onus, in any English litigation, is on foreign entities to show (if possible) that the English law definition of 'control' should not apply to them. The decision reduces the burden on parties seeking disclosure from foreign entities (including in having to adduce often costly and time-intensive expert evidence on foreign law) and limits the scope for foreign parties to try to sidestep disclosure obligations.

It also serves as a warning to employers (timely, given the rise in flexible and home-working), both domestic and overseas, to keep a reasonably tight rein over their employees' business communications, and to train employees not to send business communications from their own personal devices/ email accounts.

Anouj Patel and Lucy Balmforth