As part of an application for an injunction in Capita plc v Darch and ors, the question arose as to whether an employer had a claim to property in corporate emails. The High Court judge ruled that, in the circumstances of this case, emails which might contain personal material did not have to be disclosed as they were not the property of the business.

Basic facts

Capita applied for interim injunctions against ten individuals which it had formerly or currently employed and a company called Archus Ltd which now employed them or had offered employment to them. Archus, which offered the same services as Capita (strategic healthcare consultancy), was in direct competition with it. 

Capita argued that each of the ten individuals had breached their contractual duty of confidentiality, and had infringed the company’s rights relating to its database of NHS clients and health services buildings. A number of the contracts of employment also contained post-termination restrictive covenants, which had also been breached in multiple ways. For instance, by setting up Archus; soliciting other employees of Capita to resign; deleting their emails from Capita’s systems in order to hide what they were doing; and accessing confidential information all with the intention of furthering the business of a competitor (Archus).

The company also made specific allegations against different individuals gleaned from itemised statements of company mobile phones, screenshots from a mobile phone and ghost images of emails from laptops which showed that they were involved in making plans for Archus whilst still working for Capita or while restrictive covenants were still in place.

Order sought by Capita

Capita asked the court to grant a very extensive order, which raised, among other things, the question as to whether an employer has a claim to property in emails or the content of emails that are sent by employees from the employer's email accounts.

High Court decision

For the purposes of an interim injunction, the High Court judge held that the question was not so much whether there were serious issues to be tried but whether Capita had made out a case for the particular forms of injunction that they wanted. In other words, the question was not whether there has been wrongdoing in the past, but "whether the effect of the past wrongdoing continues to confer a present and future benefit on the wrongdoer which the court should prevent". 

Although Capita had clearly established a number of serious issues that needed to be tried, the judge refused the order. Firstly, the breadth of the contractual restrictions that Capita tried to impose on its existing and former employees was too wide; likewise, the various forms of relief that the company had asked for; and thirdly “clouds of suspicion” were not the same as “cogent evidence of wrongdoing sufficient to warrant the particular injunctions” that it had asked the court to grant.

Specifically, the judge held that as not much of the material put forward by Capita in support of its application was “as sinister as it might seem at first blush”, it refused to order the defendants to hand over emails on the ground that “the contents of emails of the kind in issue in the present case are not property”. In addition, some of the emails might include personal material. As such, an order to disclose them would infringe the right of the defendants to respect for private and family life guaranteed by Article 8 of the European Convention on Human Rights.

Finally the judge observed that although the defendants had not submitted evidence to rebut the allegations against them, there was nothing inherently wrong with “planning to set up a competitive venture”.