Can a company require its former CEO to provide inspection and copies of emails sent and received by him while acting on the company’s behalf which were stored on his personal computer following termination of the agreement for the provision of his services?
Yes, said the Court of Appeal in the case of Fairstar Heavy Transport NV (Fairstar) v Adkins and anor. Mr Adkins provided his services as CEO through a company controlled by him and registered in Jersey. Fairstar is based in the Netherlands. The written contract between Fairstar and the Jersey entity is governed by Dutch law and the Dutch Courts have exclusive jurisdiction.
The Court of Appeal criticised the High Court for delving into issues regarding the proprietary rights (if any) of the parties to the emails and the information contained in them. The appeal was allowed on the basis that a principal is entitled to require production by an agent of documents relating to the affairs of the principal. "Documents" in this context included information recorded, held or stored by other means than paper. No submissions were made as to whether the information contained in the documents was confidential. Neither party took issue with the English court's jurisdiction to hear the claim, which concerned emails stored on Mr Adkin’s personal computer in England.
The case highlights a tool which may be useful where there is no employment contract in place requiring an employee’s delivery up of the employer’s documents on termination of employment and where former employees have retained documentation prepared while acting on behalf of their employer which may not constitute confidential information capable of protection following termination of employment.