The High Court has refused to strike out a harassment claim brought by a solicitor against Kazakh mining company ENRC and a corporate surveillance firm.
Neil Gerrard, a white-collar crime partner at Dechert, has brought claims for breaches of data protection law, misuse of private information, harassment, and trespass arising from surveillance activities carried out by Diligence International on behalf of ENRC.
In a claim filed last year, Gerrard alleged that investigators installed cameras on his property, followed him onto a private Caribbean island and monitored him on an aircraft. He and his wife are seeking damages of up to £100,000.
Gerrard, who is due to retire this year, is embroiled in a long running dispute with ENRC after acting as a solicitor for the mining company between 2010 and 2013. The solicitor claims that ENRC has been seeking to obtain personal information relating to him since at least 2013, and has been conducting surveillance from at least 2014. All the actions complained of are said to be unlawful.
ENRC and Diligence argued the surveillance was reasonable and necessary in pursuit of the legitimate aim of investigating and preventing wrongdoing; that the instructions provided to Diligence and the documents produced in respect of the investigation were subject to litigation privilege; and that the surveillance did not constitute harassment.
In judgment, Richard Spearman QC dismissed the respondents’ strike out applications, stating: ‘The argument that the claim of Mr and Mrs Gerrard cannot have any real prospect of success because to accede to it would sound the death knell for surveillance activities which are legitimate and even necessary is... exaggerated and without foundation.’
On costs, Spearman said: ‘I was told during the course of the hearing that it is estimated that the costs of this litigation will amount to around £4m in total, while the claims are only worth something of the order of £100,000 in total. If those figures are right, the proceedings would not appear to make much sense if viewed in purely commercial terms. However, other considerations may be in play. Although the court has extensive costs and case management powers, resolution of these issues ultimately lies in the hands of the parties.’
Costs applications are yet to be determined.