In a case heard remotely amid the COVID-19 crisis, the High Court has held that it has jurisdiction to order a party to provide access to its email and social media accounts.
The judgment was the latest in a succession of applications arising out of longstanding efforts by the Claimants, Lakatamia Shipping Company and others, to enforce High Court judgments obtained against the First Defendant, Mr Su, in 2014 and 2015.
As part of those efforts, Lakatamia had obtained a worldwide freezing order against Mr Su, which required him to disclose his assets. With Mr Su said to lead a “lavish lifestyle” with property in Monaco, New York and Tokyo, he was seemingly reluctant to comply with his disclosure obligations, and the court found that Mr Su had never satisfactorily complied with various previous orders. Indeed so much so that, at the time of the hearing, Mr Su was serving time at HMP Pentonville for contempt of court. Against this background, Lakatamia sought orders from the court which would essentially take the disclosure process out of Mr Su’s hands.
Apparently agreeing that the prospects of Mr Su complying with his disclosure requirements himself were slim, the court made the following orders (among others):
- An order requiring Mr Su to identify his social media and email accounts to Lakatamia and an independent lawyer appointed by the court, and to give the independent lawyer access to the accounts.
- An order allowing the independent lawyer to review materials in the accounts and to provide non-privileged documents to Lakatamia.
The court was satisfied that it had jurisdiction to grant these orders both under section 37(1) of the Senior Courts Act 1981 (SCA) and under its inherent jurisdiction to ensure compliance with orders already made.
- An order requiring Mr Su to sign mandates to his email and social media account holders requiring them to provide details of his accounts to Lakatamia and grant access to the independent lawyer.
Somewhat conveniently, Mr Su claimed to have forgotten the passwords to all of his email and social media accounts. Unsurprisingly, the judge was not prepared to allow this to frustrate the earlier orders and found that he had jurisdiction, once again under s.37(1) of the SCA, to grant a “mandate order”. This was similar in principle to an order requiring the defendant to sign a mandate directed to his banks for the production of documents, for which there were several authorities. The order required Mr Su to sign the mandates there and then and to post them first class from HMP Pentonville, which he did.
This case confirms the court’s power to grant direct access to a party’s email and social media accounts to procure compliance with an obligation which the defendant refuses to perform itself. This is particularly interesting during the COVID-19 crisis when parties across the world are currently more reliant than ever on digital communication.
In circumstances in which Mr Su claims to have forgotten the passwords to enable him to access his email and social media accounts, granting the Mandate Application is the only means of seeking to ensure access to the [necessary] documents - Mr Justice Teare