WhatsApp: Dispute over how firm accessed messages
A High Court master has rejected what he described as a law firm owner’s attempt to “stifle” a misuse of private information (MPI) claim by a junior solicitor he dismissed by applying to have her case struck out.
Master Davison said 18,000 WhatsApp messages obtained by ‘RVT’ amounted to “several years’ worth of day-to-day information about FKJ’s professional, social and private life, including about her health and sex life”.
Some of the images – sent to her now-husband and female best friend – were “of the most intimate kind”.
FKJ qualified as a solicitor in January 2017, starting work the following month for RVT, managing and sole equity partner of two connected law firms.
FKJ was dismissed for falsifying a timesheet at the end of 2017. She launched sex discrimination, unfair dismissal and wrongful dismissal claims in March 2018.
Delivering judgment in FKJ v RVT and others [2023] EWHC 3 (KB), Master Davison said the “nub” of the solicitor’s claims were that she had suffered sexual harassment from RVT, “ranging from inappropriate remarks to sexual touching”.
A “significant component” of the evidence deployed against her was her own WhatsApp messages – some “undermined her credibility” and demonstrated that some of the conduct of which she complained was either consensual or did not happen.
The employment tribunal rejected FKJ’s claims in March 2019. The month before, her solicitors wrote to RVT alleging that the messages had been hacked and putting him on notice of an MPI claim.
FKJ, represented by counsel, did not ask the employment tribunal to rule on any of the hacking allegations or raise the question of admissibility of the WhatsApp messages in those proceedings.
She argued that RVT had hacked into her account through WhatsApp Web – which allows users to use the app from their computers – by using her smartphone to scan the QR code generated to access the account.
RVT argued that “a substantial quantity of messages” were found on the solicitor’s laptop after she left the firm and “two further tranches of messages had been received via letters from an anonymous source”.
The MPI claim was launched in 2019 and RVT applied to strike it out and for summary judgment on a counterclaim for malicious prosecution. This has taken two years to reach court.
Master Davison said his “clear conclusion” was that RVT’s claims were without merit.
“My overall impression is that they are an attempt to stifle a claim that the defendants would prefer not to contest on its merits.”
He went on: “I find it hard to agree that the claim will face significant problems. Indeed, on present material (and without so deciding), it seems to me that the issue will more likely be the extent rather than the principle of the claimant’s recovery in her MPI claim.”
Master Davison said only about 40 of the vast collection of messages were actually used at the employment tribunal. The bulk had “no relevance” to the proceedings, and there was “no justification” for their retention or use.
He accepted that the claimant’s costs budget was “high” at over £800,000, but RVT had counterclaimed for hundreds of thousands of pounds and the claimant’s budget had not been subjected to costs management.
He rejected RVT’s applications to strike out the FKJ’s claim for abuse of process, for summary judgment on the counterclaim, for an interim payment of £250,000 and/or for conditions to be imposed requiring the claimant to pay a total of £450,000 into court on account of costs.
Master Davision added that he was “troubled” by the anonymity order imposed on the case to “avoid frustrating” a permanent restricted reporting order made by the employment tribunal.
He was “minded to refer this matter back to the employment tribunal at Central London”, to be considered by the regional employment judge.
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