BES Utilities has lost a claim for judicial review following the raids on its premises by Lancashire Police and Trading Standards two years ago.
In a related action, the company is also seeking £8.6m damages from Cheshire West and Chester Trading Standards.
The authorities are conducting an investigation into allegations of fraudulent sales of utilities. They seized data storage devices with a capacity of 53 terabytes in the raids in July 2016.
The data, some 200 million documents and 770,000 recordings of phone calls, was copied by authorities, and the physical devices returned.
As well as the physical devices, BES had sought return of the copied data not relevant to the investigation under sections of the Criminal Justice and Police Act 2001 (CJPA 2001). At a case heard at Preston Crown Court in September 2017, Judge Mark Brown refused to make any direction about the copied data held by Trading Standards.
Section 53 CJPA 2001 requires those holding seized material to conduct an initial assessment, keep only what is covered by the warrant, and hand back the rest.
However, there are exceptions to the rule when properly seized material cannot, applying a test of reasonable practicability, be separated from material not covered by the warrant.
Trading Standards had reasoned that to go through 53 terabytes of copied data, separate out what was relevant to the investigation, and return the remainder, would have been hugely time consuming, expensive and disruptive: 53 terabytes of data amounts to about five times the information contained in the US Library of Congress in Washington. Justice Brown agreed.
BES contested the judgement and sought a judicial review. It was heard on 1 May 2018 at the Royal Courts of Justice by Lord Justice Bean and Mr Justice Green and the judgement was handed down on 19 June. The claim failed.
Mr Justice Green recorded concerns arising from the litigation, including his opinion that the “Claim constitutes satellite litigation to undermine the investigation being conducted by the Authority”. Justice Green also stated: “It is obvious that the allocation of human resources to the analysis of over 200 million documents and 770,000 audio recordings would be a vast, time consuming and expensive exercise and would distract and divert attention from the investigation. There is no material utility in such an exercise save to drive the Authority up a blind alleyway.”
The judgement can be found here.
BES says its related damages claim against Trading Standards relates to reputational and financial loss to the business, along with sister company, Commercial Power, which was also visited under warrant.
Andy Pilley, chairman of BES Utilities, said: “We are extremely disappointed with the outcome of the Judicial Review and we are requesting permission to appeal to the Supreme Court for a review of this decision.
“We maintain that Trading Standards seized, and continue to hold, large amounts of data and information which lies beyond the scope of their investigation and the warrants they were granted by the courts.
“We firmly believe this is wrong, goes against what the law states, and is therefore a matter of great concern.
“This investigation has been damaging for our business and its reputation and any allegation of wrong-doing is strenuously denied. To date, and despite the passage of almost two years since Trading Standards executed search warrants, no director of BES or Commercial Power has been interviewed by investigating officers.
“A claim for damages, in excess of £8.6 million, in relation to significant reputational and financial loss suffered by BES has been lodged with the High Court.”
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