Alex Ustych in first COA case on the correct avenue for data-related claims

Alex represented the successful respondent in Wysokinski v. OCS Security Limited [2026] EWCA Civ 26 (Bean LJ, Moylan LJ, Yip LJ). The judgment is the first Court of Appeal authority addressing the common argument that data protection and related claims (here, under Articles 6 and 8 ECHR) are so complex as to require the claim to be issued in (or transferred) to the Media and Communications List of the High Court. The judgment endorses (at par. 28) Nicklin J’s often-cited analysis in Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB) that there is “a category of non-defamation media and communications claims that are capable of being brought and fairly tried in the county court”, as well as his warning against over-complicating straightforward data protection claims with duplicative causes of action. Notably, the pleaded value of this claim (up to £30,000) was much higher than the previous cases where the ‘correct venue’ analysis resulted in a County Court transfer.

The complicated procedural background of this appeal involved a High Court Judge making a decision (without inviting representations) to transfer this claim to the County Court, based on the claim form alone. There were procedural issues with that Order as well as with the process which followed.

The respondent contested the appeal on the basis that the substantive transfer decision to the County Court was the only realistic choice available to the High Court Judge. As such, the transfer was inevitable notwithstanding the lack of reasons given and/or the appellant not having had the opportunity to have his objections considered by that Judge. The COA judgment provides useful guidance on the extent of reasons that should be given when making a decision without representations/a hearing.

However, most useful for data practitioners is Yip LJ’s setting out of the framework for determining where data-related claims should be issued and/or transferred, as well as the analysis of the Appellant’s arguments that this case was so complex that the High Court is the appropriate venue. The COA concluded that “even had the appellant been afforded the opportunity to make representations in the court below, it was inevitable that the claim should be transferred to the County Court” (par. 38). The appellant was ordered to pay some of the respondent’s costs of the appeal.

Alex Ustych was instructed by Ahmed Mangera of Weightmans. Alex is a specialist data protection/privacy and cyber security barrister who is ranked for this work in Legal 500 and Chambers and Partners. He is also an experienced appellate advocate, having appeared unled in four substantive COA cases to date.