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We don’t usually cover procedural applications like amendment or specific disclosure in the Data Brief: they don’t often raise substantive issues of information law. But the underlying claim in this one is decidedly eye-catching, and the risk of there not being a published judgment after trial is quite high (of 137 original claimants, all but three have discontinued).
The claim is brought by three former personal injury claimants. They alleged injury in two different road traffic accidents (C1 in one, C2 and C3 – father and minor son – in another). They each instructed the same solicitors firm, Ersan & Co, in their personal injury claims.
In five totally different sets of proceedings, DWF Law, representing an insurer, alleged fundamental dishonesty against a claimant also represented by Ersan. DWF provided evidence in support of that allegation in the form of a witness statement which referred to a dataset of 372 claims brought by individuals represented by Ersan against defendants who (via their insurers) were represented by DWF. There is no dispute that that dataset included the special category personal data of C1, C2 and C3 in these proceedings.
After extensive litigation, DWF were permitted to rely on this witness statement, and Ersan & Co gave an undertaking to the court in March 2023 that they would not make further applications to debar parties represented by DWF from relying on it. But in October 2023, this present claim was issued, with Ersan & Co on record and DWF as defendant, alleging that the creation and use of the information in the statement breached the personal data rights of the individuals who formed part of the dataset.
DWF argues that this is an abuse of process, as a transparent attempt by Ersan & Co to circumvent its own undertaking, and that in any event, its processing of the data used to create the statement was justified as being for the performance of a task carried out in the public interest, namely administration of justice, under Art 6(1)(e) UK GDPR, and that they had a legitimate interest in doing so under Art 6(1)(f). Though the judgment doesn’t say, it seems likely that they also rely on Art 9(2)(f) – processing being necessary for the establishment, exercise or defence of legal claims – to justify processing special category data, perhaps alongside the Art 9(2)(g) and Sch 1 DPA exemption relating to the administration of justice.
There is no need to go into the details of the interim applications themselves: the Claimants wanted disclosure by DWF of various communications between DWF and others, and DWF wanted to amend its Defence to clarify a matter of fact, and also to strike out parts of the Claimants’ witness evidence on the basis that it was irrelevant and/or inadmissible as being argument or non-expert opinion. The Claimants’ application failed and both DWF’s applications succeeded (in part on the latter one).
The use of the data protection regime by a litigant in one set of proceedings to try to control the conduct of a litigant in other proceedings is perhaps not wholly novel, but certainly unusual. There are broad exceptions for processing that is necessary for legal proceedings, which is a specific exception for both special category data (Art 9(2)(f)) and criminal offence data (para 33 Schedule 1). Legal professional privilege is also treated generously under the UK GDPR when it comes to dealing with data subjects’ rights – see para 19 of Schedule 2, and, when the Data (Use & Access Bill) is enacted, the new s.45A in Part 3 of the DPA for law enforcement processing. As a general rule, claims like this are inevitably going to be difficult to bring on their facts, as well as perhaps inevitably raising the question of abuse of process.
Additionally, there is an as-yet unresolved point (potentially to be determined by the Court of Appeal in the appeal from XGY v Chief Constable of Sussex Police & CPS [2024] EWHC 1963 (KB), to be heard this summer with four members of 5 Essex Chambers, including John, acting for the appellants/defendants) as to whether the immunity from suit attaching to things said and done in court proceedings bars claims under the UK GDPR/Data Protection Act 2018. DWF might have taken that point in these proceedings, since the processing complained of seems to relate wholly to the preparation of witness evidence, though they perhaps feel sufficiently confident in their freestanding arguments about abuse of process and in the justifications for processing that there was no need to break new legal ground.
We will keep an eye out for a trial judgment in due course.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
