The Data Brief

A monthly data protection bulletin from the barristers at 5 Essex Chambers

Data protection inception: judge judges data processing by judge

29 June 2023

X v The Transcription Agency LLP & Master James is a valuable addition to the relatively scant case law on DSARs under the UK GDPR. As well as resolving a significant point of practice regarding how such claims are to be litigated, it also supports a robust attitude to what might kindly be described as an over-ambitious use of the DSAR regime. Perhaps that at least partly stems from the fact that this was a DSAR made by a litigant to the High Court Master who had (largely) ruled against them in costs proceedings, seeking both any personal data held by the judge, and also any held by the transcribers of various court proceedings. Both data controllers refused the DSAR on the basis of judicial exemption in paragraph 14 of Schedule 2 DPA.

Farbey J held that they were right to have done so. In the course of her judgment, she held (after full argument) that notwithstanding the lack of an equivalent to s.15(2) DPA 1998 in the DPA 2018 or UK GDPR, she could hold a closed hearing where she considered the withheld material in the absence of the requesting party and his representatives – thus resolving a knotty procedural problem which has arisen in a number of DSAR-related claims. She also held that the judicial exemption is a broad one, and even in the absence of witness evidence she was entitled to draw inferences from the circumstances of the processing – by a judge dealing with proceedings in court – to find that it was engaged on these facts. As such, the data was being processed in a judicial capacity. In any event, disclosure would be likely to prejudice judicial independence, by forcing a member of the judiciary to be accountable to a litigant other than in the course of her handling of the proceedings and her judgment – for which the proper route of challenge was an appeal. Interestingly, Farbey J held that the right of access regime ‘has a specific and limited purpose, which is to enable a person to check whether a data controller’s processing of his or her “personal data” unlawfully infringes privacy rights and, if so, to take such steps as the DPA 2018 provides’ and that ‘it is impermissible to deploy the machinery of the [DPA] as a proxy for the wider purpose of obtaining documents with a view to litigation or further investigation’. That looks very much like a resurrection of the ‘collateral purpose’ defence to a DSAR which has long been thought deceased.

Finally, Farbey J ruled that a possible two-day delay in responding to the DSAR was trivial.

All in all, a helpful judgment for data controllers – if one on unusual facts.

Further reading: X v The Transcription Agency & Master James [2023] EWHC 1092 (KB)


Aaron Moss

Call 2013

John Goss

Call 2015

The Data Brief

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.

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