The Data Brief

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

Jameel arguments – not worth the candle to run?

23 February 2023

Wilson v Mendelsohn & ors [2023] EWHC 231 (KB)

In Wilson v Mendelsohn & ors [2023] EWHC 231 (KB), Master Davison dealt something of a blow to the Jameel jurisdiction to strike out claims as an abuse of process where ‘the game is not only not worth the candle, it is not even worth the wick’, particularly in misuse of private information (MPI) claims. The claim relates to a dispute on Twitter, with the claimant bringing claims in libel, MPI, for breach of the UK GDPR and for harassment. Following a trial of meaning for the libel claim, the defendants applied to strike the claim out. The challenge to the MPI claims was that there was no reasonable expectation of privacy and that they were a Jameel abuse. The challenge to the GDPR claim was that tweeting was part of ‘personal or household activities’ and therefore outside the scope of GDPR.

The GDPR challenge was dealt with swiftly: it was a matter for trial whether activity online was part of ‘personal or household activities’, applying the well-known CJEU case of Buivids v Datsu valsts inspekcija (C-345/17).

The challenge based on no reasonable expectation of privacy was also held to be a matter for trial, applying ZXC v Bloomberg [2022] UKSC 5. That is unsurprising: it has become increasingly clear that stage 1 of a MPI claim is so heavily fact specific that it will be relatively unusual for this to be a strike out or summary judgment point.

The Jameel submission was considered a little more fully. The Master identified the ‘two strands’ of Jameel abuse of process – first, the absence of any ‘real or substantial wrong’, and second, ‘the lack of a ‘tangible or legitimate benefit proportionate to the likely costs and use of court procedures’. The second strand was held to be subordinate to the first: where there has been a real or substantial wrong, the court will usually be able to use its case and costs management powers to fashion an appropriately proportionate procedure to adjudicate on the claim. The Master noted that Jameel applications by defendants were inevitably self-serving (despite praying in aid court resources and proportionality), which gives rise to a general suspicion that they are tactical. On the facts, this was not a Jameel case and strike out was refused. The Master also held that this was not the sort of case where overlapping claims should be ‘pruned’ (compare, e.g., Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB) at §§25-28).

This judgment is likely to be relied on by claimants seeking to resist Jameel applications. It is worth noting that the presence of a viable defamation claim often strengthens a claimant’s hand on this issue, as it did here, and Jameel may still be a useful point of principle for very low value data protection or MPI claims. But with those increasingly being allocated to the Small Claims Track, that may well be the proportionate procedure permitting them to be adjudicated.

Related cases:

Wilson v Mendelsohn & ors [2023] EWHC 231 (KB)

Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB)

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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