The Data Brief

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

Smith – another trip down the MPI warren

15 July 2022

Saini J, who handed down the judgment in Warren v DSG Retail Limited [2021] EWHC 2168 (QB) which has become the much-quoted friend of Defendant lawyers, has confirmed in this new judgment that he stands by the decision.

Warren concerned a strike out application by the parent company of Currys PC World, which had been the subject of a large scale malware attack. Striking out the claims for MPI and BoC, Saini J held that both causes of action required a positive act on the part of a defendant. A claim could not be established on facts where the defendant was itself a victim, akin to a homeowner leaving their window unlocked and becoming the victim of a burglary.

In Smith, Saini J affirmed this decision. In Smith, the “clever pleader” of the Particulars of Claim framed potential “omissions” instead as “acts” (e.g. “the Defendant deliberately allowed the Claimants’ private information to be accessed… in circumstances where it was aware or ought to have been aware of an obvious risk of the private information being misused unless all reasonable and appropriate steps were taken to secure it from such unauthorised access and use”).

Saini J clarified the test. The test should not “depend on manipulations of language” but instead the question is “was the conduct complained of the claimant a misuse by the defendant of the information?”

The Court specifically considered whether Warren was wrongly decided, it being decided without reference to Swinney v Chief Constable of Northumbria Police Force [1997] QB 464. Saini J was satisfied that Swinney did not touch on the issue in Warren. Where Swinney concerned the relationship between a claim for negligence and a claim for breach of confidence, Warren concerned whether a claimant must establish that a defendant misused the information.

Further reading

Smith v TalkTalk Telecom Group Plc [2022] EWHC 1311 (QB)

Warren v DSG Retail Limited [2021] EWHC 2168 (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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