The Price of ‘Out of the Norm’ Aggression in Pursuit of a SAR

High Court orders Claimant to pay more than £80,000 in costs

In 2021 Mr X made a Subject Access Request to The Transcription Agency LLP, a provider of transcription and court reporting services, and to a High Court Master and Costs Judge under the UK GDPR and DPA 2018 seeking the personal data they (respectively) held about him. The requests arose out of longstanding litigation in the High Court including costs proceedings, during which the claimant made complaints of judicial misconduct.

Each of the defendants relied on the statutory exemption under paragraph 14 Part 2 Schedule 2 to the DPA, which enables personal data to be withheld from an individual if, among other things, it is processed by an individual or court acting in a judicial capacity or if its disclosure would be likely to prejudice judicial independence (“the judicial exemption”).

The matter came before Farbey J at the beginning of this year and she recorded in her judgment, which was handed down on 9 May 2023 (X v (1) The Transcription Agency LLLP (2) Master Jennifer James [2023] EWHC 1092 (KB)), that ‘Counsel’s researches have revealed that this exemption had not been the subject of previous High Court or appellate authority’.

The Judge approached the claim by dividing it into four issues, which she determined, following a three-day trial, as follows:

1. Scope of the judicial exemption: as a matter of law, were either or both of the defendants entitled to withhold some or the entirety of the claimant’s personal data on the basis of the judicial exemption?The Court held that there was no legal bar to the defendants’ withholding the claimant’s personal data on this basis.There is an intrinsic and enduring connection between the independence of the judiciary and immunity from suit at common law. The objective is that courts do not submit to the wishes or stratagems of the parties and are not subject of partisan pressures but are free to take decisions that may have adverse consequences for a party without the threat of litigation.These principles apply to paragraph 14. The UK GDPR and DPA 2018 scheme is not a vehicle for a party to proceedings to root out information about a judge, nor a mechanism for holding judges to account.Actions taken in relation to transcript requests by both defendants fell within the judicial exemption, which must be interpreted broadly.
2. Procedure for consideration of whether the judicial exemption applies: does the court have the power to consider the withheld material in closed session (i.e. in the absence of the claimant and his legal representatives).The Court held there was such power in proceedings brought under s167 of the DPA 2018, either by statutory implication or through the High Court’s inherent jurisdiction. Data protection lawyers should note and file this aspect of the decision for potential future use.
3. Application of the judicial exemption to the facts of the case: as a matter of fact, were some or all of the withheld personal data covered by the judicial exemption?The claimant was not entitled to any disclosure and the entirety of the withheld data fell within the judicial exemption. The Court was satisfied that (i) the second defendant processed the claimant’s personal data acting in a judicial capacity and (ii) the first defendant processed his data only as an adjunct to judicial processing. If she was wrong about that, the subject access provisions did not apply because the application of those provisions would be likely to prejudice judicial independence.
4. Did the second defendant reply to the SAR in time? The claimant failed to meet the burden on him to prove that the second defendant responded outside the period of one month upon receiving the claim. Even if there had been a two day delay, it was trivial.

On 15 September 2023, Farbey J handed down judgment on costs. She concluded that the claimant advanced and aggressively pursued the litigation against the first defendant in a manner that was out of the norm such that indemnity costs would be awarded. He had made aggressive and wide ranging allegations of misconduct against the first defendant. She also concluded that he had, throughout the litigation, made baseless allegations against the second defendant (including perverting the course of justice, misleading a court, failed to stand up to the Government and other attempts to besmirch the Judge’s character and reputation) which implied that she had behaved dishonestly and improperly. Again, indemnity costs were awarded.

The claimant was ordered to make an interim payment of costs as follows:

• 90% of the first defendant’s budgeted costs in the sum of £49,731.48 and 50% of its incurred costs of £11,552.80; and
• 90% of the second defendant’s budgeted costs of £27,536.62 and 50% of its incurred costs of £10,171.50.

The decision provides a salutary warning regarding the aggressive pursuit of litigation involving multiple unfounded allegations, here, by a represented Claimant. In this instance, the important constitutional context undoubtedly contributed to the costs decision.   

Further reading:

X v The Transcription Agency LLP, Master Jennifer James [2023] EWHC 1092 (KB)

and

X v The Transcription Agency LLP, Master Jennifer James [2023] EWHC 2283 (KB) 

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Authors

Francesca Whitelaw KC

Call 2003 | Silk 2023

Robert Talalay

Call 2010

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