“(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
“The claimants believe that the facts stated in these particulars of claim are true. The claimants understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”
“45. By reason of Defendant's failure to comply with its duties (both statutory and contractual) as alleged in paragraphs 40 and 42 above: (a) each of the Claimants has suffered and continues to suffer damage, namely that the security and integrity of his or her personal data has been compromised as aforesaid, rendering each of the Claimants more vulnerable to nefarious activities by criminal actors, and, under Article 82 of the GDPR and section 168 of the DPA 2018, each Claimant is entitled to compensation from the Defendant for that damage in an amount that the Court considers just and; and (sic) (b) each of the Claimants has suffered distress and, under Article 82 of the GDPR and section 168(1) of the DPA 2018, each Claimant is entitled to compensation from the Defendant for that distress.”
“46. In support of their claim for aggravated damages for the Defendant's failure to comply with its duties (both statutory and contractual) as alleged in paragraphs 40 and 42 above, the Claimants will rely on the following facts and matters, as well as any further relevant facts and matters that emerge upon disclosure or otherwise. PARTICULARS OF AGGRAVATED DAMAGES The Defendant's lax approach to ensuring the data security of the Claimants' personal data and its inadequate response upon learning of the Data Security Breach aggravated the Claimants' material and non-material damage, such as to render a basic compensatory award, including one providing for distress, inadequate to reflect: (a) the affront to their personal privacy and data security; (b) the Claimants' enduring and irresolvable apprehensions as to the criminal uses to which their personal data accessed through the Data Security Breach might be put; (c) the inconvenience to which the Claimants have been put in taking measures to limit the opportunity for his or her personal data accessed through to the Data Security Breach to be used to exploit, extort, defraud or otherwise cause harm to him or her.”
“12. The Defendant’s position in summary is as follows: (a) The claims are an abuse of process in that: (i) the solicitors acting for the Claimants – Barings Law (“Barings”) – have irrevocably tainted the Claimants’ evidence by ‘putting words into the Claimants’ mouths’ on the fundamental (and highly subjective) issue of loss and damage; and/or (ii) Barings’ Craig Cooper has signed a Statement of Truth attesting to the truth of so-called “Particulars of Distress” pleaded on behalf of the Claimants in circumstances where, as he knew or should have known at the time, those “Particulars” did not reflect instructions given by the Claimants. (b) Further or alternatively: (i) All causes of action based on the Other Breach Allegations fall to be struck out on the basis that litigating them would (1) substantially and pointlessly increase the cost of this litigation, and accordingly (2) amount to abuse of process, because they are not ‘worth the candle’ of litigation. (ii) The Claimants’ pleaded claim to damages for mere breach of duty or exposure to a risk of harm, if such claim is indeed made, falls to be struck out because it is bad in law. (iii) Insofar as the so-called “Particulars” of distress for any Claimant in Schedules 4-5 to the Particulars of Claim are blank, internally inconsistent or do not aver that the Claimant was distressed, that Claimant’s case falls to be struck out. (iv) The Claimants’ pleaded claims to aggravated and exemplary damages also fall to be struck out because they are also bad in law. (c) Further or alternatively, over a third of the Claimants – 1,472 of them – do not appear to have been affected by the Cyber-Attack: on the information available to the Defendant in light of the Claimants’ pleaded case, their personal data was not exfiltrated, and their claims fail accordingly. These “Unaffected Claimants” are identified in Schedule X hereto. (d) Certain personal data of the remaining Claimants (the “Affected Claimants”) was exfiltrated. The Affected Claimants are identified in Schedule Y1 hereto insofar as each such Claimant has accurately identified the pension scheme of which they were a member, and Schedule Y2 insofar as any Claimant has not. (e) Save in the case of the Claimants listed in the last sentence of paragraph 6 above, the personal data of all Affected Claimants was processed by the Defendant qua processor. (f) Without prejudice to the foregoing, it is not admitted that any Claimant suffered compensable harm as a result of any alleged (or admitted) breach of the duty by the Defendant. The Claimants are put to strict proof with respect to the same.”
“1.1 (1) These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practicable – (a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; f) promoting or using alternative dispute resolution; and (g) enforcing compliance with rules, practice directions and orders.”
“16. On27 April 2022 , the court made an order pursuant toCPR 18.1 (1)(b) for the claimants to provide further information by way of claimant-specific statements of case. These took the form of individual schedules verified by statements of truth. Features of significance for present purposes are these: (1) Each claimant was ordered to state whether they had "suffered any annoyance and/or distress and/or anxiety". Some of the schedules responded by using the word "distress" or the word "anxiety" or both. Other individual schedules did not use the word "distress". Some 34 said in one way or another that the claimant had not suffered "distress". Different forms of words were used to describe the officer's emotional response to the breach, including "stress", "annoyance" and "irritation". Some schedules used qualifying adjectives, characterising their reactions as "mild", "minor", or "temporary". (2) Some of the schedules gave explanatory or supporting details. For instance, the first claimant's schedule explained that he had been distressed about "the potential consequences of the information falling into the hands of someone on the other side of the law". Although he considered the risks to be "remote" he suggested they were "live and real". He also said he suffered anxiety over the potential for other misuse of the data, such as its use to open bank accounts, or apply for credit cards in his name. Concern at what might happen if information was accessed by criminals was a common theme. So was concern at the prospect of identity theft. Other worries were identified. Another claimant (no 45) was also "concerned" because the Original Residential Address was owned by the parents of his ex-partner, with whom he had experienced "significant issues" particularly around financial matters. He was fearful of what his ex-partner might do with details of his income and other personal information. (3) Required to state whether they had "a medical condition caused (or exacerbated) by the misaddressed ABS" a substantial number of the claimants asserted that they did. Among those are 42 of the appellants, each of whom has served a medical report in support of that assertion. We have not been provided with all of these but have been shown three exemplars, each of which contains details of the kinds of distress or concern or other emotional reaction reported by the particular appellant.”
“22. In the light of the judgment below and directions given by this court the appellants have prepared draft Amended Master Particulars of Claim. Relevantly, these abandon the misuse of private information claim and the assertion that the appellants' personal data actually passed into the hands of any third party. Their claim now is that by processing their data in breach of statutory duty the respondent caused them to suffer "anxiety, alarm, distress and embarrassment" for fear that their personal data "may have" passed into the hands of unknown third parties. They seek to add the words "and/or as a result of uncertainty as to what had become of their ABSs and who may have opened it, and/or by the fact that their Personal Data may be or may have been misused." This all appears legitimate in principle and I would grant permission to amend, without prejudice to the issues that arise about the viability of individual claims.”
“The GDPR and DPA 41. Article 82 of the GDPR provides, so far as relevant: "(1) Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller …for the damage suffered." (2) Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation …" 42. Section 168(1) of the DPA provided at the material time that "In Article 82 of the GDPR (right to compensation for material or non-material damage), 'non-material damage' includes distress." The pleaded claims 43. The appellants' case, as set out in the draft Amended Master Particulars, now includes just two generic allegations. First, that the breaches complained of led each appellant to experience "anxiety, alarm, distress and embarrassment" at the prospect or possibility that their personal data may have come into the hands of third parties and been misused or exposed to the risk of misuse. This is expressly pleaded as "non-material damage". Secondly, 42 of the appellants allege that the breaches caused them to suffer an aggravation of a pre-existing medical condition. For this, general damages are claimed. The Particulars do not categorise this head of loss as material or non-material. The individual schedules, being pleaded by way of additional information, must be read in the context of the Master Particulars.”
“Incredible? 44. It is convenient to begin with Mr Sharland's invitation to reject the factual allegations pleaded by the appellants as simply incredible and to enter summary judgment for the respondent on that basis. 45. Referring to well-known passages in Three Rivers DC v Bank of England (No 3)[2001] UKHL 16 , [2003] 2 AC [95] and E D & F Man Liquid Products v Patel[2003] EWCA Civ 472 [10] Mr Sharland submitted that we could "say with confidence …that the factual basis for the claim is fanciful" and that it was "clear that there is no real substance" in the appellants' factual assertions. Mr Sharland pointed to the distinction between statements of primary fact on the one hand and, on the other, inferences, assertions of law and matters of comment, which the court is not bound to accept as correct ( Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG[2007] EWCA Civ 1066 , [2007] 2 CLC 748 [11] ). Developing the headline submission I have quoted at [26] above, Mr Sharland argued that it was "simply unreal" to suggest that any of the appellants had a genuine belief that their data had gone to someone unknown let alone that it had been misused, and that the "levels of distress referred to [are] entirely improbable". He submitted, further, that the individual schedules contained clear indications of the unreal and artificial nature of the claims and "cast serious doubt" on their authenticity and credibility. He pointed to the use of certain "stock phrases" which appeared to have been "cut and pasted" into multiple individual schedules. 46. There certainly is a considerable degree of overlap in the language used to plead the claimant-specific schedules. An Annex to the respondent's skeleton argument identifies more than 15 distinctive phrases that appear and reappear verbatim on multiple occasions. By way of example, some 85 claimants allege that they were "conscious that this information could be used to fraudulently apply for documentation, such as some forms of identification". Some 82 say they were "baffled and frustrated" by the mis-addressing of their ABS. Some 53 cite concerns about what might be done by persons with "malevolent intent". Forty seven complain that "the defendant has sought to trivialise the breach". 47. In the end, though, this aspect of the respondent's argument is unconvincing. It is true that the court is not bound to accept as credible everything said by the respondent to a summary judgment application. The court may conclude that the respondent has no real prospect of establishing its factual case at trial. The paradigm case in which it may do so is where the respondent's evidence is contradicted by a contemporaneous document the authenticity is not in doubt. This is not such a case. Nor is there anything comparable. The key allegations are not matters of inference or legal argument but matters of primary fact. The appellants have asserted that upon learning of the data breach they experienced certain emotional (and in some instances physical or psychological) responses. These are facts the truth or falsity of which is within the appellants' own knowledge. 48. The point about repetition is not strong enough to justify summary judgment. The "stock phrases" are not contained in witness statements, which must be in the witness's own words or at least their own language (PD32 para 18.1). They are in statements of case served pursuant to Part 18. The natural inference is that they were drafted by the appellants' legal team, as Mr Campbell submitted was the position. In that context the sheer scale of the exercise makes repetition understandable. The words used in the schedules may not be those which the appellants would have used but that is not a breach of the rules or practice directions. And they have verified what is said as a matter of substance. It would be a strong thing for the court to reject the statements of truth without hearing from the individual concerned. I do not consider we would be justified in taking that step.”
“Out of scope (no distress)? 49. The next issue is whether some of the appellants have failed to plead a case of actionable damage. Mr Sharland submitted that on the true construction of the GDPR and DPA compensation is not recoverable for emotional responses other than distress. The claim of any appellant whose individual schedule failed to assert distress should therefore be dismissed. Mr Sharland identified 34 such appellants, being those who had pleaded that they (i) would not describe the feelings they suffered as distress; (ii) did not suffer distress; (iii) considered distress too strong a word to describe their experience, or said that they were too resilient to have suffered distress; and/or (iv) confine their pleading to "stress" as distinct from "distress". In support of this submission Mr Sharland relied on the language of s 168(1) of the DPA. 50. In my judgment this submission is too stark and formalistic. I think there is much to be said for the view that compensation is not available in respect of (to adopt Mr Knight's terminology) "all emotional responses to an infringement". I shall come back to that. But I can see no justification for confining the right to compensation in the way suggested in this part of the respondent's argument. 51. The governing provision is Article 82, which refers to "non-material damage" without limitation. Section 168(1) of the DPA tells us that this term "includes distress" but it is plain that this is an illustrative point. Section 168 does not purport to define or limit the scope of the term "non-material damage" in Article 82. Indeed, it seems clear that Parliament's aim in enacting s 168(1) was not to limit the ambit of the right to compensation but rather to confirm its breadth. Notoriously, section 13(2) of the 1998 Act , which restricted the right to compensation for distress, had to be disapplied for incompatibility with Article 23 of the parent Directive: Vidal-Hall v Google Inc[2015] EWCA Civ 311 ,[2016] QB 1003 . It would be understandable for Parliament to make clear that it was not committing the same error in the 2018 Act . The Explanatory Notes to the DPA appear to confirm this was the aim, stating (at paragraph 481) that the right conferred by Article 82 "is broadly equivalent to section 13 of the 1998 Act , with the exception that the type of damage that can be claimed is broader…". 52. In addition, it seems to me that Mr Sharland's argument depends on an unjustifiably narrow interpretation of the term "distress". In English law this term is not usually deployed to distinguish between forms or degrees of emotional harm. It is typically, and most commonly, used as an umbrella term for various forms of emotional harm (including, for instance, stress and anxiety) to distinguish harm of that kind from material damage (as in s 13 of the 1998 Act ) or from other kinds of intangible loss (such as "loss of control"). The point is reflected in paragraph [92] of Lloyd v Google where Lord Leggatt observed that "The term 'material damage' is sometimes used to describe any financial loss or physical or psychological injury, but excluding distress (or other negative emotions not amounting to a recognised psychiatric illness)". 53. In any event, our approach to the Regulation should not become bogged down in arguments about the meaning of "distress" in domestic law. We should have regard to the language of the GDPR, which is part of our law for this purpose. This includes the Recitals which state, among other things, that the kinds of "material or non-material damage" that a person may suffer as a result of a personal data breach include "limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage …" (Recital (85)). All of this is clearly at odds with Mr Sharland's submission. The Recitals also state that "The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice" (Recital (146)). We should therefore have regard, at least, to the way the CJEU approaches compensation for "non-material harm" in the context of the GDPR.”
“60. The principle enunciated in this line of decisions would seem to rule out not only the respondent's contention that "distress" is an essential ingredient of a viable claim but also the respondent's alternative submission that the appellants' claims should be dismissed as falling short of a threshold of seriousness.”
“75. These cases seem to me to provide a touchstone by which most if not all of the remaining issues in this case can be fairly resolved. I would put it this way: in principle a claimant can recover compensation for fear of the consequences of an infringement if the alleged fear is objectively well-founded but not if the fear is (for instance) purely hypothetical or speculative. 76. In all these circumstances I do not see any sufficiently weighty reason for departing on this appeal from the settled CJEU jurisprudence on the threshold of seriousness issue. It follows that there is no need to consider whether the individual claims would cross such a threshold.”
“Hypothetical or ill-founded? (Fear of third-party misuse) 77. It may be helpful to recapitulate at this stage. The CJEU decisions make clear that in principle a data subject whose rights have been infringed may claim compensation for "non-material damage" consisting of a fear that the infringement might have harmful consequences. The appellants' pleaded case on that score cannot be dismissed as incredible, out of scope, or below a threshold of seriousness. But it remains to consider whether the pleaded fears can be characterised as "well-founded" as opposed to being based on a "purely hypothetical risk" or similar, within the meaning of those terms as used by the CJEU. 78. I take the language used by the Court in VB and BL to import an objective standard or test of reasonableness. It is not necessary to decide whether a similar approach would be adopted if this were a claim in some other, purely domestic tort. 79. Mr Sharland invited us to hold that, taking the appellants' pleaded case at its highest, all of the claims based on fear of the unknown fail the test identified in BL . The essence of this submission is that we should uphold the judge's order and dismiss the appeal on the grounds that although each of the appellants has a tenable case of infringement none has pleaded a reasonable basis for claiming compensation for fear of what might happen. Mr Sharland submitted that "the fears and concerns referred to …are entirely irrational". Mr Sharland offered to take us through each schedule but pointed to some illustrative examples and some salient common features of the factual position in each case. He argued that many of the claimants came to know for certain that their ABS had never been opened and read, and that none of them ever had any good reason to fear that this would happen or that it might have happened. On this latter point Mr Sharland relied on the reasons given by Nicklin J for concluding that no inference of disclosure could be drawn. He argued that it followed that the appellants' fears could not be well-founded. Further, submitted Mr Sharland, none of the appellants had any good reason to fear that if the envelope was opened its contents would be misused in any of the ways suggested. The information was not sensitive data and was limited in scope. 80. I am not able to accept these submissions. The fact that these appellants cannot prove that their ABS were opened and read does not of itself show that the fears they entertained were not well-founded. The test of reasonableness cannot depend on hindsight. It must be applied with reference to the facts and matters that were or should have been known to the appellant at the time they experienced the stated fear. That is implicit in paragraph [85] of VB and clearly correct in principle. It is obvious that a person can hold well-founded fears about future harm even if no such harm in fact results. If an illustration were needed, the facts of George v Cannell[2024] UKSC 19 ,[2024] 3 WLR 153 provide one. 81. That said, none of these claims can succeed unless the individual appellant pleads and ultimately proves a reasonable basis for fearing (1) that their ABS had been or would be opened and read by one or more third parties and (2) that this would result in identity theft or one of the other consequences which that appellant feared might follow. And in assessing whether such a basis has been identified, aspects of the judge's reasoning are pertinent.”
“84. The generic factual allegations in the Master Particulars (and the draft Amended Master Particulars) cannot provide the necessary objective foundation for the fears alleged. All that is alleged there is the fact of infringement, the fact of the fears, and an allegation of causation. Nor can the mere fact that an appellant came to know that their ABS had been sent to the wrong address be enough to found a well-founded fear that it would be opened and read. In my judgment, individual schedules can only be sufficient if they state a specific and reasonable basis for fearing that in the particular case of the appellant in question the envelope would be opened by someone and its contents read. If that much is pleaded, an individual schedule will still fall short unless it also sets out particular circumstances amounting to a reasonable basis for fearing that the information in the ABS might be misused in one of the ways set out in the draft Amended Master Particulars. 85. Accordingly, the question raised by this aspect of the respondent's case is whether any of the appellants have set out a reasonable basis for a claim to compensation which might succeed at trial in the light of the principles I have identified above (and in particular at [75], [78] and [81]). Having reviewed a sample of the individual schedules I am confident that a decisive answer to that question can be produced in each case. An answer could, for instance, be given in respect of the first claimant and claimant no 45, whose claims I have outlined above, by scrutiny of their individual schedules. I see no reason in principle why such determinations should not be made at this stage. The appellants have had a sufficient opportunity to state their case and to provide supporting evidence.”
“99. Mr Sharland submitted that it is wrong to look at the claims, however many there may be, in bulk. The right approach is to concentrate on the individual claims and to ask, in each case, whether the claim is an abuse of process. Mr Sharland submitted that each of them is. 100. Mr Sharland is right on the point of principle. An individual claim is either abusive or it is not; it cannot amount to an abuse of process merely because it is linked with or brought in conjunction with one or more other claims, even if those other claims have features of abuse: see Municipio de Mariana [176]. But I do not think this point helps the respondent. 101. First, it brings into sharp focus the true nature of the respondent's submission. At its heart is the proposition that any stand-alone claim of the kind brought by these appellants should be dismissed without a trial even if the claimant was able to prove infringement and had sufficiently alleged a legally sustainable and factually credible case for compensation. That would be an extreme conclusion. The damages claim and the likely recovery may in many of the cases be modest. The Irish Supreme Court has said that victims of data breaches who seek compensation "solely for mental distress, upset and anxiety …cannot expect anything other than very, very modest awards": Dillon v Irish Life Assurance (above) at [56]. But some of the claims in this case encompass psychiatric injury. And the modest scale of the likely recovery cannot of itself be sufficient to justify dismissal of the claim. As Lewison LJ observed in Sullivan v Bristol Film Studios[2012] EWCA Civ 570 , [2012] EMLR 27, [29] : "The mere fact that a claim is small should not automatically result in the court refusing to hear it at all. If I am entitled to recover a debt of£50 …it would be an affront to justice if my claim were simply struck out." 102. Secondly, in deciding whether any individual claim represents an abuse of its process the court must consider all the circumstances of the case. These include the issues in the case, the procedural context in which the claim is brought, and the case management powers available to the court. As Lewison LJ went on to observe in paragraph [29] of Sullivan , the right approach to a modest claim is to see whether there is a proportionate procedure by which its merits can be investigated. Only if that is not possible should the court adopt the last resort of striking out. The judge held that but for the issues as to liability these claims would have been apt for resolution on the County Court small claims track. I agree. It is the issues of principle the case involves that have so far provided the justification for starting and retaining these claims in the High Court. That brings with it a higher level of cost recovery. But in all the circumstances I do not think the respondent can rely on the appellants' choice of venue as a ground for striking out the claims. Nor do I consider that any of the appellants can fairly be criticised for participating in a collective action of the present kind. That approach will normally achieve savings compared to the separate pursuit of hundreds of individual claims. 103. It seems to me that the real driver of the respondent's position on this point, and the real nub of their argument, is the scale of the costs which that the appellants' legal team have run up and seek to recover in the event of success, coupled with the way the litigation has been conducted. Much was made before the judge of the figures for incurred pre-action costs and estimated costs. These are certainly very large. It was also argued that the litigation had been pursued in a disproportionate way. It was said that no sensible litigant would conduct litigation on that basis given the very modest levels of compensation at stake. Similar arguments were deployed before us. These are serious points, worthy of consideration. But I do not find either of them persuasive. 104. Notoriously, litigation of limited merit can be used as a weapon of oppression and in particular (though not only) where there is an imbalance of resources. A disproportionate approach can be a feature of such cases. Litigation with such characteristics can amount to an abuse of process especially (though not only) where the defendant's free speech rights are at stake. But it is not Jameel abuse. Nor was this aspect of the respondent's case developed in any sufficient detail on this appeal. For my part, I am not convinced that the appellants' conduct of the claims has involved procedural impropriety. Nor do we have evidence or reason to think there is an inequality of arms. The respondent is, to all appearances, a substantial and well-resourced corporation. 105. When it comes to the Jameel jurisdiction, the appellants' stated objectives are legitimate. I do not think we can say that a successful outcome would not achieve those objectives to any significant extent. On the other side of the equation it is relevant to note that this is not a case that engages (at least in any meaningful way) Article 10. Mistakenly sending the ABS to the wrong address was not in substance an exercise of the respondent's right to freedom of expression. It was essentially a commercial exercise. The respondent's key interests are purely financial. The scale of the costs incurred is partly explained by the fact that the respondent has chosen to contest issues of principle. That is the respondent's right, but the resulting expense cannot fairly be weighed in the balance against the appellants, at least at this stage. If costs have been incurred that are excessive and unreasonable in all the circumstances of the case the right response is to make appropriate costs orders. As for future expense, the issue is whether this can be kept within the bounds of reasonableness and proportionality by costs and case management. For the reasons I have given, a generic or bulk answer cannot be provided. The question of whether any individual case is abusive can be added to the question I have already identified as fit for consideration by the High Court. The answer may be influenced by how many and which claims survive the applications to strike out or for summary judgment.”
“I instruct Barings Law to draft a Subject Access Request to obtain any information they deem appropriate and submit it to my Data Controller. I further authorise Barings Law to complete a soft credit check (also known as a soft inquiry) as necessary to validate my identity. This data can also be used to support my claim. I agree Barings Law can use the soft credit check to identify and to advise me of any other claims I may have. I have read the no win no fee agreement in form of authority and agree to Barings Law acting on my behalf in pursuing my claim. I agree that when I sign my name, my electronic signature will be transposed to the no win no fee agreement and form of authority and I will be bound in the same way had I signed them by hand. When I click submit I will be obligated to use the services of Barings Law unless I cancel within the 14 days cooling-off period.”
“20.. The purpose of the requirement that a party should verify the factual contents of his own pleadings was to eliminate as far as possible claims in which the party had no honest belief. The consequence of making a false statement in a document verified by a statement of truth are serious andCPR Part 32.14 provides for proceedings for contempt to be brought in such circumstances. It is therefore important at the outset to identify what Part 22 does and does not require. In relation to a pleading the claimant or other relevant party who puts the document forward as a statement of his case is required to certify that he believes the facts alleged are true. He is not required to vouch for the legal consequences which he seeks to attach to these facts. That is a matter for argument and ultimately for the decision of the Court. The purpose of Part 22 is simply to exclude factual allegations which to the knowledge of the claimant or other party are untrue or which the party putting forward the pleading to the Court is unable to say are true. 21.. In the most simple case the requirements ofCPR Part 22.1 will, if observed, exclude untruthful or fanciful claims but the notes to Part 22 also indicate that the purpose of the new rule was to discourage the pleading of cases which when settled were unsupported by evidence and which were put forward in the hope that something might turn up on disclosure or at trial. In these cases judgment had to be exercised by the pleader even under the old Rules of the Supreme Court. It was never proper for a case to be pleaded unless it had some evidence to support it. The practice of requiring a pleading to be settled and signed by Counsel was intended to operate as a confirmation to the Court that the professional rules of conduct had been observed by Counsel when deciding whether or not to advance a particular claim. In its current form paragraph 704 of the Code of Conduct states the rule in the following terms: “A barrister must not devise facts which will assist in advancing the lay client's case and must not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing: (a) any statement of fact or contention which is not supported by the lay client or by his instructions; (b) any contention which he does not consider to be properly arguable; (c) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud; (d) in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination; provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.”
“11.. Paragraph 606 of the Code of Conduct, headed “Drafting pleadings and other documents”, at the relevant time provided: “A practising barrister must not devise facts which will assist in advancing his lay client's case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing: (c) any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud; provided that nothing in this paragraph shall prevent a barrister drafting a pleading affidavit or witness statement containing specific facts matters or contentions included by the barrister subject to the lay client's confirmation as to their accuracy.” 22.. Paragraph 606(c) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it. I could not think, for example, that it would be professionally improper for counsel to plead allegations, however serious, based on the documented conclusions of a DTI inspector or a public inquiry, even though counsel had no access to the documents referred to and the findings in question were inadmissible hearsay. On this point I would accept the judgment of Wilson J.”
“54.. The professional advocate is in a privileged position. He is granted rights of audience. He enjoys certain immunities. In return he owes certain duties to the court and is bound by certain standards of professional conduct in accordance with the code of conduct of his profession. This again reflects the public interest in the proper administration of justice; the public interest, covering the litigants themselves as well, is now also expressed in Part I of the Civil Procedure Rules. (See alsoPractice Direction 16 §9.) The advocate must respect and uphold the authority of the court. He must not be a knowing party to an abuse of process or a deceit of the court. He must conduct himself with reasonable competence. He must take reasonable and practicable steps to avoid unnecessary expense or waste of the court's time. The codes of conduct of the advocate's profession spell out the detailed provisions to be derived from the general principles. These include the provisions relevant to barristers which preclude them from making allegations, whether orally or in writing, of fraud or criminal guilt unless he has a proper basis for so doing. Paragraph 606(c), which has already been quoted by my noble and learned friend, requires express instructions and reasonably credible material which as it stands establishes a prima facie case of fraud. All this fits in well with an appropriate constitutional structure for a judicial system for the administration of justice.”
“86. In formulating the claim made in this action, the claimant has not adopted the "top down" approach of claiming compensation for damage suffered by the class as a whole without reference to the entitlements of individual class members. The claim advanced is for damages calculated from the "bottom up". The way in which the claimant seeks to obviate the need for individualised assessment is by claiming damages for each class member on what is described as a "uniform per capita basis". 87. The difficulty facing this approach is that the effect of the Safari workaround was obviously not uniform across the represented class. No challenge is or could reasonably be made to the judge's findings, at[2018] EWHC 2599 (QB) ;[2019] 1 WLR 1265 , para 91, that: "… some affected individuals were 'super users' - heavy internet users. They will have been 'victims' of multiple breaches, with considerable amounts of [browser generated information] taken and used throughout the Relevant Period. Others will have engaged in very little internet activity. Different individuals will have had different kinds of information taken and used. No fewer than 17 categories of personal data are identified in the claim documents. The specified categories of data vary in their sensitivity, some of them being 'sensitive personal data' within the meaning of the section 2 of the DPA (such as sexuality, or ethnicity). … But it is not credible that all the specified categories of data were obtained by Google from each represented claimant. … The results of the acquisition and use will also have varied according to the individual, and their attitudes towards the acquisition, disclosure and use of the information in question." If liability is established, the ordinary application of the compensatory principle would therefore result in different awards of compensation to different individuals. Furthermore, the amount of any compensation recoverable by any member of the class would depend on a variety of circumstances particular to that individual. Individualised assessment of damages would therefore be required.”
“28. The court has the inherent power to prevent misuse of its procedure where the process would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v. Chief Constable of the West Midlands Police[1982] AC 529 [1982] AC 529 Lord Diplock at 536. 29. A review of the power to control abuse of process was given by Simon LJ in Michael Wilson & Partners Ltd v Sinclair[2017] 1 WLR 2646 at [39] to [48], ending with this summary: "(1) In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter's case[1982] AC 529 , Lord Hoffmann in the Arthur J S Hall case[2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood & Co[2002] 2 AC 1 . These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter's case. Both or either interest may be engaged. (2) An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus[1982] 2 Lloyd's Rep 132 ; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case. (3) To determine whether proceedings are abusive the court must engage in a close merits based analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11 .(4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within the spirit of the rules, see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case[2004] Ch 1 or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose. (5) It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris. To which one further point may be added. (6) An appeal against a decision to strike out on the grounds of abuse, described by Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd)[2014] AC 160 , para 17 as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not to the exercise of a discretion. Nevertheless, in reviewing the decision the Court of Appeal will give considerable weight to the views of the judge, see Buxton LJ in the Laing v Taylor Walton case, para 13." 30. The last point was also made in Aldi Stores Ltd v WSP Group plc[2008] 1 WLR 748 , a case best known for the guidance given by Thomas LJ that a party to complex commercial multi-party litigation who wishes to reserve the right to pursue other proceedings must make that clear to the court, so that the court can express a view about the proper use of its resources and identify whether a way could be found to determine the reserved issues in the current proceedings. 31. The circumstances in which abuse of process can arise are very varied and are not limited to fixed categories: Hunter at 536. Examples can be found in: vexatious proceedings amounting to harassment; attempts to re-litigate issues that were raised in previous proceedings; attempts to litigate issues that should have been raised in previous proceedings (Henderson v Henderson (1843) 3 Hare 100); collateral attacks upon earlier decisions (attacks made in new proceedings rather than by way of appeal in the earlier proceedings); pointless and wasteful litigation (Jameel). 32. Nor is there any hard and fast rule to determine whether abuse is found or not; the process is not dogmatic, formulaic or mechanical, but requires the court to weigh the overall balance of justice: Johnson at 31, 32 and 34. Indeed, the overriding objective of the procedural rules is to enable the court to deal with cases justly, including when it exercises the power underCPR 3.4 . Where there is abuse, the court has a duty, not a discretion, to prevent it: Hunter at 536. 33. Jameel confirms that the court has the power to strike out a claim as abusive where it discloses no real or substantial tort and where, colloquially, the game would not be worth the candle. This calls for an assessment of the value (in the widest sense) to the claimant of what is properly at stake and of the likely cost (in the widest sense) of the litigation. The jurisdiction is useful where a claim is obviously pointless or wasteful: Vidal-Hall v Google Inc.[2016] QB 1003 . Such cases are to be distinguished from valid claims of small value or cases where vindication is of importance to the claimant and the court should only conclude that continued litigation would be abusive where a way cannot be found to adjudicate the claim proportionately: Ames v Spamhaus Project Ltd.[2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan v Bristol Film Studios Ltd. [2012] EMLR 27 [29] to [32] per Lewison LJ. 34. For completeness, I would note that following the handing down of our draft judgments in the present case, two very recent decisions of this court concerning abuse of process were coincidentally published: Allsop v Banner Jones[2021] EWCA Civ 7 and Pricewaterhousecoopers LLP v BTI 2014 LLC[2021] EWCA Civ 9 . We received written submissions from the parties about these decisions, which arose from very different circumstances to the present case. 35. In summary, the power to strike out for abuse of process is a flexible power unconfined by narrow rules. It exists to uphold the private interest in finality of litigation and the public interest in the proper administration of justice, and can be deployed for either or both purposes. It is a serious thing to strike out a claim and the power must be used with care with a view to achieving substantial justice in a case where the court considers that its processes are being misused. It will be a rare case where the re-litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, but where the court finds such a situation abusive, it must act.”
“54. The fundamental question to be considered in this case is whether, on the information available to them, the claimants had any business pleading the nexus allegation in the way that they did as a primary fact rather than as an inference (together with setting out the basis for the inference). This question incorporates whether and when it is proper to sign a statement of truth attesting to the claimants' belief that the contents of the Particulars of Claim are true when, as submitted by the defendants, the signatory to the statement of truth, here Mr Day, did not have the necessary information or foundation for such belief but merely a basis for asserting that the Particulars of Claim, and in particular the nexus allegation, might be true. 55. The answer is, in my judgment, to be found in the passage from The Brillante Virtuoso[2019] 2 Lloyd's Rep 485 which is set out at paragraph 37 above. At paragraph 534, Teare J queried whether the 'statement of truth' undermined Mance J's rejection of the submission that a party must be taken to know whatever he could properly plead but was persuaded that it did not and he reiterated that the best guide to the meaning of knowledge in this context remains Mance J's threefold test: (1) the matters said to be known must be true; (2) there must be a firm belief in their truth; and (3) there must be sufficient justification for that belief in terms of experience, information or reasoning. We are not concerned at this stage with (1) because that depends upon the eventual findings of the court at trial: frequently, matters are pleaded which turn out to be untrue because of the court's findings. For present purposes, I must assume that what is pleaded in the Particulars of Claim is true, and that includes the nexus or foundational allegation pleaded at paragraphs 49 and 50 of the Particulars of Claim. In those circumstances, the issue is whether the claimants have a firm belief in the truth of the nexus allegation and whether there is sufficient justification for that belief. On the basis of the material and information before me, I consider that it is appropriate to accept Mr Day's assertions to this effect. No bad faith is alleged against Mr Day, and rightly so. Although the statistical reasoning process which has led Mr Day to believe in the truth of the nexus allegation may be erroneous, I am in no position to decide that and make a judgment in that regard. Nor would it be appropriate for me to do so on an application of this nature. I am assured by Mr Hermer that (without waiving privilege) the Claimants are, as he put it, "absolutely satisfied" that the statistical reasoning that they have adopted is based on "a mathematically and statistically … valid formula" and that is more than sufficient for present purposes. 56. As Mr Hermer submitted, for the court to find an abuse of process pursuant to subparagraph (b), the case needs to be at the extreme end of the spectrum amounting to a significant or substantial misuse of the process, in the words of Warby J in the Duchess of Sussex case (see paragraph 48(i) above). An appropriate statement of the law is to be found in the judgment of Coulson LJ in Cable v Liverpool Victoria Insurance[2020] 4 WLR 110 : "5.1 Abuse of Process 42 Although we were referred to a large number of authorities on abuse of process, the relevant principles can be summarised shortly. The classic summary of abuse of process can be found in the speech of Lord Diplock in Hunter v Chief Constable of West Midlands Police[1982] AC 529 [1982] AC 529 536C: "My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, it would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute amongst right-thinking people. The circumstances in which abuse of process can arise are very varied … It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limited to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power." This passage has been cited many times since, most recently by the Supreme Court in Summers v Fairclough Homes Ltd[2012] UKSC 26 ;[2012] 1 WLR 2004 , a case where the claimant had greatly exaggerated his long term disabilities. 43 A working definition of abuse of process, adopted by both leading counsel in this appeal, was set out by Lord Bingham, then Lord Chief Justice, in Attorney General v Barker[2000] 1 FLR 759 . At para 19 he defined an abuse of the process as "a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process". This test shows, in my judgment, the kind of case it needs to be for the court to strike it out as an abuse of process, and the present case is a long way from being of that nature. Whilst I accept that a case which is, in the words of Mann J "wholly speculative" I do not consider the nexus allegation to be wholly speculative: on the contrary, there is a clear pathway to be seen for the claimants' tobacco leaves to end up in the hands of the defendants and that is sufficient to take the case out of the "wholly speculative" category. 57. Both defendants submitted that where the foundation for an allegation, here the nexus allegation, is an inference, it should be pleaded as such and the claimants should plead the factual basis for the inference which they seek the court to draw. In my judgment, this is misconceived: although an inference may form the basis for the belief that the allegation is true to enable the allegation to be pleaded and the statement of truth to be signed, it does not follow that the matter should be pleaded as an inference. The claimants have chosen to plead the nexus allegation as a matter of primary fact, and that is what they will have to prove, in due course. That will be, I have no doubt, on the basis of documentary evidence which has yet to be obtained or disclosed. There is no requirement, though, for the claimants to have possession of that documentary evidence at this stage in order to be able to plead the nexus allegation in the way that they have. As Mr Hermer submitted at the outset of his argument, and as I accept, what is required in order to plead a matter and sign a statement of truth at the start of proceedings, and what is required to prove an allegation at trial are separate and distinct things and an elision of these two fundamentally different concepts lies at the basis of the misconception which has led to the making of these applications.”
“The Statements of Truth 34. Before entering on the full consideration of this case I should deal with one troubling aspect of the procedural position. A number of issues arose as to apparent inconsistencies between the Defendants' pleaded case and the evidence of the Individual Defendants. The Defences advanced for the First to Fourth Defendants featured a statement of truth signed only by Mr Marson. Thus, Mr Rukhadze and Mr Alexeev had not ever signed a statement of truth in relation to the pleading served on their behalf. 35. Mr Rukhadze plainly did not see that this was a matter of moment, and said this was a matter for his lawyers. Mr Alexeev took the matter fairly lightly, although acknowledging that the signing of a statement of truth was a serious matter. Neither of them appeared to comprehend exactly what a statement of truth was, or to have been taken through the pleading in detail by Mr Marson, ensuring that they approved all relevant factual allegations before the statement of truth was signed. The impression which I received was that Mr Marson had provided a copy for the other Defendants to review and had simply taken their OK to sign it: Mr Marson suggested that " I called or emailed him and said, you know, do I have your authority to sign?". That was broadly consistent with Mr Rukhadze's view that Mr Marson "assumed probably that I had read it and was okay with it". The evidence of course did not cover, and I do not know, what dialogue Mr Rukhadze and Mr Alexeev had with their legal team in this regard. 36. This illustrates precisely why the rules as to the signing of a statement of truth were introduced. There was a concern under the previous regime for signing of pleadings that it made it too easy for parties to put forward a case which they knew to be untrue or unsupported by evidence, or plead aspirationally, hoping that something would turn up in the course of proceedings: Clarke v Marlborough Fine Art (London) Ltd and another[2002] 1 WLR 1731 at [20-21]. The importance of the requirement of the statement of truth is underpinned by the fact that it is given a whole rule, Rule 22 in CPR, and by the fact that the sanction for breach can be contempt of court. 37. The bottom line is that the process which was adopted here was defective. It is important that where there are multiple defendants; each defendant reviews and provides either his own statement of truth or his authority to his legal representative to make that statement for him. If composite defences are served, care should be taken to ensure that provision is made for each defendant to review and verify each element of the case as it pertains to him. It is troubling that this question, of ensuring that each individual defendant has signed or approved the appropriate person to sign a statement of truth following a proper consideration of the document, appears to have been be missed; not least because it indicates that a sense of the very real importance of statements of truth may have been lost in the years which have passed since they were introduced. 38. What was most troubling however, was Mr Marson's evidence on this subject. Mr Marson may not have been a litigation lawyer by training, but he was trained at one of the most prestigious firms in London. Further his role for Hunnewell after the events with which this case is concerned involved his being in day to day charge for Hunnewell of substantial litigation. Yet his evidence was surprising on this point in two respects. 39. The first is that he gave it as his view that there was no issue with this procedure - he said that he was entitled to sign statements of truth on behalf of the other Defendants as "someone given authorisation". This is not correct. WhatCPR 22 says is: (6) The statement of truth must be signed by - (a) in the case of a statement of case, …- (i) the party or litigation friend; or (ii) the legal representative on behalf of the party or litigation friend; …" 40. Mr Marson was, as regards Mr Rukhadze and Mr Alexeev, neither their litigation friend nor their legal representative. He plainly regarded this as an irritating formality - he had not checked the position once the issue became live in the proceedings and he appeared completely untroubled by the point even when it was put to him squarely in cross examination. 41. The second point is that it was quite apparent that he did not seem to grasp, even as he gave his evidence, that it was a matter of real moment that the essential requirement ofCPR 22 , that the litigant have checked and verified that the factual case which is being advanced on his behalf is true had not been complied with. My impression was that he would not see any reason to change his approach to statements of truth in future litigation. 42. I note these points not because they have any impact on the issues which I have to determine, but because the facts that Mr Marson, despite his training, could give such evidence and (putting Mr Marson aside) that this situation had been allowed to come about indicates that a clear reminder as to the importance of Statements of Truth and a careful observance of the requirements pertaining to them may not go amiss.”