AB v Ministry of Justice [2014] EWHC 1847 (QB)

[2014] EWHC 1847 (QB)IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONDate 11 June 2014
Before
MR JUSTICE JEREMY BAKER
Between
A BClaimantMinistry of JusticeDefendant
Paul Epstein QC for ClaimantSimon Hilton (instructed by The Treasury Solicitor) for DefendantHearing Hearing dates: 25-26 February 2014
Judgment
[1]The claimant is a prominent member of the solicitors’ profession who has been in practice for many years. The firm of solicitors of which he is the managing partner has dealt with a number of high profile cases involving the interface between the individual and various Government departments and public bodies. In that capacity the claimant has become well versed in making enquiries and requests of such bodies, inter alia, under the Data Protection Act 1998 (“DPA 1998”) and the Freedom of Information Act 2000 (“FoIA 2000”). Moreover it has resulted in the claimant having a considerable amount of correspondence and face to face meetings with Ministers and public officials.[2]Tragically and in the midst of dealing with such matters, the claimant’s wife died. The claimant sought to speak to the Coroner who would be responsible for the inquest into his wife’s death. The reason for seeking to speak to the Coroner was to communicate the claimant’s desire not to have a full post mortem examination conducted on his wife’s body. Unfortunately the claimant received a response that the Coroner was unavailable to talk to him. Subsequently the Coroner met with the claimant and it was agreed that a full post mortem examination would not be required and the inquest was concluded. However it later came to the attention of the claimant that around the time when the Coroner had been unavailable to speak to him, the Coroner had been in contact with an official from the Home Office concerning his wife’s death. That official being Robert Clifford, who was the head of the Coroners’ Section of that department.[3]On 22.10.06 the claimant wrote to the Department for Constitutional Affairs (now the Ministry of Justice, “the defendant”) making a “Subject Access Request” (“the 1st request”) relating to his personal data, stating that he was, “…….particularly anxious to have the recorded information in the following areas:(a) The material relating to the edict regarding my communications with the LCD/DCA [As you know this was inspired by Alan Cogbill and notwithstanding the death of my wife and was resurrected and, apparently, endorsed by the current Permanent Secretary (March 2006)] including the dissemination of it and any reference to it.(b) The information recorded about my requests for information (both FOI and Subject Access) and other activities, including in respect of the Legal Services Bill, since the death of my wife …….” (a) The material relating to the edict regarding my communications with the LCD/DCA [As you know this was inspired by Alan Cogbill and notwithstanding the death of my wife and was resurrected and, apparently, endorsed by the current Permanent Secretary (March 2006)] including the dissemination of it and any reference to it. (b) The information recorded about my requests for information (both FOI and Subject Access) and other activities, including in respect of the Legal Services Bill, since the death of my wife …….”[4]On 19.12.06 the claimant issued proceedings against the defendant in the County Court (“the 1st claim”). Although the Particulars of Claim lacked detail, it alleged a breach of the defendant’s duty under s.7 of the DPA 1998 and sought a declaration of that breach, an order compelling compliance and compensation for damage and distress under s.13.[5]On 2.1.07 the Treasury Solicitor, acting on behalf of the defendant, filed a Defence to this claim in which it pointed out that the claimant had over the years made a number of previous requests to the defendant under both the DPA 1998 and the FoIA 2000, but understood that this claim related to the most recent of those requests, namely the 1st request. It admitted that it had not complied with this request within the prescribed period, but expected to comply with it in due course. It denied that the claimant had suffered any damage or distress.[6]On 12.1.07 the defendant wrote to the claimant asserting that it had now complied with the 1st request.[7]At a hearing before the District Judge on 2.3.07 a declaration was made that the defendant had not complied with the claimant’s subject access request by 1.12.06 as required by s.7(8) of the DPA 1998 and the claim was adjourned to a case management conference.[8]At a further hearing before the District Judge on 12.7.07 the claimant was ordered to provide particulars of his assertion that the defendant had still failed to comply with the 1st request.[9]Those particulars were provided by the claimant on 31.10.07 and asserted wide ranging failures in the provision of personal data by the defendant.[10]On 8.11.07 the District Judge made a further order by which he required the defendant to give reasons for its omission of two pages from a bundle of previously disclosed material and redactions from another bundle of previously disclosed material. He also ordered the claimant to particularise his claim for compensation.[11]On 29.11.07 the defendant explained that the omission of the two pages was due to a clerical error and provided copies of the same, and sought to justify the redactions on the basis that some of the undisclosed material was not the claimant’s personal data and other redactions involved the identity of individuals who had not consented to its disclosure and it was not reasonable to make such disclosure, under s.7(4) and (5) of the DPA 1998.[12]On 18.12.07 the claimant provided particulars of his claim for compensation, asserting that his damage comprised, inter alia, his loss of professional time in seeking compliance with the 1st request and that the distress arose from the manner in which the defendant processed his personal data.[13]On the same day that the claimant had issued the 1st claim, namely 19.12.06, the claimant made a request (“the 2nd request”) to the manager at the Court, under the DPA 1998 in relation to, “…all information held by Her Majesty’s Court Service about me including in my capacity as a partner in the firm of …… 2. Without prejudice to the generality of the foregoing I require the information held regarding:(a) material held by the court following my late wife’s death ….;(b) material concerning me in connection with the …. litigation(c) communications with the judiciary including with regard to complaints, requests for information and redress including with the Presiding Judges in May 2003 [see (a) above](d) compensation and complaints to the court including the material held by the ….. Regional Director’s office, the Customer Service Unit and with the Department of Constitutional Affairs.” (a) material held by the court following my late wife’s death ….; (b) material concerning me in connection with the …. litigation (c) communications with the judiciary including with regard to complaints, requests for information and redress including with the Presiding Judges in May 2003 [see (a) above] (d) compensation and complaints to the court including the material held by the ….. Regional Director’s office, the Customer Service Unit and with the Department of Constitutional Affairs.”[14]On the 21.4.07 the claimant made “Combined FoI and Subject Access Requests” (“the 3rd request”) to the defendant in the following terms, “1. It is sometime since my original subject access request – which is now the subject of litigation. 2. I enclose cheque for £10 made payable to the DCA in respect of a further request. 3. I will be writing to you further about it as it is to be combined with a FoI request.”[15]On 12.9.07 the claimant made a further request (“the 4th request”) to the defendant stating, “….please send me a copy of all the information you hold about me.” This request being repeated in correspondence dated 1.10.07 and 30.10.07.[16]On 1.11.07 the claimant issued further proceedings against the defendant in the County Court (“the 2nd claim”). The Particulars of Claim alleged breaches of the defendant’s duty under s.7 of the DPA 1998 in relation to the 2nd, 3rd and 4th requests, and sought a declaration of those breaches, an order compelling compliance and, inter alia, destruction of the data pursuant to s.14. This claim was stated to have been brought on behalf of the claimant personally and for the benefit of the estates of his wife and a third party.[17]On 18.12.07 the Treasury Solicitor acting on behalf of the defendant filed a Defence to the 2nd claim. In it the defendant did not admit that it had received the 4th request but admitted that it had received the letter repeating that request dated 1.10.07. In relation to all three of these requests, it denied that they comprised valid s.7 DPA 1998 requests, on the basis that due to the number and extent of previous such requests, the defendant had notified the claimant that all future requests should be made through a single named official, namely Ian Johnson, and none of these requests had been made through this individual. However the defendant conceded that if any of these requests were valid s.7 requests, it was admitted that it had not complied with such request within the prescribed period. Moreover it would now provide the requested material on the basis that it “…is prepared voluntarily to treat…” the requests as valid s.7 requests.[18]It would appear that between January – June 2008 both the 1st and 2nd claims were stayed to allow for mediation between the parties. It was following that mediation that on 30.3.09 the defendant provided a small bundle of material to the claimant, which he received on 2.4.09. This material comprised some 10 documents dated between 8.4.03 – 9.10.03 relating to events following the death of the claimant’s wife. In these proceedings these documents have sometimes been referred to collectively as the “sensitive material.” They were sent under cover of a letter from Ian Johnson which stated that there was other such material which was being withheld by the defendant on the basis of legal professional privilege and that redactions had been made to the disclosed material, namely the names of individuals below the level of the Senior Civil Service with whom the claimant had not had direct contact.[19]On 3.4.09 the claimant wrote to the defendant requesting it to admit that prior to 31.3.09 it had not complied with the Subject Access Request.[20]The defendant replied on 2.6.09 stating that the material relating to the claimant’s late wife had not been disclosed as a result of any of the previous requests, but as a result of an agreement between the parties during the course of the mediation.[21]On 29.6.09 the District Judge ordered that the 1st and 2nd claims be heard together.[22]On 10.7.09 the claimant made a further request (“the 5th request”) to the defendant.[23]This was dealt with by the defendant writing to the claimant’s solicitors on 21.10.09 and stating that it had conducted a data search for the period between 30.10.08 – 17.9.09 as a result of which it enclosed material which included some of the documentation previously provided on 30.3.09, together with other material relating to the death of the claimant’s wife.[24]On 23.11.09 Kenneth Parker J. granted permission to the defendant to amend its defence in relation to the 2nd claim, such that the defendant admitted that the 2nd request was a valid one, but withdrew its previous concession that it would treat the 3rd and 4th requests as valid.[25]On 10.12.09 the claimant made a further request (“the 6th request”) to the defendant.[26]This was dealt with by the defendant in a letter to the claimant dated 2.6.10 in which further material was enclosed. The defendant asserted that it had now complied with both the 4th and 6th requests. None of the enclosed material related to the death of the claimant’s wife.[27]On 9.2.12 the Circuit Judge granted permission to the defendant to re-amend its defence in relation to the 2nd claim, to the extent that the defendant no longer sought to challenge the validity of the 4th request. In the light of that concession he made a declaration that the defendant had breached s.7 (8) of the DPA 1998 in respect of the 4th request.[28]As a result of this concession and declaration the claimant replied to the re-amended defence on 10.5.13 to the effect that the determination of the validity of the 3rd request was no longer material.[29]On 8.1.14 a consent order was made by the court to the effect that the forthcoming trial would only be concerned with the issue of compliance with the requests concerning the material relating to the death of the claimant’s wife. Consequently the claimant was ordered to file a bundle of the material which had already been disclosed by the defendant relating to this subject (“the disclosed material”), and the defendant was ordered to file a bundle of the material relating to this subject which had been withheld from the claimant (“the withheld material”).[30]A pre-trial review took place before me on 20.1.14 in which it was ordered that the issues to be dealt with at the forthcoming trial would be as follows:
“1. In relation to data concerning the death of the claimant’s wife, sent by the defendant at the end of March 2009 and received by the claimant in April: a. Was such data the claimant’s personal data (within the meaning ascribed to that term in Section 1 (1) of the Data Protection Act 1998 (“the Act”); and b. Was such data properly disclosable by the defendant to the claimant pursuant to any Subject Access Request made by the claimant which is now the subject of these proceedings (i.e. [the 1st and/or 2nd claim]) – and if so, which request? c. If the answer to both sub-paragraphs (a) and (b) above is yes, did the defendant in accordance with Section 7 (8) disclose the data to the claimant promptly, or in any event before the end of the prescribed period? d. If the answer to sub-paragraph (c) above is no, what damage and/or distress has the claimant sustained as a result of the Defendant’s non-compliance with Section 7, and what compensation, if any, should be awarded to him? 2. In relation to data concerning the death of the claimant’s wife which the defendant withheld from the claimant in March 2009 (which data is further referred to in this order at paragraph 3 below): a. Was such data the claimant’s personal data (within the meaning ascribed to that term in Section 1 (1) of the Data Protection Act 1998 (“the Act”)? b. Should the defendant have disclosed that data to the claimant pursuant to any Subject Access Request the subject of these proceedings, (and, if so, which request), or was the defendant entitled to withhold the data? c. If it is found that the defendant should have disclosed that data to the claimant, then: i. Which data, specifically, ought to have been so disclosed; and ii. What damage and/or distress has the claimant sustained by reason of the non-disclosure, and what compensation, if any, should be awarded to him?” a. Was such data the claimant’s personal data (within the meaning ascribed to that term in Section 1 (1) of the Data Protection Act 1998 (“the Act”); and b. Was such data properly disclosable by the defendant to the claimant pursuant to any Subject Access Request made by the claimant which is now the subject of these proceedings (i.e. [the 1st and/or 2nd claim]) – and if so, which request? c. If the answer to both sub-paragraphs (a) and (b) above is yes, did the defendant in accordance with Section 7 (8) disclose the data to the claimant promptly, or in any event before the end of the prescribed period? d. If the answer to sub-paragraph (c) above is no, what damage and/or distress has the claimant sustained as a result of the Defendant’s non-compliance with Section 7, and what compensation, if any, should be awarded to him? a. Was such data the claimant’s personal data (within the meaning ascribed to that term in Section 1 (1) of the Data Protection Act 1998 (“the Act”)? b. Should the defendant have disclosed that data to the claimant pursuant to any Subject Access Request the subject of these proceedings, (and, if so, which request), or was the defendant entitled to withhold the data? c. If it is found that the defendant should have disclosed that data to the claimant, then: i. Which data, specifically, ought to have been so disclosed; and ii. What damage and/or distress has the claimant sustained by reason of the non-disclosure, and what compensation, if any, should be awarded to him?”
[31]Although at one stage it was going to be necessary to consider the procedure to be adopted to deal with the withheld material, prior to the trial the defendant agreed to disclose this material to the claimant.[32]In preparation for the trial I read witness statements both from the claimant, dated 13.2.14, and from Mark Farrow, formerly with the Department for Constitutional Affairs, dated 29.4.09 and 13.2.14; their evidence having been supplemented by cross-examination during the course of the trial. I have also had the benefit of both written and oral submissions by Mr Paul Epstein QC on behalf of the claimant and Mr Simon Hilton, of counsel, on behalf of the defendant.

Statutory framework

[33]The following provisions of the DPA 1998 are of relevance in this case:
“S. 1(1) In this Act, unless the context otherwise requires— ……………………. ‘data’ means information which— (a) is being processed by means of equipment operating automatically in response to instructions given for that purpose, (b) is recorded with the intention that it should be processed by means of such equipment, (c) is recorded as part of a relevant filing system or with the intention that it should form part of a relevant filing system, (d) does not fall within paragraph (a), (b) or (c) but forms part of an accessible record as defined by section 68; …………………………… ‘personal data’ means data which relate to a living individual who can be identified— (a) from those data, or (b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller, and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual; …………………….. S. 7(1) Subject to the following provisions of this section and to [sections 8, 9 and 9A], an individual is entitled— (a) to be informed by any data controller whether personal data of which that individual is the data subject are being processed by or on behalf of that data controller, (b) if that is the case, to be given by the data controller a description of— (i) the personal data of which that individual is the data subject, (ii) the purposes for which they are being or are to be processed, and (iii) the recipients or classes of recipients to whom they are or may be disclosed, (c) to have communicated to him in an intelligible form— (i) the information constituting any personal data of which that individual is the data subject, and (ii) any information available to the data controller as to the source of those data, and (d) where the processing by automatic means of personal data of which that individual is the data subject for the purpose of evaluating matters relating to him such as, for example, his performance at work, his creditworthiness, his reliability or his conduct, has constituted or is likely to constitute the sole basis for any decision significantly affecting him, to be informed by the data controller of the logic involved in that decision-taking. S. 7(2) A data controller is not obliged to supply any information under subsection (1) unless he has received— (a) a request in writing, and (b) except in prescribed cases, such fee (not exceeding the prescribed maximum) as he may require. …………………….. S. 7(8) Subject to subsection (4), a data controller shall comply with a request under this section promptly and in any event before the end of the prescribed period beginning with the relevant day. ……………………………. S. 7(10) In this section— …………………… ‘prescribed’ means prescribed by the [Secretary of State] by regulations; ‘the prescribed maximum’ means such amount as may be prescribed; ‘the prescribed period’ means forty days or such other period as may be prescribed; ‘the relevant day’, in relation to a request under this section, means the day on which the data controller receives the request or, if later, the first day on which the data controller has both the required fee and the information referred to in subsection (3). ……………………… S. 13(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage. S. 13(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if— (a) the individual also suffers damage by reason of the contravention, or (b) the contravention relates to the processing of personal data for the special purposes. Schedule 7 Paragraph 10. Personal data are exempt from the subject information provisions if the data consist of information in respect of which a claim to legal professional privilege [or, in Scotland, to confidentiality of communications] could be maintained in legal proceedings.”
S. 7(10) In this section— Schedule 7

Evidential framework

[34]It is apparent both from the pleadings and the evidence in this case, that although initially the concerns raised by the claimant with the defendant under the DPA 1998 had been of a widespread nature, since the provision of the disclosed material, those concerns have become increasingly focused upon the material emanating from the death of his wife. Indeed the data concerning that event is now the sole focus of these proceedings. It is in that context that the issues which were required to be dealt with at the trial have had to be considered.[35]I now turn to deal with those issues. Albeit I intend to deal with the issue of compensation which may be awardable to the claimant after having dealt with the prior issues in relation to both the disclosed and withheld material.

The disclosed material

[36]It is clear both from the most recent witness statement of Mark Farrow and the defendant’s written outline submissions that it is now conceded that almost all of the disclosed material comprises the claimant’s personal data. Indeed having regard to the definition of “personal data” under s.1(1) of the DPA 1998, even without such a concession I would have found it to be so.[37]The question then arises as to which if any of the claimant’s requests ought to have given rise to disclosure of this material by the defendant. On behalf of the defendant, although it is conceded that such material ought to have been disclosed as a result of the 4th request, it is denied that it ought to have been provided as a result of any of the previous requests. On behalf of the claimant although it is not expressly conceded that those previous requests were insufficient to have required disclosure of such material, the claimant’s written skeleton argument focuses upon the 4th request as the one which ought to have given rise to disclosure of this material. This being a reflection of the evidence of the claimant at paragraph 30 of his witness statement, where he states that, “…it was the response to this SAR that was of vital importance.” In the light of this the oral submissions on behalf of the claimant have also been based upon the contention that it was the 4th request which ought to have given rise to disclosure of this material.[38]I consider that the implicit concession made on behalf of the claimant is a realistic one, in that although on one reading of the 1st request it might include any data about the claimant’s activities since the death of his wife, its real focus is firstly upon the defendant’s requirement that in view of the extent and range of the claimant’s requests for data, all such requests should be submitted through a named individual, and secondly upon data about the claimant’s previous requests for information, including those in respect of the Legal Services Bill. The 2nd request is expressly made in relation to other types of data held by “Her Majesty’s Court Service.” Moreover, the 3rd request, being contingent upon the provision of further particulars, is not of itself a valid request under s.7(2)(a) of the DPA 1998. However, the 4th request is sufficiently wide to have encompassed the disclosed material, and given the defendant’s concession, it ought to have given rise to disclosure of this material.[39]Although I am satisfied that the claimant made the 4th request on 12.9.07, I am not satisfied that this was received by the defendant. However, as it is acknowledged by the defendant that it received the claimant’s letter dated 1.10.07, which repeated the earlier request, on 9.10.07, I am satisfied that this was the relevant day for the calculation of the prescribed period within which the defendant was required to provide the disclosed material to the claimant. In these circumstances it is clear that the defendant did not provide the disclosed material promptly or in any event before the end of this period in accordance with s.7(8) of the DPA 1998.

The withheld material

[40]This material is contained within Tab D of the defendant’s supplementary bundle, albeit an issue has arisen with a further document which is contained within Tab E of that bundle. There is no issue that to the extent if any that the extract from counsel’s opinion at pages 3 – 7 of Tab D contains the claimant’s personal data, it is exempt from disclosure on the grounds of legal professional privilege, pursuant to paragraph 10 of schedule 7 to the DPA 1998; likewise the advice at page 9, which is repeated at page 11 of Tab D. However an issue has arisen in relation to the remaining document at page 8 of Tab D, which is repeated but with an additional manuscript endorsement at page 10.[41]The defendant’s submission in relation to both copies of this document is that whilst some of the document may comprise the claimant’s personal data, namely paragraphs 2, 3, 4, 6 and 7 of the letter dated 10.9.03, they are exempt from disclosure on the grounds of legal professional privilege; in that the document is a request by Robert Clifford on behalf of the Home Office for legal advice from Vicky Baum, a senior lawyer within that department. On the other hand the claimant’s submission is that neither copy of that document is exempt by reason of legal privilege. In relation to the original version of this document it is argued that there is no evidence that Robert Clifford was authorised to seek such advice on behalf of the Home Office. Secondly, and in the alternative, in relation to the annotated version, it is argued that the document ceased to be protected from disclosure because it had been provided to Judith Bernstein, a non-lawyer within that Department, for her advice.[42]In support of the claimant’s submissions, it is pointed out that the Court of Appeal in Three Rivers District Council v Governor and Company of the Bank of England (No.5) [2003] QB 1556 sought to place a limit on who could be regarded as the client for the purposes of obtaining legal advice and the extent of the documentation which could be regarded as protected by legal privilege. It is submitted that there is no evidence that Robert Clifford was authorised to seek legal advice on behalf of the Department and that CPR 31.19 places the onus on the party seeking to claim legal privilege.[43]Although of course this decision is authoritative, to my mind when dealing with the first of these matters, the Court of Appeal was dealing with a markedly different set of circumstances to that of the present case. In that case, the Bank had created a separate entity, namely the BIU which was specifically responsible for seeking the legal advice in question; such that it was the BIU rather than the Governor who was able to claim legal privilege. In contrast in the present case, there is no evidence of any such separate entity. Moreover, Robert Clifford was the head of the Coroners’ Section of the Department, such that in the absence of any evidential challenge during the course of the hearing that he lacked such authority, of which there was none, I consider that in that capacity it is implicit that he had authority to seek legal advice of the nature and extent that he did from the Department’s in-house lawyer. Therefore I consider that the defendant was entitled to claim legal professional privilege in relation to the original version of this document.[44]However, the evidence in relation to the annotated version of this document is far less supportive of the defendant’s position. Clearly if legal advice is sought and received, then simply because the documentation involved in this process is shown to a third party for the purpose of making decisions based upon it, legal privilege will not cease to exist. However, I am far from satisfied that this is what took place in relation to the annotated version of this document. Rather it appears from the contents of the annotation itself, “…. – What did Vicky think?” that a copy of the original document was supplied to Judith Bernstein for her independent opinion either prior to or separate from any legal advice from Vicky Baum. In those circumstances I am not satisfied that the defendant has established that legal professional privilege attached to this version of the document. Therefore as it is acknowledged that it contained the claimant’s personal data, it ought to have been disclosed to the claimant in response to the 4th request.[45]An issue has also arisen in relation to a letter sent on behalf of the Coroner to Robert Clifford dated 10.4.03, which is at page 3 of Tab E in the defendant’s supplementary bundle. It would appear from a subsequent letter sent on behalf of the defendant dated 12.2.14, that this was a document which the defendant both intended and believed it had provided to the claimant as part of the disclosed material; such that it had not included it within the withheld material. However when it was appreciated that the document had not been disclosed hitherto, it was subsequently provided to the claimant under cover of the more recent letter on behalf of the defendant; albeit with the caveat that, “……on the face of it the letter does not contain your personal data……..”[46]Initially at trial the defendant maintained that as the identity of the claimant could not be ascertained from the document itself, it did not contain the claimant’s personal data and therefore had not been required to be disclosed in response to the 4th request. However, during the course of submissions, the defendant conceded that bearing in mind the extended definition of “personal data” in s.1(1) of the DPA 1998 and the fact that it was likely that the document would have enclosed with it, not only the letter from the claimant’s father to the Coroner’s Officer, dated 8.4.03, but also the latter’s letter in reply dated 9.4.03, the document did comprise the claimant’s personal data, as his identity could be ascertained from those letters.[47]However, following the conclusion of the hearing I received written submissions, concerning this issue from both parties. The defendant now submits that despite the extended definition of “personal data” in the DPA 1998 and the inclusion of those letters, the document does not comprise the claimant’s personal data. Whilst no point is taken on behalf of the claimant about the original concession, the claimant maintains that, taken together with the enclosed letters, the document does contain the claimant’s personal data and therefore ought to have been disclosed to the claimant in response to the 4th request.[48]Undoubtedly the claimant cannot be identified from the document alone. On the other hand it is properly conceded that both of the letters which are likely to have been enclosed with this document contain the claimant’s personal data, as they contain data which on the face of those letters clearly relates to the claimant. However, the defendant argues that having regard to the definition of “personal data” within the DPA 1998, it is necessary for the claimant to be able to be identified from a combination of the information contained within the letters and the contents of the document. In support of this submission, if it is required, the defendant makes reference to the speeches of Lord Hope and Lord Mance at paragraphs 24 and 96/97 of Common Services Agency v Scottish Information Commissioner [2008] UKHL 47.[49]It seems to me however, that a prior issue arises, namely whether the document contains any data which, even if the claimant’s identity was able to be ascertained from the document alone or in conjunction with the other letters comprises the claimant’s personal data. This requires a consideration firstly of what is meant by the term “data” within the DPA 1998. This is defined within s.1(1) of the DPA 1998, and essentially comprises “recorded information”. Secondly, it requires consideration of whether the content of the document includes data which “relate to a living individual”. The defendant submits that it doesn’t, in that the document is simply a conduit by which the Coroner sought to provide the letters to the Home Office. It points out that separately under s7(1)(b)(iii) of the DPA 1998 an individual will be entitled to be informed of the identity of the recipients of an individual’s personal data, and therefore the identity of the recipient is not in itself the personal data of the that individual. On the other hand the claimant points out that the definition of “personal data” in the DPA 1998 emanates from the Data Protection Directive (Directive 95/46/EC), and should be interpreted generously in accordance with the Directive. In this regard he refers to Jessemey v Rowstock Limited & another [2014] EWCA Civ 185 and invites me to consider other possible aids to interpretation in the form of the Commission’s Commentaries on Article 2, the Article 29 Working Party Opinion and the Information Commissioner’s Office guidance. The essential themes of which are not only that the definition of personal data should be construed generously in favour of disclosure to the individual, but that information is likely to relate to an individual if it may be capable of influencing someone’s treatment or perception of that individual.[50]I do not consider this to be a straightforward issue. Regardless of the aids to interpretation to which the claimant refers, there may well be good policy reasons for adopting a generous interpretation of personal data under the DPA 1998, in that it is likely to resolve speculation on the part of individuals concerning the content and use of information which is held about them by public bodies. Whether in reality such an approach requires any more than reference to the provisions of the DPA 1998 itself is open to question, in that the definition within the Act appears to include any recorded information relating to an identifiable living individual. However, even given the most generous interpretation of these provisions construed in the light of the matters to which the claimant refers, I find it difficult to accept that the content of this particular document contains any information relating to the claimant. Undoubtedly an individual ought to be entitled to know to whom any information which concerns him is given, and this is provided for by s.7(1)(b)(iii) of the DPA 1998. Moreover, it may be that a differently worded communication would in itself contain information relating to an individual, in that, for example, it contained information capable of influencing someone’s treatment or perception of that individual over and above the personal data contained in the enclosed letters. However, to my mind that cannot reasonably be said of the contents of this document, which is in wholly neutral terms, and is indeed merely a conduit for the provision of information contained in the letters which it enclosed which certainly did contain the claimant’s personal data. Therefore although, if it had not already been disclosed voluntarily by the defendant, I might have been tempted to consider that this document required disclosure to the claimant in order to avoid needless speculation by him (a matter which may well have influenced the defendant’s original decision to provide this document along with the disclosed material), ultimately I do not consider that this was a document which contains any of the claimant’s personal data; such that I am not satisfied that it was required to be disclosed by the defendant in response to any of the claimant’s requests.

Compensation

[51]As I have already observed the context in which the issues in this case have been required to be considered is that initially and up until the provision of the disclosed material in March/April 2009, the claimant’s concerns under the DPA 1998 had been of a widespread nature. That is not to say that the claimant had no concerns relating to material emanating from his wife’s death prior to that time. In this regard it is of note that in the particulars he provided to the court in relation to the 1st claim on 31.10.07, he mentioned both the Coroner and Robert Clifford.[52]However, not only was this material not the focus of the claimant’s attention at this time, but even when he received the disclosed material, although he was concerned as to the delay in its provision to him, it is apparent from the claimant’s witness statement that it was the content and the potential harm resulting from the retention and possible dissemination of this material, which caused him the most acute distress, together with the manner of its disclosure. Moreover this is to be set against the background of the wholly understandable distress which the very fact of his wife’s death had undoubtedly caused to the claimant. Coupled with the manner in which he viewed the Coroner had dealt with her inquest.[53]In these circumstances the claimant has been keen to achieve the destruction of the disclosed and withheld material, which the defendant has undertaken to ensure following the conclusion of these proceedings.[54]In relation to the issue of compensation, the defendant makes a number of submissions. Firstly that compensation is only available to the claimant under s.13 of the DPA 1998, and is limited to compensation arising out of contravention of the Act, which in this case is delay. Secondly, that compensation for distress is only available if an individual has also suffered damage and that, as there is no evidence of any damage suffered by the claimant, he is not entitled to any compensation for distress. The claimant acknowledges that compensation is only payable under s.13 of the DPA 1998. However he submits that there is evidence of damage having been suffered by him as a result of the delay in this case; such that compensation is also payable for his distress caused by this delay. Alternatively, even in the absence of damage, compensation is payable for distress by reason of the definition of “damage” within Article 23 of the Data Protection Directive and the direct applicability of the European Charter of Human Rights, under which data protection is a fundamental EU right.[55]As I have found, the defendant has contravened the provisions of the DPA 1998 in relation to the provision of the disclosed material, and one item of the withheld material. The contravention in relation to the former material being a delay in its provision for a period of something less than 17 months, and in relation to the latter material a delay in its provision for a period of over 6 years. The first question that arises is whether as a result of either or both of these delays the claimant has suffered any damage. The claimant provided particulars of his alleged damage in these proceedings in a document dated 18.12.07. Although this was in relation to the 1st claim, quite properly no point has been taken as to its applicability to the other claim and in particular the consequences of the defendant’s failure to comply with the 4th request. Essentially the claimant is a professional man who, it is apparent from his witness statement, has expended a considerable amount of time and expense in the pursuit of the disclosure of his and others’ data from various Government Departments and other public bodies, including the disclosed and withheld material from the defendant. Having said that, the claimant has not sought to quantify his time and expense, nor has he allocated it between the various requests on his own and others’ behalves. In these circumstances, although I am satisfied that he has suffered damage in accordance with s.13(1) of the DPA 1998, I consider that this is a case in which an award of nominal damages is appropriate under this head, which will be in the conventional sum of £1.00.[56]I am equally satisfied on the evidence before me that the claimant has suffered some distress as a result of the delays in the provision of both the disclosed and withheld material in this case. However I have not found the assessment of any award of damages for this distress an easy task, as a result of the other matters which have caused more far reaching distress to be suffered by the claimant, which is not able to be the subject of compensation in these proceedings. These other matters of course include the death of the claimant’s wife, the perceived mishandling of the inquest, and the contents of some of the disclosed material, together with its manner of provision to the claimant. Furthermore it does seem to me to be of relevance that a more focused approach by the claimant at an earlier stage may have achieved a more directed and swifter disclosure of at least some of this material. In that it appears to have been following a more focused enquiry in relation to this material, during the course of mediation, that the disclosed material was provided to the claimant; albeit after a delay of some months, and of course in the absence of the item of withheld material which ought also to have been disclosed to him.[57]I have no medical evidence before me, over and above some items within the correspondence exhibited to the claimant’s witness statement, about his state of health and certainly none which deals separately with the contribution which this aspect of delay may have had upon his level of distress. I am also conscious of the claimant’s evidence that the main aims of these proceedings has not only been to establish that the defendant has failed to deal his requests in a timely manner, but to seek the destruction of the disclosed and withheld material; aims which he has now achieved. Having said that it is apparent that from a relatively early stage the claimant was aware that there had been some communication between the Coroner and Robert Clifford concerning the inquest into his wife’s death, and as a result of the 4th request was actively seeking any of his personal data concerning it. Moreover, I am conscious that at least since the provision of the disclosed material, the claimant has been particularly concerned lest there be any further material of a distressing nature held by the defendant. Albeit, as it turns out, paragraph 3 of the item from the withheld material which ought to have been provided at an earlier time, appears to have exhibited appropriate concern on the part of the defendant towards the claimant. Therefore doing the best I am able to on the evidence before me I consider that any award of compensation for distress caused as a result of the relevant delays in this case, should be in the sum of £2,250.00. I would add that bearing in mind the contents of the material at page 8 of Tab D and page 3 of Tab E of the defendant’s supplementary bundle, I would not have been minded to order any enhanced sum by way of compensation for distress, even had I considered that the defendant had been under an obligation to have disclosed these documents to the claimant as a result of the 4th request.[58]The question then arises as to whether this latter sum is awardable in this case as a result of the limiting effect of s.13(2)(a) of the DPA 1998, which requires that an individual must also have suffered “damage” by reason of the contravention of the Act prior to being entitled to an award of compensation for distress. In this regard the word “damage” in this sub-section is not qualified in any way, such that to my mind provided that there has, as in this case, been some relevant loss, then an individual who has also suffered relevant distress is entitled to an award of compensation in respect of it. This appears to be in line with the relevant European Directive and indeed gains support from Halliday v Creation Consumer Finance Limited [2013] EWCA Civ 333. Although the issue was conceded in that case, Arden LJ. was content to accept that an award of nominal damages under s.13(1) entitled a claimant to compensation for relevant distress under s.13(2). Moreover, Lloyd LJ. was content to accept that a finding of a contravention of the Act with no identifiable loss, would entitle a claimant to compensation for relevant distress under s.13(2).

Privacy

[59]At an earlier stage of these proceedings an order was made that subject to further directions, “In so far as matters in regards to [the claimant’s] wife, these should be made in private…..” At the pre-trial review, and in view of the limited focus of the proceedings, I queried the appropriateness of the whole of the subsequent hearing to be in private and invited further submissions on the point. At the subsequent trial it was apparent that besides the witnesses and legal representatives, no other persons had attended. In these circumstances I directed that until and unless any third party attended the trial, it was to be conducted in public. No such third party attended and therefore that issue did not arise for further consideration. Moreover, and in any event, no details concerning the contents of the disclosed documents was required to be mentioned during the course of the hearing, as those documents had already been read by everyone present at the trial.[60]However, I am aware and understand the concerns of the claimant that he would not wish any of the disclosed or withheld material to be in the public arena, or any details relating to that material to be disclosed. Indeed, as I have already noted the defendant has undertaken to destroy all of this material following the conclusion of these proceedings. I am of course aware that in normal circumstances the benefits of open justice to society will outweigh the individual’s concern for privacy, and that necessity is required to be shown in order to overrule the general principle. In the present case I have read with care the evidence of the potential harm that may be caused to the claimant’s family and am of the opinion that its level is such that in this case it is necessary to protect their Article 8 rights by affording them a suitable level privacy in this case.[61]I have throughout this judgement specifically refrained from setting out verbatim or indeed providing detailed descriptions of the disclosed or withheld material. Moreover, the claimant’s name has been anonymised and shall remain so. Therefore, I do not consider that any part of it will require to be made the subject of a non-disclosure order. Instead I will order that the defendant alone retains copies of both the disclosed and withheld material, including the letter dated 10.4.03, until the conclusion of these proceedings, which will mean the later of the following events: the period of 21 days following the handing down of the judgement; the conclusion of any appeal in respect of this judgement which is commenced within that 21 day period. Thereafter, and subject to further order, the defendant is to destroy all of the disclosed and withheld material, in accordance with its undertaking to the court.[62]Furthermore, I make an order pursuant to CPR r. 5. 4C that in the event that any application is made by any third party to view any of the evidence, pleadings, orders or ancillary judgments in this case, that not only should any application be made on notice to the claimant, but that all details whereby the claimant might be identified from those documents be removed, together with any details disclosing the circumstances surrounding the death of his late wife.[63]In the event that the parties are unable to reach agreement upon the appropriate order for costs in this case, I will order that written submissions be provided to me on this point within 21 days of the handing down of this judgment.

Cited in 4 later judgments