Elliott v Lloyds TSB Bank Plc & Anor [2012] EW Misc 7 (CC) (24 April 2012) [2012] EW Misc 7 (CC)

EWMISC
Elliott v Lloyds TSB Bank Plc & Anor [2012] EW Misc 7 (CC) (24 April 2012)
[2012] EW Misc 7 (CC) · 2010-08-02
1. This Claim arises out of data subject access requests (“SAR”) made by Mr Elliott to the Defendants, Lloyds TSB Bank plc (“Lloyds TSB”) and Lloyds Development Capital Ltd (“LDC”), on 2 August 2010 pursuant to s.7(1) of the Data Protection Act 1998 (“the 1998 Act”). Mr Elliott alleges that the Defendants had failed to comply with his SARs and originally sought an order from the Court that they comply pursuant to s.7(9) of the 1998 Act.2. After these proceedings were commenced further information has been supplied by the Defendants. In the result Mr Elliott now only disputes compliance with s.7(1) in one limited respect, namely whether the Bank is required to disclose to him his personal data (if any) from the records of six senior managers within the Bank. Mr Elliott seeks an order pursuant to s.7(9) the 1998 Act that Lloyds TSB Corporate Markets (“Lloyds CM”) search for and disclose any such personal data. Following a CMC before DJ Saffmann on 30 January 2012 the remaining issues that fall to be determined by the Court – two substantive and one in relation to costs – are:1. Whether, if there was any breach of s.7 of the 1998 Act, Mr Elliott would be entitled to any relief, in particular because his SAR, as a whole, was an abuse of the subject access procedure as being pursued for a collateral purpose.2. If Mr Elliott would, in principle, be entitled to relief, whether Lloyds CM is required (having regard in particular to s.8(2)(a) of the 1998 Act and the searches already undertaken by Lloyds CM) to conduct searches for personal data in relation to the six individuals; and3. Costs of the Claim.3. It is Lloyds TSB and LDC’s case that the real or dominant purpose of Mr Elliott in pursuing the application was as a fishing expedition to further his claims against Lloyds CM. As such the application is an abuse of the process of the Court and any relief should be refused. Mr Elliott does not accept this. He says that he had become suspicious that some of his personal data had been used improperly and had been given to people who had no right to it. In those circumstances these proceedings were taken to ensure that his personal data had not been misused.4. Lloyds TSB has carried out extensive searches and disclosed substantial personal data to Mr Elliott. It is their case that it would be disproportionate for the Court to order it to conduct searches in respect of the six individuals. Mr Elliott contends that the searches should be ordered either on the basis that the question of proportionality is irrelevant or that it would not be disproportionate to order the searches.5. Each side has made detailed submissions on the question of costs. In summary Mr Elliott contends that the application has been successful in that very substantial documentation has been disclosed by Lloyds TSB and more limited documentation by LDC after the issue of proceedings. He therefore contends that Lloyds TSB and LDC should pay his costs. Lloyds TSB and LDC submit that Mr Elliott should pay their costs. First they contend that the application was an abuse. Second whilst they accept that some disclosure has been provided they maintain that much of it was not personal data within the meaning of the 1998 Act. They contend that the Court should not order the further searches requested by Mr Elliott and that in those circumstances that they are the substantial winners of these proceedings.2 The Law6. Most of the law was uncontroversial in the light of guidance on the 1998 Act contained in three authorities – the decision of the Court of Appeal in Durant v FSA [2003] EWCA 1746, the decision of Laddie J in Smith v Lloyds TSB Bank Plc [2005] EWHC 246 (Ch) and the decision of HHJ Hickinbottom (as he then was) sitting as a judge of the High Court in Ezsias v Welsh Ministers [2007] All ER (D) 65. However there are two areas of law which, or arguably which, are not covered by these authorities.7. The first relates to the effect of mixed motives on the part of Mr Elliott in making the requests for information under the 1998 Act. The second relates to the extent of any search which the Defendants were obliged to make in order to comply with their duties under the Act. The Defendants contend that they are not obliged to make a search which involves “disproportionate effort”. Mr Cornwell relies on a passage in Ezsias which appears to support this argument. Mr Pickworth does not accept this. He accepts that the Defendants are not obliged to supply information involving disproportionate effort but he contends that the supply of information does not include the search. He relies on the published guidance given by the Information Commissioner in a detailed commentary on the decision in Ezsias .2.1 The 1998 Act8. Most of the relevant statutory provisions are set out in the judgment of Auld LJ in Durant . In summary:1. The 1998 Act was enacted, in part, to give effect to Directive 95/46/EC of 24 th October 1995 On The Protection Of Individuals With Regard To The Processing Of Personal Data And On The Free Movement Of Such Data (“the 1995 Directive”). The primary objective of the 1995 Directive is to protect individuals’ fundamental rights, notably the right to privacy and accuracy of their personal data held by others (“data controllers”) in computerised form or similarly organised manual filing systems (Recitals (1), (2), (3), (10) and (25)), whilst at the same time facilitating the free movement of such data between Member States of the European Union. [See paragraphs 3 and 4 of the judgment].2. Section 7(4)-(6) of the 1998 Act provides an individual with a right of access to “personal data”, entitling him to know whether a data controller is processing any of his personal data and, if so, to be told what it is, its source, why it is being processed and to whom the data are or may be disclosed. He is not entitled to information about his personal data which necessarily, that is, notwithstanding possible redaction, involves disclosure of information relating to another individual, either as a subject or the source of the information, without that other’s consent or unless it would be reasonable in all the circumstances for him to have it without that consent. [ see paragraph 7 ]3. The core of a data subject’s entitlement to access to his personal data is to be found in sections 7(1) and 8(2), which, so far as material provide:

“7(1) …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.”.
“8(2) The obligation imposed by section 7(1)(c)(i) must be complied with by supplying the data subject with a copy of the information in permanent form unless- (a) the supply of such a copy is not possible or would involve disproportionate effort, or (b) the data subject agrees otherwise.”
4. In paragraphs 26 and 27 Auld LJ gave further guidance on the purpose behind section 7:26. The intention of the Directive, faithfully reproduced in the Act, is to enable an individual to obtain from a data controller’s filing system, whether computerised or manual, his personal data, that is, information about himself. It is not an entitlement to be provided with original or copy documents as such, but, as section 7(1)(c)(i) and 8(2) provide, with information constituting personal data in intelligible and permanent form. This may be in documentary form prepared for the purpose and/or where it is convenient in the form of copies of original documents redacted if necessary to remove matters that do not constitute personal data (and/or to protect the interests of other individuals under section 7(4) and (5) of the Act).27. In conformity with the 1981 Convention and the Directive, the purpose of section 7, in entitling an individual to have access to information in the form of his “personal data” is to enable him to check whether the data controller’s processing of it unlawfully infringes his privacy and, if so, to take such steps as the Act provides, for example in sections 10 to 14, to protect it. It is not an automatic key to any information, readily accessible or not, of matters in which he may be named or involved. Nor is to assist him, for example, to obtain discovery of documents that may assist him in litigation or complaints against third parties. As a matter of practicality and given the focus of the Act on ready accessibility of the information - whether from a computerised or comparably sophisticated non-computerised system - it is likely in most cases that only information that names or directly refers to him will qualify. In this respect, a narrow interpretation of “personal data” goes hand in hand with a narrow meaning of “a relevant filing system”, and for the same reasons (see paragraphs 46-51 below). But ready accessibility, though important, is not the starting point.5. In paragraph 28 of the judgment Auld LJ gave guidance on the meaning of personal data:
“… not all information retrieved from a computer search against an individual’s name or unique identifier is personal data within the Act. Mere mention of the data subject in a document held by a data controller does not necessarily amount to his personal data. Whether it does so in any particular instance depends on where it falls in a continuum of relevance or proximity to the data subject as distinct, say, from transactions or matters in which he may have been involved to a greater or lesser degree. It seems to me that there are two notions that may be of assistance. The first is whether the information is biographical in a significant sense, that is, going beyond the recording of the putative data subject’s involvement in a matter or an event that has no personal connotations, a life event in respect of which his privacy could not be said to be compromised. The second is one of focus. The information should have the putative data subject as its focus rather than some other person with whom he may have been involved or some transaction or event in which he may have figured or have had an interest, for example, as in this case, an investigation into some other person’s or body’s conduct that he may have instigated. In short, it is information that affects his privacy, whether in his personal or family life, business or professional capacity.”
9. Further guidance is contained in paragraphs 79 and 80 of the judgment of Buxton LJ:79. …… The notions suggested by my Lord in his para. 28 will, with respect, provide a clear guide in borderline cases. A recent example of such personal data is information about the occupation, hobbies and in one case medical condition of named, and therefore identifiable, individuals, such as the Court of Justice addressed in Case C-101/01, Lindqvist, 6 November 2003.80. But the information sought by Mr. Durant was by no stretch of the imagination a borderline case. On the ordinary meaning of the expression, relating to him, Mr. Durant’s letters of complaint to the FSA, and the FSA’s investigation of that complaint, did not relate to Mr. Durant, but to his complaint. The 1998 Act would only be engaged if, in the course of investigating the complaint, the FSA expressed an opinion about Mr. Durant personally, as opposed to an opinion about his complaint; a contingency for which, nonetheless, the draftsman of the Act thought it necessary to make specific provision. And on the purposive construction of the expression, as investigated in para. 78 above, access to that material could not possibly be necessary for or even relevant to any protection by Mr. Durant of his privacy. The excessive nature of his demands is perhaps best illustrated by the claim mentioned by my Lord in his para. 62, that Mr. Durant should be told the identity of all those at the FSA who had handled his complaint. In the formal FSA complaints process in which Mr. Durant engaged before bringing the present proceedings (see para. 10 above) that information may or may not have been relevant, though there is no indication that Mr. Durant or those who may have been advising him then sought it. It has nothing whatsoever to do with Mr. Durant’s privacy, and proceedings under the 1998 Act cannot be used now, or at all, to extract it.6. In Smith Laddie J had to consider this guidance in connection with a loan to a limited company with which an individual was closely associated. In paragraph 31 of his judgment he summarised the effect of the guidance and continued in paragraph 32:Applying those principles here, it is clear that the documents held by Lloyds and the information contained within them are not personal to Mr Smith in the relevant sense. The files that do exist all relate to the loans to DEL. Although it is true that Mr Smith is mentioned in them, according to Lloyds that is only because he acted for and on behalf of the company and was closely associated with it. The documents are not biographical about Mr Smith to a significant extent. They deal with what loan was made to DEL and on what terms. Indeed, if one stands back and looks at what Mr Smith is trying to get by means of these proceedings, it is not documents about him but it is documents which deal with the terms of an alleged oral agreement under which Lloyds were to make £500,000 available to DEL.7. This application is made under section 7(9) which provides:
“If a court is satisfied on the application of any person who has made a request under the foregoing provisions of this section that the data controller in question has failed to comply with the request in contravention of those provisions, the court may order him to comply with the request.”
10. In paragraph 74 of Durant Auld LJ explained that the discretion under section 7(9) was general and untrammelled.2.2 Mixed Motives11. It is plain from the foregoing that if the real purpose of the application is to obtain documents or information which may assist Mr Elliott in a claim against a third party such would be an improper purpose; thus there is no obligation to comply with the request and the Court would refuse to make an order under section 7(9). More difficult is the question of mixed motives on the part of Mr Elliott.12. Some guidance on this was given by Lewison J (as he then was) in paragraphs 119 – 122 of the judgment in Iesini v Westrip Holdings [2011] 1 BCLC 498. That case concerned an application to bring a derivative action under section 261 of the Companies Act 2006 and thus the case is not on all fours with this case. However one of the matters that Lewison J had to consider was whether the applicants had an ulterior motive in bringing the proceedings. He said this119 The idea that an action which is being pursued for a collateral purpose is abusive is not a new one in our law. Such an action is liable to be struck out as an abuse of process. In Goldsmith v Sperrings Ltd [1977] 1 WLR 478 Bridge LJ (with whom Scarman LJ agreed) considered the meaning of a “collateral advantage” in this context. He said:
“The phrase manifestly cannot embrace every advantage sought or obtained by a litigant which it is beyond the court's power to grant him. Actions are settled quite properly every day on terms which a court could not itself impose upon an unwilling defendant. An apology in libel, an agreement to adhere to a contract of which the court could not order specific performance, an agreement after obstruction of an existing right of way to grant an alternative right of way over the defendant's land -- these are a few obvious examples of such proper settlements. In my judgment, one can certainly go so far as to say that when a litigant sues to redress a grievance no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for his ulterior purpose, he would not have commenced proceedings at all, that is an abuse of process. These two cases are plain; but there is, I think, a difficult area in between. What if a litigant with a genuine cause of action, which he would wish to pursue in any event, can be shown also to have an ulterior purpose in view as a desired by-product of the litigation? Can he on that ground be debarred from proceeding? I very much doubt it.”
121 In my judgment if the claimant brings a derivative claim for the benefit of the company, he will not be disqualified from doing so if there are other benefits which he will derive from the claim. In Nurcombe Lawton LJ contrasted an action for the benefit of the company on the one hand, and an action brought for some other purpose on the other. Likewise in Barrett Peter Gibson LJ drew the same contrast. Neither of them was considering a case in which a claim was brought partly for the benefit of the company, but partly for other reasons as well. In my judgment in such a case the considerations discussed by Bridge LJ in Goldsmith come into play. In the present case it seems to me that Mr Iesini was entitled to form the view that unless the derivative claim was brought, Westrip would be left with no assets at all. Thus in my judgment the dominant purpose of the action was to benefit Westrip. It cannot, in my judgment, be said that but for the collateral purpose, the claim would not have been brought at all. The claim is, in my judgment, brought in good faith.13. I propose to follow the guidance in those paragraphs. If it is found that Mr Elliott has mixed motives in bringing the application the application will not be abuse of process unless it can be shown that, but for the collateral purpose the application would not have been brought at all.2.3 A proportionate search.14. In Ezsias Judge Hickinbottom was concerned with a request under section 7(1) of the 1998 Act against Welsh Ministers for disclosure of personal data which related to his complaints of and treatment by a hospital trust. It was the Defendants’ case that all disclosable data had been disclosed and one of the issues concerned the extent of the search carried out by them. Judge Hickinbottom dealt with the issue in a passage starting at paragraph 93 and 94:93. Under the 1998 Act, upon receipt of a request for data, a data controller must take reasonable and proportionate steps to identify and disclose the data he is bound to disclose.94. Specifically, before the introduction of the extended disclosure obligation upon public authorities from January 2005 (see Paragraph 13 above), the fee for obtaining access to documents was £10: and that was matter Auld LJ took into account when considering the appropriateness of the data holder's search etc in Durant (see especially Paragraphs 45 and following). Even after January 2005, a public authority is not obliged to comply with a Section 7(1) access request in relation to unstructured personal data "if the authority estimates that the cost of complying with the request so far as relating to those data would exceed "the appropriate limit", in this case £600 (see Paragraph 15 above). The National Assembly have not sought to rely upon that exemption, but it gives some context for reasonableness in the context of search etc.15. In paragraph 95 of the judgment Judge Hickinbottom set out section 8(2) of the 1998 Act and went on to set out the then current guidance of the Information Commissioner on the meaning of “disproportionate effect”:"'Disproportionate effort' is not defined in the Act. Accordingly, it will be a question of fact in each case as to whether the supply of information in permanent form amounts to a disproportionate effort. Matters to be taken into account by the Commissioner may be the cost of provision of the information, the length of time it may take to provide the information, how difficult or otherwise it may be for the data controller to provide the information and also the size of the organisation of which the request has been made. Such matters will always be balanced against the effect on the data subject." (Data Protection Act 1998: Legal Guidance, Paragraph 4.1).16. Mr Pickworth drew my attention to the guidance now given by the Information Commissioner in the light of the decision of Judge Hickinbottom. In the light of Mr Pickworth’s submissions it is necessary to quote from that guidance in a little detail:
“The judgment in the 2007 High Court case of Ezsias v Welsh Ministers is sometimes used to suggest that the term ‘ disproportionate effort ’ appearing in section 8(2) DPA may be used more widely than as outlined above to release data controllers from their obligations in relation to subject access requests. Such a wide interpretation of the case overlooks the case-specific aspects of the judgment.…
In the Ezsias case the Judge commented that, under the DPA “upon receipt of a request for data, a data controller must take reasonable and proportionate steps to identify and disclose the data he is bound to disclose”. It is this reference to ‘proportionate steps’ that appears to have given rise to the confusion. The comments of the judge in the Ezsias case are not, as has been suggested, an indication that the ‘ disproportionate effort ’ test in section 8(2) DPA applies to the identification and/or location of personal data. The statement was made in the context of a judgment in which the judge had formally noted that the data controller had already made extensive efforts to locate all data that should be provided in response to the subject access request. …The judge reviewed the data controller’s actions and concluded that “the steps taken by the [data controller] in response to Mr Ezsias’s request for access to data – the search, identification and consequent disclosure of information … were eminently reasonable and proportionate”. Again, this statement is not a direct comment on the application of section 8(2) DPA as some have suggested. It simply refers to the efforts expended by the data controller in addressing Mr Ezsias’s subject access request in general. The judge disagreed with Mr Ezsias that the data controller should have carried out more extensive searches for his personal data.

Conclusions from the Ezsias case

The Ezsias case, rather than suggesting that data controllers need make only minimal attempts to locate personal data, emphasises that data controllers are obliged to make extensive efforts to locate personal data relevant to a subject access request but indicates that, having made such efforts, a data controller is not obliged to leave no stone unturned. …Given that the ‘ disproportionate effort ’ qualification in section 8(2) applies only to the ‘supply of’, and not the ‘search for’, the information, subsection 8(2) may be of only limited assistance to data controllers seeking to refuse a subject access request for such data. Usually, once the relevant emails have been found, the cost of supplying a copy of the personal data contained within them (the task to which the proportionality test applies) is unlikely to be prohibitive. A data controller cannot therefore refuse to comply with a subject access request on the basis that it would involve disproportionate effort simply because it would be costly and time-consuming to locate the requested personal data held in archived emails.”17. Mr Pickworth relied on the final paragraph which I have cited in support of his submission that the data controller had to continue the search even if it was disproportionate. I would however make the following comments on the guidance.1. The views of the Information Commissioner are and only purport to be guidance. They are not binding on me. The judgment of Judge Hickinbottom is, as Mr Cornwell pointed out, a judgment of the High Court and is accordingly binding on me sitting in the Leeds County Court. I must accordingly follow it.2. When read as a whole it does not seem to me that the guidance suggests that a data controller is required to carry out a disproportionate search upon receipt of a request for data under the 1998 Act. The whole of the first part of the guidance analyses the judgment and explains why Judge Hickinbottom held that the search which was carried out was both reasonable and proportionate. There is nothing in the guidance which suggests that he was wrong to do so.3. Like Mr Cornwell I do have some difficulty in following the final paragraph that I have cited from the guidance. As Mr Cornwell pointed out neither section 7 nor section 8 refers to a search at all. The obligations are to “supply information “(sections 7(2), and 8(2)) and to “be informed” (section 7(1)). No doubt the data controller will have to carry out searches in order to comply with the obligation but to my mind the obligation to carry out searches is part and parcel of the obligation to supply the information or to inform the individual. In those circumstances it would seem to me that the reference to disproportionate effort in section 8(2) includes a reference to the search.18. In those circumstances I agree with Mr Cornwell’s submissions that Lloyds TSB and LDC are only obliged to supply such personal data to Mr Elliott as is found after a reasonable and proportionate search.3 The facts3.1 Background19. Mr Elliott is a businessman who founded Premier Motorauctions Limited (“PMA”) and Premier Motorauctions (Leeds) Limited (“PMAL”), which were in the business of conducting car auctions. Mr Elliott was a director and the majority shareholder in both PMA and PMAL, owning 97% of the shares in each.20. Lloyds TSB Corporate Markets (“Lloyds CM”) is a trading name used by Lloyds TSB. It is not a separate legal entity and is not a separate data controller for the purposes of the 1998 Act. SARs addressed to all divisions of the Bank are dealt with centrally by the Bank’s DSAR Team. In the course of his evidence Mr Elliott made it clear that he was not aware that Lloyds CM was not a separate data controller for the purpose of the 1998 Act. Lloyds CM lent money to PMA and PMAL from around 1997.21. LDC is a wholly owned subsidiary of the Bank, although it conducts its business as a separate legal entity and is independently regulated by the Financial Services Authority. It is also a separate data controller for the purposes of the 1998 Act. It is in the business of providing equity finance to small and medium sized enterprises in the United Kingdom. In or around 2007 and 2008 LDC was considering whether it would be interested in investing in the Companies. The interest resulted in an exchange of e-mails between Grant Thornton (who were acting on behalf of those involved in a proposed management buyout of the Company) and LDC.22. On 22 December 2008 PMA and PMAL were placed into Administration following an application made by their directors. Two partners of Price Waterhouse Coopers (“PwC”) were appointed as Administrators. On the same date substantially all of the business and assets of the Companies were sold to SMA (Leeds) Ltd by the Administrators.23. It is not in dispute that Mr Elliott is aggrieved both against Lloyds TSB and PwC and is considering proceedings against them.3.2 The request for pre-action disclosure24. On 26 February 2009 Mr Elliott sent a letter to the Regional Director of Lloyds TSB what he alleged were serious allegations against Lloyds TSB.25. On 30 March 2009 Mr Elliott’s then solicitors, Starr & Partners, wrote lengthy pre-action letters to both Lloyds TSB and PwC making allegations on Mr Elliott’s behalf and on behalf of PMA and PMAL of, inter alia , Lloyds TSB(1) acting as a shadow director of the Companies,(2) wrongfully interfering in negotiations for the sale of the Companies, and(3) breaching its alleged duty of care in relation to negotiations to sell the Companies. On 11 th June 2009 Lloyds TSB’s solicitors - CMS Cameron McKenna – wrote a long letter refuting the allegations26. On 8 May 2009 Starr & Partners wrote to CMS Cameron McKenna – seeking pre-action disclosure of 27 categories documents which came into existence in 2008. On 12 June 2009 CMS Cameron McKenna wrote refusing to provide the disclosure on the grounds that the request did not comply with CPR 31.16. The letter concluded by making the point that they did not believe that Mr Elliott had any prospect in succeeding in his claim and invited him to reconsider his position.3.3 The First Subject Access Request for Information.27. On 23 July 2009 Mr Elliott sent to Lloyds plc a request for “all the information you hold on myself from 1 June 2008”. Mr Cornwell drew my attention to the fact that the information requested was not limited to personal data and that the period covered the same period as the request for pre-action disclosure.28. In paragraph 6 of his first witness statement Mr Elliott explained why he made the request:
“The reason that I brought these proceedings was that I had reason to believe that the Defendants had used my personal data in ways which were not authorised. In particular Grant Thornton, a firm of accountants, were acting for various parties in connection with the takeover of my business in 2008. I had no connection with them and had never used them myself yet it was suggested to me by my advisors that Grant Thornton must have had information about me relating to my personal financial position constituting personal data, and I suspected the only source of such data would be Lloyds TSB. I was and remain determined to discover whether my privacy had been unlawfully infringed.”
29. In any event Mr Elliott accepts that in response to his request Lloyds TSB provided him with what he described as “a large amount of innocuous information about my personal banking arrangements”. He described himself as “reassured to some extent”.3.4 Events between the First and Second Request30. In October 2009 Mr Elliott provided information to Private Eye which enabled it to print an article commenting on what it alleged to be the predatory behaviour of PwC in relation to PMA and PMAL.31. On 17 May 2010 Mr Elliott wrote to all creditors of PMA and PMAL canvassing support for an independent investigation into the behaviour of PwC and Lloyds TSB.32. On the same day Mr Pickworth wrote to CMS Cameron McKenna answering some of the points that had been made in the letter of 11 June 2009.33. On 4 June 2010 Mr Elliott wrote to the Chief Executive of Lloyds TSB setting out his grievance against Lloyds and PwC. He described himself as “determined to expose the conflict of interest that faced PwC and the truth in relation to the events that led to his business being taken from him”.34. On 23 July 2010 Mr Elliott wrote a letter to the Directors of Lloyds TSB. In the letter he makes allegations against the integrity of Lloyds and accuses it of instructing its lawyers to stonewall and refuse to answer questions that he had put. CMS Cameron McKenna replied on behalf of the Directors on 30 July 2010.3.5 The Second Subject Access Request35. On 2 August 2010 Mr Elliott submitted three further requests under the Act. One was addressed to Lloyds TSB in Leeds, one was addressed to Lloyds CM in London and the third to LDC.36. The requests were in identical form and asked for far more information than had been requested the previous year. In cross – examination Mr Elliott explained that these requests were based on a precedent he had found on a web site.37. In any event the requests sought copies of “all information and data held by you over the last 6 years associated with me personally and also in connection with my companies [PMA] and [PMAL]”. It then gave a list of the data and information included in the request and set out a number of other matters included for the avoidance of doubt.38. In cross-examination Mr Elliott was asked the reason for this second request. He said that he was still suspicious that his personal data had been misused. He had learned more over the past year and was anxious to do a catch all and get information from all the divisions of Lloyds TSB.39. Mr Cornwell pointed out that the requests were not limited to “personal data” and went well beyond what the courts have held to be “personal data” under the 1998 Act. Mr Elliott made the point that the request specifically referred to data “associated with me personally” and described his association with the 1998 Act as a learning curve.40. He was not aware at that time that there is only one data controller for Lloyds TSB and Lloyds CM. LDC is independent and is a different data controller.41. On the same day Mr Elliott wrote a further letter to CMS Cameron McKenna in reply to their letter of 30 July. The letter did not threaten legal action but concluded by asserting that the Bank’s position was that the Directors resolutely support all conduct by its employees towards Mr Elliott, his companies and creditors.3.6 The response to the Second Subject Access RequestLloyds TSB and Lloyds CM.42. On 7 August 2010 the DSAR team wrote to Mr Elliott thanking him for the request. There was no suggestion that the request was improper. The letter pointed out that only information relating to the personal accounts would be provided and that the information would be provided by 14 September 2010. On 1 September 2010 Mr Elliott wrote back making it clear that he understood that companies were not included but pointed that the requests were limited to data held personally in connection with his companies43. On 6 September 2010 the DSAR team sent some information to Mr Elliott. It comprised some 212 pages. In the covering letter Mr Elliott was told that further information would be provided as soon as possible. This further information was provided in the form of an encrypted CD on 24 September 2010.44. Meanwhile on 14 September 2010 another member of the DSAR team wrote to Mr Elliott stating that personal information in relation to PMA and PMAL files would be extracted and issued by 16 October 2010.45. On 16 September 2010 Mr Elliott wrote a letter to Lloyds TSB making it clear that he wanted everything that had any reference to him including computerised and manually held data. He also wrote to Lloyds CM (Leeds office) repeating his request as he had not appreciated that the Lloyds DSAR team was dealing with it.46. On 20 October 2010 a member of the DSAR team sent to Mr Elliott a hard copy of his data extracted from the files relating to PMA and PMAL.

LDC

47. On 8 September 2010 Mr Swarbrick a Director of LDC wrote to Mr Elliott enclosing all documentation held on file by LDC regarding PMAL and its subsidiaries. The data included an e-mail trail from Grant Thornton to LDC in relation to a possible take-over, but no replies from LDC.48. On 16 September 2010 Mr Elliott responded by asserting that the information was incomplete. He did not say how. He demanded everything that had any reference to him including computerised and manually held data.49. On 21 September 2010 Mr Sanders wrote asking Mr Elliott why he was making the SAR. In cross-examination Mr Elliott said he was advised by the Information Commissioner’s office that he was not obliged to give any reason and did not do so.50. On 23 September 2010 Mr Preston wrote to Mr Elliott pointing out he was not entitled to data that was not “personal data”. He supplied a record of data held. Data to which he was not entitled had been redacted.51. In subsequent correspondence Mr Preston asserted that Mr Elliott had been provided with a comprehensive record of data and Mr Elliott asserted that they had not and threatened legal proceedings.3.7 Pre-action correspondence52. On 27 October 2010 Mr Pickworth wrote to CMS Cameron McKenna complaining that Lloyds CM had failed to respond to the SAR and that LDC’s response was incomplete. It was in particular alleged that there was a failure to provide data in relation to meetings held with Mr Elliott over the last 6 years and to the failure to provide replies to the Grant Thornton e-mails. The letter reserved the right to commence proceedings in the County Court.53. On 4 November 2010 CMS Cameron McKenna replied on behalf of Lloyds TSB. The letter made clear that the request to Lloyds CM was dealt with by Lloyds TSB and there was no need to send a separate request to it. The letter criticised the broad scope of the requests for data making a number of points all of which emerge clearly from the authorities considered above. Amongst other points it made the point that a request for personal data should not be used as a substitute for a request for pre-action disclosure and asserted that the recent requests for disclosure sought data outside the scope of a SAR.54. On 8 November 2010 Mr Pickworth replied to the effect that as the letter did not address the issues raised in his previous letter proceedings would be commenced.4 The proceedings55. Proceedings were duly commenced on 9 November 2010. The Particulars of Claim is short extending only to 4 paragraphs. In summary it asserted that Lloyds CM had failed to respond to the SAR at all and that LDC’s response was incomplete. It repeated the allegations contained in Mr Pickworth’s letter of 27 October 2010.56. A Defence and Request for Information was served on 17 December 2010. It is not necessary to refer to the Request for Information in any detail. The Defence is a detailed document.57. In paragraph 29 the Defendants asserted that the Particulars of Claim was vague and unparticularised.58. In paragraph 31 the Defendants asserted that they had continued to review the information and that they would shortly be serving a “limited number of further documents … which it considers include personal data to which the Claimant may be entitled”.59. In paragraphs 32 to 37 the Defendants asserted that save in relation to the further personal data referred to in paragraph 31 they had complied with their duties under the 1998 Act. They go on to contend (in paragraphs 38 and 39) that the requests by Mr Elliott go beyond personal data as explained in the authorities referred to above.60. In paragraph 41 the Defendants asserted that the claim was an abuse of process because Mr Elliott’s purpose was to gather information to further his dispute with Lloyds TSB, LDC or PwC.61. On 24 December 2010 the Defendant served some 108 sheets of data pursuant to the assertion in paragraph 31 of the Defence.62. On 24 February 2011 CMS Cameron McKenna wrote a long letter to Mr Pickworth setting out in some detail the data which was said to have been disclosed. The letter indicated that the Defendants intended to make an application to strike out the claim. The letter went on to deal with the claim against LDC and stated, for the first time that emails sent by it to third parties had been deleted from its systems. Once LDC’s interest in the potential investment concluded it had no reason to keep them.63. Mr Pickworth replied to this letter on 4 th March 2011. Amongst other matters he asked for details of when the deletions took place. He also set out Mr Elliott’s concerns in relation to data protection:Our client’s concern is that the Defendants and both of them made use of our client’s personal data without his consent in relation to matters affecting his companies in late 2008. The material that was disclosed by [LDC] on 23 September 2010 supports this belief. It included correspondence to your clients involving discussion of our client’s personal financial position. In those circumstances we would have thought it obvious why our client wishes to see your clients’ responses which you now tell us your clients have deleted.64. CMS Cameron McKenna replied on 11 and 16 March 2011 stating that it was LDC’s practice to delete information regarding potential investee companies regularly. In this case the replies to the Grant Thornton e-mails were deleted by Mr Swarbrick or his secretary before 2 August 2010.65. On 19 May 2011 DJ Anderson ordered a stay of the application for 6 weeks to allow the parties to attempt to settle the dispute by mediation. Regrettably the attempt was not successful.66. On 26 August 2011 the Defendants issued the application to strike out the claim and/or for summary judgment. It was supported by witness statements from Mr Preston, Ms Loveridge and Ms Billing and was opposed by a witness statement from Mr Elliott.67. The strike out application was listed for 9 November 2011. In the course of its preparations for the strike out hearing the Defendants concluded that it would be appropriate to further review whether there would be any other reasonable lines of enquiry internally that could have been pursued to identify potential personal data to which Mr Elliott might be entitled. In the light of this it was not considered appropriate to proceed with the application and it was withdrawn.68. At the hearing before DDJ Carson on 9 November 2011 the application to strike out was dismissed with costs summarily assessed at £6,000. Directions were given permitting the Defendants to file an Amended Defence. Paragraph 5 of the order provided:
“Upon the Claimant indicating that upon receipt of the witness statements below the substantive element of the Claim will not be proceeded with it is ordered that:
1. By 7 th January 2012 the First Defendant shall file and serve a witness statement providing details of the Claimants’ personal data that it has not yet disclosed to the Claimant (if any) or alternatively confirming that it has disclosed to the Claimant all the Claimant’s personal data to which he is entitled, including any personal data being processed by the Corporate Markets division of the First Defendant in Leeds and London at the time of the subject access requests referred to in the particulars of claim.2. The Second Defendant having deleted replies to the Grant Thornton email correspondence in October 2008, by 7 th January 2012 the Second Defendant is to file and serve a witness statement confirming that the Second Defendant has disclosed all the Claimant’s personal data to which he was entitled.69. According to Mr Cornwell the order was made as a result of an assurance given on behalf of Mr Elliott that provision of witness statements would bring the substantive issues in the Claim to an end and Mr Pickworth’s submission that this offered a cost efficient and proportionate way of deal with the dispute. Mr Cornwell made it clear at the hearing and in his skeleton argument that “...the Bank’s review is being conducted without prejudice to its contention that [Mr Elliott’s] subject access requests were an abuse of the subject access process and sought access to information which was neither data nor personal data”.70. On 9 December 2011 the Defendants filed an Amended Defence. In paragraph 31 the Defendants asserted that Mr Elliott’s claim remained unparticularised. In paragraph 32 it referred to the documents served on December 2010. It went on to state that Lloyds TSB had carried out further extensive searches and would shortly be serving a further limited number of documents that might be Mr Elliott’s personal data. It also stated that LDC had served on Mr Elliott on that date 4 pages including a limited quantity of information that might be Mr Elliott’s personal data.71. In paragraph 35 the Defendants did not admit that any or all of the information had not been disclosed previously or contained personal data in accordance with the authorities. It went on to assert that it had come to light only after very extensive searches which had involved a disproportionate amount of effort. It was accordingly submitted that there was no obligation to disclose that information.72. On 6 and 13 January 2012 Lloyds TSB served a further 343 and 17 sheets in accordance with paragraph 32. Witness statements were duly filed by Mr Hobbs and Mr Williams on behalf of Lloyds TSB and Mr Preston on behalf of LDC.73. It will be necessary to consider Mr Hobbs’ witness statements in more detail below when considering the extensive nature of the searches that have been carried out. In paragraphs 24 and 25 of his first witness statement he identified the six senior members of staff where no searches have been carried out:24. In a further six cases, I decided that it was not proportionate to contact the member of staff concerned because, in view of their seniority, they were unlikely to have had any material day-to-day involvement with the Companies. Accordingly, I felt that their documentation (if any) would be highly likely to comprise duplicates of documents recovered through others contacted during the review. These people were Diana Brightmore Armour, Richard Gossage, John Maltby, Duncan Parkes, Ted Regan and Mark Stokes.25. I felt that, by contacting the remaining 35 staff members on the list, the constituency was broad enough to conduct a significantly more than adequate and proportionate review (particularly in view of our intention to contact other members of staff identified as having also been involved with the Companies by the 35 now being approached).74. On 30 January 2012 there was a further CMC before DJ Saffmann. As already noted in the Introduction DJ Saffmann identified the three outstanding issues between the parties. He gave directions for further evidence and directed that the parties file detailed submissions on the question of costs.75. Further witness statements were filed by Mr Hobbs on behalf of Lloyds TSB and by Mr Elliott. In paragraphs 20 to 23 Mr Hobbs provides further material in relation to the 6 individuals. He did in fact review the material for one of the employees – Mr Parkes and (as he suspected) found nothing that had not already been disclosed. Thus there are now only 5 individuals where searches have not been carried out.5 Correspondence from Mr Elliott in 2011.76. Mr Elliott wrote four letters to Mr Horto-Osario (the Chief Executive of Lloyds TSB) between 15 March 2011 and 13 July 2011. It is not necessary to refer to them in detail. Each was answered by CMS Cameron McKenna.77. On 15 March 2011 Mr Elliott sent Mr Horto-Osario an overview of his complaint against Lloyds TSB. In addition he referred to Lloyds TSB’s lack of co-operation in providing data requested under the 1998 Act.78. The letter dated 31 March 2011 is divided into 4 sections. Only the third section relates to the 1998 Act. In the letter he asserted his belief that data exists that the Defendants would not release. He also asserted that there was a lack of co-operation in providing personal data.79. The letter of 27 April 2011 is also divided into 4 sections. Only the third section relates to the 1998 Act. In the letter he repeats his complaints of lack of co-operation and specifically refers to the deletion of emails by Mr Swarbrick.80. The letter of 13 July 2011 repeats the complaints and asserts that Lloyds TSB has not complied with SARs under the 1998 Act.6 Were these proceedings an abuse?81. In his closing submissions Mr Cornwell invited me to infer that the dominant purpose of Mr Elliott in bringing these proceedings was to obtain information in relation to his claims against Lloyds TSB and/or PwC. He invited me to reject the evidence that Mr Elliott had concerns about the purpose to which the data had been put. He made the point that the first time this was mentioned was in Mr Pickworth’s letter of 4 th March 2011 some 3 months after the service of the Defence. He makes the point that Mr Elliott refused to disclose his grounds when asked by Mr Sanders on 21 September 2010. He invited me to look at the timing of the applications. The 2009 application was made shortly after the unsuccessful application for pre-action disclosure. The period referred to in the 2009 SAR was the period when things started to go wrong for PMA and PMAL. He drew my attention to the correspondence with Lloyds TSB between 2009 and 2011 in which Mr Elliott continued to ventilate his complaints and grievances against Lloyds TSB and PwC. He made the point that the 2011 correspondence intermingled the data protection issues with the other grievances and did not anywhere express concern about Mr Elliott’s privacy or unlawful processing of data.82. He submitted that the contents of the requests and Mr Elliott’s attitude to the six individuals are evidence of the collateral purpose. He made the point that the requests went far further than personal data permitted by the 1998 Act.83. I see the force of these submissions but in the end I do not accept them. First, I do not accept that it is necessary for Mr Elliott to establish a lawful purpose as “the dominant purpose”. Whilst it is true that in paragraph 121 of Iesini Lewison J found that the dominant purpose of the action was to benefit Westrip that was not the test he applied. The question was whether but for the collateral purpose the claim would not have been brought at all.84. Second I do not accept that Mr Elliott’s legitimate concerns were not expressed till March 2011. In September and October 2010 he and Mr Pickworth had expressed the view that LDC’s response was incomplete and that LDC had not provided replies to the Grant Thornton e-mails which on any view contained personal data (see, for example the e-mail of 18 October 2008). There was no response to this complaint until the letter of 24 February 2011 from CMS Cameron McKenna.85. Third Mr Elliott gave evidence before me for over half a day. I thought he was an honest witness. In particular I accept his evidence that he had concerns that his data had been misused and wished to check on this.86. Fourth I do not see how Mr Elliott’s attitude to the six individuals really assists me in determining what his motives were in bringing these proceedings. The issue of the six individuals only arose in 2012 when Mr Hobbs filed his witness statement some 15 months after the commencement of the proceedings.87. It may well be that Mr Elliott had mixed motives in making the SAR request and in making this application to Court. He may have hoped to obtain information or data that would be useful in furthering his grievances. He plainly had grievances against Lloyds TSB and PwC and is plainly contemplating proceedings against them. He voiced these grievances together with the complaints under the 1998 Act forcefully in the 2011 correspondence to which I have referred. However I am satisfied that one of the significant motives was the concern expressed both in his witness statement, in cross-examination and in Mr Pickworth’s letter of 4 th March 2011. I am satisfied that that purpose was sufficient to enable Mr Elliott to bring these proceedings. I am equally not satisfied that but for any other purpose this application would not have been brought at all. In my view this claim was not an abuse of process. I would, accordingly not refuse relief under section 7(9) of the 1998 Act on that ground.7 The 6 individuals88. The process by which the Bank organised and conducted its further review for Mr Elliott’s personal data is explained in detail in the three witness statements from Mr Hobbs and in the witness statement of Mr Williams. As Mr Hobbs explained in his first witness statement, in the interests of proportionality the Bank sought to identify relevant employees who were most likely to hold any personal data of Mr Elliott. At an early stage of the Bank’s searches it decided that it would not be proportionate to extend its searches to the 6 Individuals.89. Mr Cornwell submits that these reasons for considering it disproportionate not to include the 6 Individuals in the searches are logical, rational and fully consistent with the considerations as to proportionality identified in Ezsias , in particular the likelihood of finding any of Mr Elliott’s personal data in the light of the fact that:(a) any information that the 6 Individuals might hold would be likely to relate to the Companies, not Mr Elliott; and(b) any information held would be likely to duplicate that found from searching less senior staff.90. Mr Hobbs amplified this in his third witness statement in which he has explained the position of the 6 Individuals in the Bank and why he believed that they would not hold personal data about Mr Elliott that was not held elsewhere (paras.13-19). He has conducted a further review to ascertain the likely level of involvement of five of the 6 Individuals (other than Duncan Parkes) which has confirmed the extremely minimal nature of their possible involvement with the Companies (paras.21-22). In relation to Mr Parkes, notwithstanding the Bank’s view that such searches would be disproportionate, Mr Hobbs has caused searches to be done of Mr Parkes’ electronic records that have revealed no potential personal data other than that already identified on the earlier searches of more junior staff (para.20).91. In paragraph 38 of his witness statement Mr Williams gave some idea of the amount of time spent on the exercise:I cannot say how long the exercises described in Deborah Loveridge’s statement and Sophie Billing’s statement took, but the exercise which I coordinated took approximately 188 hours in total. I am not including in that total the time spent by the Bank’s IT team, but I am including in that total:· My time (16 hours);· Mr Hobbs’ time (12 hours);· The time spent by the members of staff referred to in the list above (or subsequently added to it) (60 hours), and· The Bank’s solicitors and Counsel’s time (100 hours).92. To my mind Mr Cornwell’s submissions are convincing. In my view Lloyds TSB have carried out a reasonable and proportionate search. I decline to order a further search of the remaining 5 individuals.8 Costs.93. I have not found the question of costs easy. As already noted pursuant to the order of DJ Saffmann each side has made detailed written submissions on costs. Furthermore, as is apparent from the volume of documentation with which I have been provided the costs on each side are substantial. At the hearing I was told that the Defendants costs are in excess of £50,000. Mr Pickworth was not in a position to give me any indication of his costs but I note that his costs of the strike-out application were assessed at £6,000.94. In his written submissions Mr Pickworth relies on two main points – the outcome of the proceedings and the Defendants’ conduct both pre-action and during the hearing. He submits that Mr Elliott has succeeded in these proceedings. He relies on the disclosures of 24 December 2010 (108 pages), 9 December 2011 (4 pages), 6 January 2012 (343 pages) and 13 January 2012 (17 pages). He submits that all Mr Elliott wanted was his personal data and that he has accordingly succeeded in the application. He submits that Mr Elliott had no alternative other than to issue proceedings. He relies on the delays in providing any data pursuant to the SAR. He makes the point that CMS Cameron McKenna failed to deal with the specific points raised in his letter of 27 October 2010. He submits that the Defendants have been uncooperative in two ways. First they have refused to acknowledge that any of the 472 pages disclosed since the issue of proceedings contains personal data. Second they have been unreasonable in refusing to search for personal data from the six individuals.95. In his written submissions Mr Cornwell submits that in order to determine costs the Court will need to form a view on many of the issues that did not need to be resolved as a result of the agreement of the parties. His prime submission is that Lloyds TSB and LDC are the substantial winners and that Mr Elliott ought to pay their costs.96. Mr Cornwell makes four main submissions on costs. First he makes the point that Mr Elliott is only entitled to “personal data” within the meaning ascribed to it in the authorities. He makes the point that the SARs and the Particulars of Claim sought information that Mr Elliott was not entitled to under the 1998 Act. He makes the point that despite requests Mr Elliott and/or Mr Pickworth refused to clarify the position and/or particularise the claim so as to limit it to “personal data” within the meaning of the authorities.97. Second he makes the point that Mr Elliott was only entitled to proportionate searches. He summarises the searches that were in fact carried out before 9 November 2010 by reference to the witness statements of Mr Preston, Ms Loveridge and Ms Billing and submits that reasonable and proportionate searches had been carried out before 9 November 2010. In the alternative he submits that reasonable and proportionate searches had been carried out by 24 December 2010. In the further alternative he submits that reasonable and proportionate searches had been carried out by January 2012.98. In relation to the 4 sheets supplied by LDC on 9 December 2011 Mr Cornwell points out that the 4 sheets were heavily redacted and contained only a few lines of information. He submits that the information disclosed is substantially the same as that disclosed in September 2010 with the result that Mr Elliott has not achieved the disclosure of any new personal data against LDC.99. In his submissions on costs Mr Cornwell attempted to analyse the documents provided by Lloyds TSB in December 2011 and January 2012. He divided the information supplied in December 2011 into 5 categories –1. Information that exactly duplicates information disclosed elsewhere in Exhibit AH1. He contended there were 28 such items. When he gave evidence Mr Elliott produced a Counter Schedule in which he challenged 16 of these items.2. Information the substance of which was included in the information disclosed by the Bank in December 2010. There were 64 items of information. Mr Elliott disputed all of these.3. Information that would already have been in Mr Elliott’s possession. There were 110 such items. Mr Elliott disputed 2 of the items and queried 7 more. Otherwise he accepted the list as accurate.4. Information potentially newly disclosed but which Mr Elliott would have been aware of. There were 86 such items. Initially Mr Elliott disputed all but two of them. However in cross-examination he admitted that he was wrong about one item. He also made it clear that he was only challenging the extent of his knowledge of the opinions of the relevant Bank official.5. Potentially newly disclosed information. There were 54 such items. Unsurprisingly Mr Elliott agreed with all of them.100. Mr Cornwell carried out a similar analysis on 17 sheets disclosed in January 2012. I do not find it necessary to summarise the analysis.101. As I indicated at the beginning of this section I have not found the question of costs straightforward. My decision has been influenced by a number of factors:1. Each of the parties has succeeded on one of the two substantive points argued before me and failed on one. I have held that Mr Elliott’s application was not an abuse of process but I have refused to order a further search in relation to the remaining 5 individuals.2. There is some force in Mr Cornwell’s submission that Mr Elliott’s claim was largely unparticularised despite a number of requests for further information. This is some indication that Mr Elliott did not have any actual evidence that his personal data was being misused. On the other hand, as Mr Pickworth pointed out Mr Elliott did not know what personal data Lloyds TSB or LDC had and thus could not give particulars.3. In his letter of 27 October 2010 Mr Pickworth did make specific complaints about two matters including the replies to the Grant Thornton emails. These were not answered until the letter of 24 February 2011 and the full explanation not given until 14 March 2011.4. Whilst it is true that Mr Elliott’s written requests went beyond his entitlement under the 1998 Act I do not find this a very persuasive point. Lloyds TSB and LDC should have been well aware of their obligations under the Act and it is clear from the letter from CMS Cameron McKenna of 4 November 2010 that they were fully aware of the legal position.5. Only some of the data was provided within the 40 days specified in the 1998 Act.6. It would be a disproportionate exercise for me to analyse the data provided on 24 December 2010 to see to what extent it represented new data. It does however seem clear from Mr Cornwell’s analysis of the 2011/2012 disclosure that a significant amount of the data disclosed in December 2010 was new. [See category 2]. My provisional view is that the searches carried out initially by Lloyds TSB would not be held to be sufficient to satisfy Lloyds TSB’s obligations under the 1998 Act. It follows that Mr Elliott was justified in proceeding against Lloyds TSB at least until he was supplied with the information in December 2010. In my view he was also justified in pursuing LDC until he received the full explanation on 14 March 20117. Whilst Mr Cornwell’s analysis reveals that a limited amount of the information provided by Lloyds TSB in December 2011 was new it would be disproportionate for me to enter into the debate as to how much was new. In any event it seems to me to be strongly arguable that the searches carried out in 2011 leading to that information went beyond Lloyds TSB’s obligations under the 1998 Act. I also agree that the 4 heavily redacted sheets disclosed by LDC in December 2011 should either be regarded as not new data or “de minimis”.102. In all the circumstances I consider that the fair order for costs is that the Defendants should pay Mr Elliott’s costs (on a standard basis if not agreed) until 14 March 2011. Thereafter there should be no order for costs. This order does not, of course, affect the order of DDJ Carson in respect of the costs of the strikeout application which was withdrawn.