Court guidance on low-value data protection claims

In a recent decision in Clearly -v- Marston (Holdings Ltd) [2021] EWHC 3809 (QB), the judge in charge of the Media and Communications List (MCL) indicated that low-value data protection claims should be handled by the County Court and (most likely) allocated to the small claims track. Only limited costs are recoverable from an opponent in the small claims track, meaning claimant solicitors are less likely to pursue low-value data protection claims.

Background

The case concerned an email intended for the claimant sent to a third party in error. There was little in dispute factually and the data breach was admitted. The claimant issued proceedings in the High Court for breach of data protection legislation, misuse of private information and breach of confidence, seeking damages in the sum of £3,000 and a declaration that the processing of the claimant’s data constituted misuse of private information and/or breach of his data protection rights. The claimant’s solicitors were operating under a conditional fee agreement (CFA) providing for a success fee (albeit success fees are no longer recoverable against an opponent in privacy claims unless the agreement was entered into before 6 April 2019) and had obtained after-the-event insurance (ATE) at a cost that potentially exceeded the value of the claim (ATE premiums are potentially recoverable against an opponent in claims for misuse of private information). The claimant’s estimated costs to trial were £46,908. 

The claimant argued that the claim fell within the scope of the MCL and that the County Court did not have jurisdiction to deal with claims for breach of confidence. The claim, he said, was highly specialised and ought to be dealt with by a specialist judge. 

Decision

The judge disagreed and provided the following useful guidance for those on the receiving end of low-value data protection claims:

Claims could only be issued in the MCL if they met the criteria for being a High Court claim: ‘…there exists a category of non-defamation media and communications claims that are capable of being brought and fairly tried in the County Court. Typically, those will be claims where the damages sought are relatively low and the claim does not have any particular complexity…It would be a matter for the District Judge in each case, but there is no reason why straightforward claims cannot be dealt with on the small claims track’.

Whilst the County Court does not have original jurisdiction to hear claims for breach of confidence, those types of claims can be transferred to the County Court. Further, ‘Those who are advising claimants who want to bring data breach claims need to think carefully about the claims that are included. There can be and often are several overlapping claims; breach of confidence, misuse of private information and breach of data protection legislation. In many cases, this will simply represent three different wants of characterising what is essentially the same complaint…In straightforward cases, like this one, there may be no real dispute about the data breach. If so, little if any substance or real value is likely to be gained by complicating the claim by bringing additional claims for misuse of private information and breach of confidence.’

A declaration in this type of case would be meaningless: ‘…I have yet to have advanced to me a coherent argument why such remedies should be sought or granted by the court in cases like this…A claim for a declaration in a media and communications claim is unusual and should not be included unless, exceptionally there is justification for one’.

Whilst claims for data protection breaches, misuse of private information and breach of confidence are not straightforward, County Court Judges are capable of dealing with the legal issues that arise.

The judge accepted that allocation to the small claims track meant that the claimant may not be able to obtain legal representation or ATE insurance. While noting the policy argument regarding access to justice, the judge nonetheless held that the nature of the claim did not justify allocation to anywhere other than the small claims track in the County Court. Legal costs of around £50,000 to recover £3,000 made no sense.

Comment

The decision is in line with recent case law on the allocation of data protection claims and demonstrates the hardening judicial landscape for claimants seeking to pursue low-value data protection claims. 

For further information on Data Protection issues, please contact Kate Steele.