Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB)
Case background
Joseph Cleary (Claimant) was an employee of Marston (Holdings) Ltd. On 9 August 2019, an employee of Marston (Holdings) Ltd (Defendant) sent a letter meant for the Claimant to one of his colleagues. It is accepted by both parties that this was done in error.
The Claimant issued a claim in the High Court for breach of data protection legislation, misuse of private information, and breach of confidence. It was stated on the claim form that the claim was worth no more than £3,000. Given the value of the claim, the Defendant sought to transfer it to the County Court and asked that it be allocated to the small claims track.
HHJ Nicklin directed the Claimant’s solicitors to file a witness statement in advance of the case management hearing explaining why the High Court was the appropriate forum for this claim.
The Claimant’s solicitors within the witness statement accepted that the pleaded value of the claim was low and such claims were typically brought in the County Court. They however stated that because of the specialist nature of the claim it was desirable to have the claim dealt with by a specialist High Court judge. In support of their position, they referred to CPR 53.1 which confirms that claims for misuse of private information and data protection fall within the scope of the specialist Media & Communications List.
HHJ Nicklin in the case management hearing considered whether to transfer the claim to the County Court. In his judgment, he referred to Master Thornett’s decision in Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB). Master Thornett noted that a claim for misuse of private information and/or data protection should only be issued in the Media & Communication List if it is actually a High Court claim. The CPR does not state that such claims must be issued in the Media & Communications List of the High Court.
In relation to misuse of private information and/or data breach claims, HHJ Nicklin confirmed that:
“where the damages sought are relatively low and the claim does not have any particular complexity. Such claims ought properly to be commenced in the County Court. It will 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.”
HHJ Nicklin within his judgment then went on to clarify the position in relation to breach of confidence claims. He confirmed that whilst a claim for breach of confidence needs to be started in the High Court, the High Court can decide to transfer the claim to the County Court. Claimants should therefore think twice if they are simply including a breach of confidence claim with the intention of keeping the claim in the High Court.
In coming to his decision, HHJ Nicklin considered the Claimant’s cost budget that was filed in anticipation of the case management hearing. Within the budget, the Claimant’s solicitors estimated that their total costs of bringing the case to a conclusion at trial would be £46,908.
HHJ Nicklin commented that:
“no ordinary litigant would incur costs approaching £50,000 in order to recover £3,000. The likely irrecoverable costs would almost certainly exceed the sums that Mr Cleary was claiming in damages”.
On this basis, HHJ Nicklin concluded that the best place for resolution for the Claimant would be in the small claims track of the County Court.
Comment
This decision is a helpful reminder that you should carefully consider which Court is the appropriate forum to hear a low-value data breach claim. This decision indicates that if the value of the claim and the level of complexity is low, the claim should be issued in the County Court and allocated to the small claims track.
Within his judgment, HHJ Nicklin set out some useful points that should be considered before issuing a data breach claim. These are as follows:
“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 ways of characterising what is essentially the same complaint.
In accordance with the overriding objective, and also in the best interests of the client, it is necessary to consider whether a claim in respect of all three causes of action needs to be pursued. If there is a straightforward claim, for example for a data protection breach, then it may be in the best interests of the client and the simplicity of the litigation to concentrate on only that claim. In straightforward cases, like this one, there may be no real dispute about the data breach. If so, little of any substance or real value is likely to be gained by complicating the claim by bringing additional claims for misuse of private information or breach of confidence.”
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