Data breach: Damages will be minor
A master has labelled as “a form of procedural abuse” a bid to bring a data breach claim in the High Court where the “very modest” damages would be dwarfed by costs of £50,000.
Master Thornett ordered that Emma Louise Johnson’s claim be transferred to the small claims track, having narrowly decided against simply striking it out.
Ms Johnson sued Eastlight Community Homes, a provider of low-cost social housing, after her name, email address and recent rent payments were accidentally disclosed to another tenant.
Her details appeared on three pages of a document that was nearly 7,000 pages long and the breach was remedied in less three hours.
The defendant told Ms Johnson about the error and that the recipient had deleted the information. It reported the breach to the Information Commissioner’s Office, even though it did not think this was necessary, and the commissioner did not take any action.
Ms Johnson nonetheless instructed solicitors Pure Legal, which has been a leading firm for data breach litigation until it recently went into administration. Its Precedent H said it had so far incurred £15,000 in costs and gave a total figure of just over £50,000.
The defendant applied to strike out the claim or for summary judgment on the basis either that the claimant has suffered no loss or damage above the de minimis threshold or, even if they were more, the “game is not worth the candle” and so still ought to be struck out under the Jameel principle.
Master Thornett observed that the disclosed information “plainly was not of an obviously sensitive nature in itself”.
However, Ms Johnson said she had moved to her home three years earlier to escape an abusive relationship and had avoided making her new address public – while she acknowledged that the chances of her former partner receiving the information was extremely low, she said the thought of it left her “stressed, worried and very anxious”.
At the same time, she did not make a personal injury claim, the master noted.
Further, her ex-partner could have located her “simply utilising publicly available channels”, as she was not ex-directory, and she took no steps to apply to withhold her address from the claim itself.
“I agree with the defendant’s submission that the claimant’s distress seems more in the realms of the unknown or the hypothetical than in reality,” he said. “I also treat it as historic rather than current.”
Master Thornett said the request for an injunction and a declaration alongside damages was “merely an attempt to add credibility to the claim and to convey a greater impression of its importance”.
It was in reality a claim for “at best modest damages” – the claimant said no more than £3,000.
The master continued: “No serious privately paying litigant would contemplate spending over £50,000 in costs, not all of which may prove recoverable even in the event of success, and similarly expose themselves to the risk of a significant adverse costs order following High Court litigation if unsuccessful, for a damages claim less than £3,000.
“The presentation and processing of this case to-date in this forum has, I am satisfied, constituted a form of procedural abuse.”
However, “by a very narrow margin”, he decided that the question of whether the claimant’s entitlement was to “purely nominal or instead extremely low damages” should be transferred to the small claims court.
“Mindful that the court should strive to provide a remedy to any litigant if it can… the claim ought not to be entirely struck out but instead redirected to the more appropriate forum…
“Everything about this case has all of the hallmarks of a small claim track claim that should have been issued in the county court and so allocated.
“The suggestion that this is a developing area of law or where, even if principle is established, requires elaborate and complex legal argument is unrealistic if not, at least arguably, opportunistic.”
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