Do I have a case?

[Stew2017]

Hi,

Long story short – I filed a DPA SAR against my insurer in preparation for a court case for breach of contract relating to an insurance claim (CASE A hereafter). They agreed to provide some of the 330 phone calls across 14 legal entities I’d had to deal with, and were aware I intended to rely upon them in court. Without explanation they have failed to provide any of the calls and most of the correspondence some 3 months after the 40 day SAR period expired.

Meanwhile, I have filed for breach of contract against the entity I thought responsible, but this seems to be the wrong one, resulting in a pre-allocation application to strike the case and a 5 figure claim for legal costs presented to me the day before Christmas. The stress resulting from their costs claim has caused insomnia, for which I am now receiving treatment from my doctor. Believe me, I realise I got it wrong and should have taken advice prior to starting – I’ve hired a solicitor to advise on next steps with that case (Case A).

What I’d like to request is some views on whether I have a case (CASE B) to bring for breach of the Data Protection Act. My understanding is that I have to demonstrate the breach of the DPA led to a loss in order to bring such a case. The ICO have confirmed that the audio recordings should have been provided under the SAR. Can the legal costs claim of case A be considered as a loss for the purposes of bringing case B? The costs have only arisen because I sued the wrong entity and that in my view mostly happened because of the insurers penchant for passing work items seamlessly between entities and without notice, and then refusing to provide the call recordings they have taken or any emails between their various entities and contractors. Otherwise, what constitutes a loss for the purposes of bringing a case for breach of the DPA?

The calls & emails requested under SAR have still not been provided, and as yet the costs claim in case A has not been heard in court – we’re waiting for a hearing date (I think).

So, do I have a case to bring for breach of the DPA?

Thanks.

[R0b]

Re: Do I have a case?

Hello,

In my view, it is unlikely you would have any chance of success for damages for breach of the DPA in terms of your loss. You ought to have carried out due diligence as to who the correct entity was prior to issuing the claim and if you fail to do so, then you run the risk of costs against you which in this case sounds like an application to strike out the claim which the court has granted for reasons you already know. You should have made an application to the court for an order to disclose the documents under the SAR request if they failed to comply and that should have been done prior to the issue of the court claim against the wrongly named entity. Had you done so, the insurers would have disclosed the relevant documents and presumably the insurance contract which would have named the correct entity so that you can proceed with your claim.

As you took the steps to issue a claim without full knowledge of who the correct contracting party when you had the option to ask the court for the insurer to comply with your SAR request, any claim for consequential losses would probably fail.

[Stew2017]

Re: Do I have a case?

Thanks for your reply.

The court has yet to make a decision on the application to strike, though I belatedly understand why it may well progress as you suggest.

Please may I ask how, prior to beginning a court case, I can make an application to the court for disclosure of documents? The n244 requires a case number and defendants details, neither of which I'd have at that stage.

[R0b]

Re: Do I have a case?

Just to be clear, did you make the SAR request pre-proceedings or post-proceedings?

If the SAR was pre-proceedings, then you can make an application to the court for an order of the insurance provider in question, to disclose the relevant documents or alternatively, you could have made a pre-action/third party disclosure application (if relevant) to the insurer asking to disclose further documents/information. If post-issue of proceedings, then you could have still made a separate application for an order of compliance with the DPA 1998 notwithstanding any proceedings that have been issued.

Neither of the above requires you to have issued proceedings before you can make the application because the court will allocate a claim reference number for each application made.

[Stew2017]

Re: Do I have a case?

SAR is preproceedings.

I have made an application for disclosure of the documents, but that was after their application to strike was entered. Neither application has been adjudicated as yet.

[R0b]

Re: Do I have a case?

Then my guess is that you shouldn't have issued proceedings until you got the relevant information you required. Section 7(9) of the DPA 1998 provides you the right to make an application to the court if the insurer failed to comply within the 40 day period. You should have engaged down that route before issuing proceedings and subsequently becoming aware that you had the wrong entity and presumably once disclosure has been made, you would have known the correct name of the defendant?

You could try to mitigate the matter by suggesting that you have been passed to a number of various companies within the insurance group without any clear understanding as to the correct defendant (despite requesting them to do so if you asked them to clarify). As a result you issued a claim on the basis of your own knowledge and although you have now issued a claim against the wrong defendant this was contributed by the insurer and its other entities. You could then suggest in light of this the entity should not be awarded their legal costs (as the court retains discretion at all times) and perhaps ask a court to make an order substituting the wrong defendant with the correct one.

[Stew2017]

Re: Do I have a case?

Yes, unfortunately I learned that the hard and expensive way.

Thanks for your suggestions. I've actually already filed such a defence to strike and my own n244 and am now at the mercy of the court.

[Stew2017]

Re: Do I have a case?

Actually, can anyone give a ball park on costs for an application to strike? They're claiming just over £7k for that and another £2.5k for correspondence containing a previous offer to settle.

The case amount claimed is less than £5k.