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Hi, I am looking for some guidance and assistance on a GDPR Breach / Personal Injury Claim that my wife is facing as a defendant from a former sub-contractor of her small dog walking firm.
The essential details of the case are as follows (this is a long, but interesting read - please read on, with some questions at the bottom):
- My wife's dog walking business is a very small, sole trader firm. I run my own events business and am not employed by her at all and have never received any payment, however I have walked dogs on occasion for her as a favour if she needed help or couldn't work for whatever reason.
- The claimant used to work for my wife as a sub-contractor. She left in early 2020 after she had made baseless accusations against another member of staff. Following this, we learned that whilst she was working for us, she had disclosed to this member of staff that she had 'found' a dog on the side of the road in a nearby village and had seen a Facebook post from the owners looking for the dog. She also revealed the name of the dog. She stated that she wasn't going to give the dog back as the owners were gypsies and the dog obviously wasn't being cared for. She did not report the dog as a found dog to the dog warden. By making the accusations against the other staff member, we now feel she was trying to get rid of her due to her disclosure.
- We were told about this by the staff member in Oct 2020 who had found the Facebook post, which showed the owners to be desperate to find the dog and as far as we could see the dog looked like it was a valued member of the family. The family are from the traveller community but live in a house and the dog belonged to their little girl. We decided not to do anything about it at this stage as my wife was due to give birth to our little girl. However, a few months later I decided that it wasn't right for this little girl to be without her dog and wondering what had happened to it, so I messaged the owners on Facebook to firstly establish some facts to corroborate that it was in fact the same dog (name, time it went missing, images etc). After the owner confirmed that the dog in question was theirs, I went to the Police and reported it to them. I gave them the claimants name and address, which I knew from my own knowledge as I had attended the property on at least two occasions, as I was in the car with my wife as she dropped some keys for clients houses through her door. I was accompanying her at the time as her mental health was in a very bad way. She also reversed her car into one of the claimant's neighbours cars on one occasion, and at such incident the claimant had seen that I was accompanying my wife in the car.
- The Police did not take the matter seriously and although they contacted the claimant, they didn't take it any further. We felt there was an air of prejudice about the dog originally belonging to travellers and also a sense that we were doing this out of some sort of malice (we weren't). When I contacted the Police a couple of weeks later to get an update, I asked whether I would be doing anything illegal or wrong by passing the claimant's name and address over to the dog owners so they could resolve the matter between them. I was told that this was fine as it would be a civil matter between them to settle ownership of the dog. I have an audio recording secured from the Police of this conversation.
- On the back of this, I gave the name and address to the dog owners. They tried to contact the claimant via Facebook messenger however they were blocked by her. Following this the husband and his young daughter went to the property to ask for the dog back. The claimant is alleging that during this visit, the husband made threats to her with words to the effect of 'I'm a travelling lad and I know people'. The police were apparently called, with the husband and daughter asked to move on, without any arrests being made. They have stated that the Police have put a 'marker' on their property, but have offered no evidence for this. As far as we know, the claimant still has this dog. The husband has stated to me that he didn't threaten anybody. I've encouraged them to make a civil claim for the dog but they haven't as of yet.
- Following this, the claimant accosted my wife in a public park with the opening line being 'How dare you send gypsies to my door!'. Apparently the young daughter had given my name as the person who gave them the address. The claimant then went on to accuse me of being an abusive husband, and when my wife denied this, stated 'Well how come you called me instead of him when you were suicidal?!', referencing a point in her life a couple of years earlier when my wife was going through some very serious mental health problems. All of this was played out in a public park, in front of members of the public and the claimant's new boss, who also runs a dog walking firm in the town. This made her extremely upset and she sent an email to the claimant's new boss that afternoon stating her side of the story, however she included a line which was factually incorrect as her head was mashed after the horrible incident earlier in the day. She stated 'I regret giving my husband the address to give to the owners'. This is not the case at all. We feel that due to the bullying which she endured and being berated by the claimant, she was in an emotional state, confused and upset. She will address this within her witness statement.
- During this altercation, my wife asked the claimant twice whether she had reported the dog to the dog warden, which she confirmed that she had on both occasions. We have an audio recording of this conversation. We have a letter from the local dog warden who has confirmed this is not the case. They keep a statutory register of dogs who are reported to them and the people who report them, which is free and available for the public to see.
- Moving on, we received a pre-action claim in June 2021 from the claimant which was very much an intimidation tactic to get an immediate settlement from us, which they put at above £7000, even though they didn't even lay out a claim amount. They also stated that if we didn't pay up within 14 days, they would 'instruct a psychologist who will conduct a medical report which will outline the psychological injuries sustained by our client'. This language seems pre-emptive as if a diagnosis is just a matter of time. They stated the report would be payable by us and could cost around £1500. We consulted solicitors who basically told them that 'you've got no case, bugger off'.
- Following this we received a second pre-action letter of claim in sept 21, which included a psych report from an expert witness, who diagnosed the claimant with PTSD. This diagnosis was done purely on the claimant's self-report without consulting her GP records, despite her disclosing that she had suffered from anxiety only a year earlier. The expert witness recommended 10 sessions of CBT therapy. We were never given any choice of several expert witnesses for them to instruct, which we've since discovered is against pre-action protocol. Included alongside the report was an invoice from what seems to be a medical services agency, let's call them B&Q Medical Services Ltd (not real name). This invoice was for an Initial Assessment (£400), 10 sessions of CBT (£2000, which is a hugely exaggerated cost for CBT therapy) and a discharge report (£300), totalling £2700. Investigations into this medical agency have revealed that the company is actually owned by the father and business partner of the claimant's solicitor! He is not a director of that medical agency, but is a joint director of another business with his father. We have also uncovered the fact that the address listed on the invoice (which is 100 miles away from our town) is also the address of a run down discount cash and carry shop, which is owned by the solicitors father! Each business also shares the same phone number. In another breach of pre-action protocol, they never asked our permission to use a medical agency to instruct an expert witness. The solicitor and his father are also listed on the electoral roll and 192.com as being at the same residential address. All of this surely constitutes a massive conflict of interest in the diagnosis and treatment of the alleged PTSD?
- Following this, our solicitors instructed a barrister to assess our case and write a substantive letter to the claimant's solicitors, raising a number of points including:
- Stating that although I have helped my wife on occasion, I am not an active member of the business nor am I employee, servant or agent of the business and therefore principles of vicarious liability do not apply
- My knowledge of the address came from my own knowledge having attended the property, not from recorded information, and as such falls outside of the data protection regime
- If it was established that the business made the disclosure, it would have a lawful basis to do so under UK GDPR Article 6(1)(f) as there was a legitimate interest in the third party locating their dog
- Should the disclosure be found to fall within the data protection regime, it would in any case be covered by the exemption in Schedule 2, Part 1, Article 5 of the DPA 2018 which permits disclosures of personal data where it is required to be disclosed in connection with legal proceedings. This includes prospective legal proceedings, the obtaining of legal advice or where it is otherwise necessary for the establishing, exercising, or defending of legal rights. This would clearly apply given the civil dispute between the third party and the claimant regarding the ownership of the dog.
- All that was disclosed was the claimant's name and address, which is not sufficiently private in nature to engage Article 8 ECHR rights and therefore misuse of private information does not arise. It is also information which is generally publicly known and/or accessible in any event, for example on the electoral roll and on websites such as 192.com. To confirm, the claimants address is listed on 192.com
- The alleged actions of the third party were not reasonably foreseeable, are too remote from the disclosure and break the chain of causation.
- Points regarding the medical report and lack of medical records are raised, as well as a request for the letter of instruction to the expert witness and a request to confirm whether the claimant is willing to provide us with access to her medical records for review, with a view to us asking Part 35 questions and / or instructing our own expert.
Not one of these points or others raised in this correspondence was responded to, which again is a breach of pre-action protocol. However, this did have the effect of reducing their settlement offer down from £11500 plus costs, to £5000 plus costs. This was eventually reduced to £3000 plus costs, which we countered with £3250 all in. They rejected and stated their offer stood. We ignored it and they issued proceedings in January 2022, claiming no more than £10k, but with more than £1k for personal injury so have sought an allocation to the fast track court, which has been proposed by the court prior to our submission of the Directions Questionnaire, which we are in the middle of. They have submitted theirs and have only listed the claimant and her new boss as witnesses in the case. Yesterday, we submitted a final settlement offer of £4.5k all in, in a commercial decision just to try and get rid of this, which they rejected within an hour, stating that their costs alone were way above that figure. The expert witness advertises his services on the internet and his standard fee for a medical report is £380 & VAT. In the email we received yesterday from the claimant's solicitor, they detailed the costs incurred so far and stated the medical report fee was £1250! However, they didn't list the CBT treatment. When we questioned this, he stated "The treatment would not be a disbursement however it would be part of the Claimants special damage claim. Given that there is no special damages claimed from the stage of proceedings being issued, it has not been included within the claim"
We have an absolutely brilliant defence document, put together by one of the leading experts in GDPR law in the country, however we have dis-instructed the solicitors as it was costing us a fortune and we wanted more management of the case with a direct access barrister, which we are currently seeking.
Questions I have:
1. What is your assessment of the case and their claim?
2. What is your assessment of the defence we have put forward and our chances of success?
3. What is your assessment of the points put forward regarding exemptions under GDPR / DPA?
4. Is it possible for a personal injury claim, particularly one of a psych nature, to have any robust merit when it is based solely on a self-report within a psych report from an expert witness, with no corroboration of the incident which is alleged to have caused the PTSD? I would find this to be staggering if this is the case.
5. Thoughts on the conflict of interest between the solicitor and the medical agency in regards to the instruction and treatment of the alleged PTSD - is this behaviour by the solicitor something that should be reported to the SRA?
6. Can my wife be held liable for this alleged incident which apparently caused this PTSD when the alleged threats were made by a third party completely out of her control, especially when it was I who passed on the information and not her?
7. The severity of these alleged threats seem to be predicated on a prejudicial and stereotypical view of the gypsy traveller community - would this have any impact in our case?
8. In terms of a settlement offer we have made, it was proposed under CPR Part 36, however I am unsure if it would be valid under Part 36 rules as it was a whole figure which included costs, interest, vat etc, rather than £4.5k plus costs. A friend of mine who has just come out of law school has said that a Part 36 offer needs to include any costs accountable up to the point of acceptance, so this may not be valid as a Part 36 when the judge is considering costs awards if the claimant wins. Essentially, I'm asking if they win, but are awarded less than £4.5k in a fast track court, would we have to pay all their costs, or would it be based on the £3k plus costs figure they put forward?
9. Would the fact the information is already in the public domain in being listed on 192.com have any effect on the case?
10. Would the fact that I obtained knowledge of her address whilst I was accompanying my wife in her work duties (even though I'm not employed by the business and wasn't working for her at the time) have an effect on my claim that I knew it from my own knowledge, or would it still be classed as obtaining the information from work-related purposes?
11. Would the fact that we can prove the claimant made false statements to us regarding her reporting the dog to the dog warden, and therefore broke the law by not doing so, have an effect on her claim?
12. I'm confused by the solicitors statement regarding the CBT treatment & special damages - could anyone explain??
Any and all thoughts / assistance / guidance would be appreciated.
We are also seeking a dog loving solicitor / barrister who might be willing to take our case on as a pro bono or conditional fee agreement - any suggestions for this would be welcome. All I wanted to do was reunite a stolen dog with a little girl and all this crap has been landed on us. Thanks for taking the time to read all of this!
The essential details of the case are as follows (this is a long, but interesting read - please read on, with some questions at the bottom):
- My wife's dog walking business is a very small, sole trader firm. I run my own events business and am not employed by her at all and have never received any payment, however I have walked dogs on occasion for her as a favour if she needed help or couldn't work for whatever reason.
- The claimant used to work for my wife as a sub-contractor. She left in early 2020 after she had made baseless accusations against another member of staff. Following this, we learned that whilst she was working for us, she had disclosed to this member of staff that she had 'found' a dog on the side of the road in a nearby village and had seen a Facebook post from the owners looking for the dog. She also revealed the name of the dog. She stated that she wasn't going to give the dog back as the owners were gypsies and the dog obviously wasn't being cared for. She did not report the dog as a found dog to the dog warden. By making the accusations against the other staff member, we now feel she was trying to get rid of her due to her disclosure.
- We were told about this by the staff member in Oct 2020 who had found the Facebook post, which showed the owners to be desperate to find the dog and as far as we could see the dog looked like it was a valued member of the family. The family are from the traveller community but live in a house and the dog belonged to their little girl. We decided not to do anything about it at this stage as my wife was due to give birth to our little girl. However, a few months later I decided that it wasn't right for this little girl to be without her dog and wondering what had happened to it, so I messaged the owners on Facebook to firstly establish some facts to corroborate that it was in fact the same dog (name, time it went missing, images etc). After the owner confirmed that the dog in question was theirs, I went to the Police and reported it to them. I gave them the claimants name and address, which I knew from my own knowledge as I had attended the property on at least two occasions, as I was in the car with my wife as she dropped some keys for clients houses through her door. I was accompanying her at the time as her mental health was in a very bad way. She also reversed her car into one of the claimant's neighbours cars on one occasion, and at such incident the claimant had seen that I was accompanying my wife in the car.
- The Police did not take the matter seriously and although they contacted the claimant, they didn't take it any further. We felt there was an air of prejudice about the dog originally belonging to travellers and also a sense that we were doing this out of some sort of malice (we weren't). When I contacted the Police a couple of weeks later to get an update, I asked whether I would be doing anything illegal or wrong by passing the claimant's name and address over to the dog owners so they could resolve the matter between them. I was told that this was fine as it would be a civil matter between them to settle ownership of the dog. I have an audio recording secured from the Police of this conversation.
- On the back of this, I gave the name and address to the dog owners. They tried to contact the claimant via Facebook messenger however they were blocked by her. Following this the husband and his young daughter went to the property to ask for the dog back. The claimant is alleging that during this visit, the husband made threats to her with words to the effect of 'I'm a travelling lad and I know people'. The police were apparently called, with the husband and daughter asked to move on, without any arrests being made. They have stated that the Police have put a 'marker' on their property, but have offered no evidence for this. As far as we know, the claimant still has this dog. The husband has stated to me that he didn't threaten anybody. I've encouraged them to make a civil claim for the dog but they haven't as of yet.
- Following this, the claimant accosted my wife in a public park with the opening line being 'How dare you send gypsies to my door!'. Apparently the young daughter had given my name as the person who gave them the address. The claimant then went on to accuse me of being an abusive husband, and when my wife denied this, stated 'Well how come you called me instead of him when you were suicidal?!', referencing a point in her life a couple of years earlier when my wife was going through some very serious mental health problems. All of this was played out in a public park, in front of members of the public and the claimant's new boss, who also runs a dog walking firm in the town. This made her extremely upset and she sent an email to the claimant's new boss that afternoon stating her side of the story, however she included a line which was factually incorrect as her head was mashed after the horrible incident earlier in the day. She stated 'I regret giving my husband the address to give to the owners'. This is not the case at all. We feel that due to the bullying which she endured and being berated by the claimant, she was in an emotional state, confused and upset. She will address this within her witness statement.
- During this altercation, my wife asked the claimant twice whether she had reported the dog to the dog warden, which she confirmed that she had on both occasions. We have an audio recording of this conversation. We have a letter from the local dog warden who has confirmed this is not the case. They keep a statutory register of dogs who are reported to them and the people who report them, which is free and available for the public to see.
- Moving on, we received a pre-action claim in June 2021 from the claimant which was very much an intimidation tactic to get an immediate settlement from us, which they put at above £7000, even though they didn't even lay out a claim amount. They also stated that if we didn't pay up within 14 days, they would 'instruct a psychologist who will conduct a medical report which will outline the psychological injuries sustained by our client'. This language seems pre-emptive as if a diagnosis is just a matter of time. They stated the report would be payable by us and could cost around £1500. We consulted solicitors who basically told them that 'you've got no case, bugger off'.
- Following this we received a second pre-action letter of claim in sept 21, which included a psych report from an expert witness, who diagnosed the claimant with PTSD. This diagnosis was done purely on the claimant's self-report without consulting her GP records, despite her disclosing that she had suffered from anxiety only a year earlier. The expert witness recommended 10 sessions of CBT therapy. We were never given any choice of several expert witnesses for them to instruct, which we've since discovered is against pre-action protocol. Included alongside the report was an invoice from what seems to be a medical services agency, let's call them B&Q Medical Services Ltd (not real name). This invoice was for an Initial Assessment (£400), 10 sessions of CBT (£2000, which is a hugely exaggerated cost for CBT therapy) and a discharge report (£300), totalling £2700. Investigations into this medical agency have revealed that the company is actually owned by the father and business partner of the claimant's solicitor! He is not a director of that medical agency, but is a joint director of another business with his father. We have also uncovered the fact that the address listed on the invoice (which is 100 miles away from our town) is also the address of a run down discount cash and carry shop, which is owned by the solicitors father! Each business also shares the same phone number. In another breach of pre-action protocol, they never asked our permission to use a medical agency to instruct an expert witness. The solicitor and his father are also listed on the electoral roll and 192.com as being at the same residential address. All of this surely constitutes a massive conflict of interest in the diagnosis and treatment of the alleged PTSD?
- Following this, our solicitors instructed a barrister to assess our case and write a substantive letter to the claimant's solicitors, raising a number of points including:
- Stating that although I have helped my wife on occasion, I am not an active member of the business nor am I employee, servant or agent of the business and therefore principles of vicarious liability do not apply
- My knowledge of the address came from my own knowledge having attended the property, not from recorded information, and as such falls outside of the data protection regime
- If it was established that the business made the disclosure, it would have a lawful basis to do so under UK GDPR Article 6(1)(f) as there was a legitimate interest in the third party locating their dog
- Should the disclosure be found to fall within the data protection regime, it would in any case be covered by the exemption in Schedule 2, Part 1, Article 5 of the DPA 2018 which permits disclosures of personal data where it is required to be disclosed in connection with legal proceedings. This includes prospective legal proceedings, the obtaining of legal advice or where it is otherwise necessary for the establishing, exercising, or defending of legal rights. This would clearly apply given the civil dispute between the third party and the claimant regarding the ownership of the dog.
- All that was disclosed was the claimant's name and address, which is not sufficiently private in nature to engage Article 8 ECHR rights and therefore misuse of private information does not arise. It is also information which is generally publicly known and/or accessible in any event, for example on the electoral roll and on websites such as 192.com. To confirm, the claimants address is listed on 192.com
- The alleged actions of the third party were not reasonably foreseeable, are too remote from the disclosure and break the chain of causation.
- Points regarding the medical report and lack of medical records are raised, as well as a request for the letter of instruction to the expert witness and a request to confirm whether the claimant is willing to provide us with access to her medical records for review, with a view to us asking Part 35 questions and / or instructing our own expert.
Not one of these points or others raised in this correspondence was responded to, which again is a breach of pre-action protocol. However, this did have the effect of reducing their settlement offer down from £11500 plus costs, to £5000 plus costs. This was eventually reduced to £3000 plus costs, which we countered with £3250 all in. They rejected and stated their offer stood. We ignored it and they issued proceedings in January 2022, claiming no more than £10k, but with more than £1k for personal injury so have sought an allocation to the fast track court, which has been proposed by the court prior to our submission of the Directions Questionnaire, which we are in the middle of. They have submitted theirs and have only listed the claimant and her new boss as witnesses in the case. Yesterday, we submitted a final settlement offer of £4.5k all in, in a commercial decision just to try and get rid of this, which they rejected within an hour, stating that their costs alone were way above that figure. The expert witness advertises his services on the internet and his standard fee for a medical report is £380 & VAT. In the email we received yesterday from the claimant's solicitor, they detailed the costs incurred so far and stated the medical report fee was £1250! However, they didn't list the CBT treatment. When we questioned this, he stated "The treatment would not be a disbursement however it would be part of the Claimants special damage claim. Given that there is no special damages claimed from the stage of proceedings being issued, it has not been included within the claim"
We have an absolutely brilliant defence document, put together by one of the leading experts in GDPR law in the country, however we have dis-instructed the solicitors as it was costing us a fortune and we wanted more management of the case with a direct access barrister, which we are currently seeking.
Questions I have:
1. What is your assessment of the case and their claim?
2. What is your assessment of the defence we have put forward and our chances of success?
3. What is your assessment of the points put forward regarding exemptions under GDPR / DPA?
4. Is it possible for a personal injury claim, particularly one of a psych nature, to have any robust merit when it is based solely on a self-report within a psych report from an expert witness, with no corroboration of the incident which is alleged to have caused the PTSD? I would find this to be staggering if this is the case.
5. Thoughts on the conflict of interest between the solicitor and the medical agency in regards to the instruction and treatment of the alleged PTSD - is this behaviour by the solicitor something that should be reported to the SRA?
6. Can my wife be held liable for this alleged incident which apparently caused this PTSD when the alleged threats were made by a third party completely out of her control, especially when it was I who passed on the information and not her?
7. The severity of these alleged threats seem to be predicated on a prejudicial and stereotypical view of the gypsy traveller community - would this have any impact in our case?
8. In terms of a settlement offer we have made, it was proposed under CPR Part 36, however I am unsure if it would be valid under Part 36 rules as it was a whole figure which included costs, interest, vat etc, rather than £4.5k plus costs. A friend of mine who has just come out of law school has said that a Part 36 offer needs to include any costs accountable up to the point of acceptance, so this may not be valid as a Part 36 when the judge is considering costs awards if the claimant wins. Essentially, I'm asking if they win, but are awarded less than £4.5k in a fast track court, would we have to pay all their costs, or would it be based on the £3k plus costs figure they put forward?
9. Would the fact the information is already in the public domain in being listed on 192.com have any effect on the case?
10. Would the fact that I obtained knowledge of her address whilst I was accompanying my wife in her work duties (even though I'm not employed by the business and wasn't working for her at the time) have an effect on my claim that I knew it from my own knowledge, or would it still be classed as obtaining the information from work-related purposes?
11. Would the fact that we can prove the claimant made false statements to us regarding her reporting the dog to the dog warden, and therefore broke the law by not doing so, have an effect on her claim?
12. I'm confused by the solicitors statement regarding the CBT treatment & special damages - could anyone explain??
Any and all thoughts / assistance / guidance would be appreciated.
We are also seeking a dog loving solicitor / barrister who might be willing to take our case on as a pro bono or conditional fee agreement - any suggestions for this would be welcome. All I wanted to do was reunite a stolen dog with a little girl and all this crap has been landed on us. Thanks for taking the time to read all of this!
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