GDPR / Data Protection & PTSD Claim - all for trying to help reunite a stolen dog!

[dogwhisperer]

Hi, I'm looking for some assistance on a letter of action claim my wife has received from a former self-employed sub-contractor (called Mrs A) for her dog walking business. I have no involvement in the business aside from helping with a few dog walks when I can. It's a bit of a long story, so I will put the main points in bullet points:

- Mrs A left my wife's company in early 2020 following a dispute where she had accused another member of staff of smacking dogs. She offered up no witnesses for this, did not produce a written statement, the claims were fully denied and we had no reason to disbelieve the accused. Mrs A eventually left off her own volition after a complaint was made against her by a customer.
- We since learned that shortly prior to the accusations being made, Mrs A had confided in the staff member in question that she had found a dog on the side of a road and intended to keep it, despite seeing a Facebook post from the owners who were looking for it. The dog belonged to a little girl. She told the staff member the name of the dog and that it was obvious from the 'crap Facebook post' that the owners weren't looking after it properly as they were 'gypsies'. My wife wasn't made aware of this conversation but was aware Mrs A had found the dog and assumed she had gone through all the necessary legal procedures as she had apparently worked for the RSPCA for a long time as a volunteer.
- Following Mrs A leaving, the staff member decided to investigate further and searched for the name of the dog on local Facebook groups in the area it was found. She found the Facebook post in question quite quickly and it was obvious that the dog was a much loved member of a family. She told us this information and we decided to initially contact the owners via Facebook to make some checks to ensure it was the same dog. We then contacted the Police with this information as we wanted to go through the correct channels. To confirm, the family in question are from the traveller community, however they live in a house and have as much rights to their dog back as anyone else. To be honest, we feel the Police didn't really take this seriously. One of the first questions the PC who called us to follow up the initial report, asked us why we didn't just tell the owners where the dog was. He also made some prejudicial remarks about Gypsy Travellers to the effect of 'You know they often just lave dogs on the side of the road when they move don't you?'. We followed this up with a call to get an update approx 2-3 weeks later, where we were told that the Police had spoken to Mrs A and weren't taking things further.

- I must make clear here, that there is absolutely no doubt that this is the dog the family are missing.

- I asked the Police call handler what our position was, as essentially the family of a missing dog know that we know the location of the dog, which put us in a difficult position. I asked if we were doing anything wrong or illegal by giving the name and address of Mrs A to the family in question. I was told we would not be doing anything wrong or illegal.

- On this basis, I decided to give the family the name and address of Mrs A. This was on April 30th 2020. Prior to giving him the name and address, he assured me that there would be no violence, threats or anything of that nature - he didn't want any trouble, he just wanted his daughters dog back. Approx two weeks later, the owner and his young daughter went to the property to ask for their dog back.

- We have now received a letter before action claim from Mrs A, stating that we have breached data protection / GDPR regulations, the human rights act and misuse of private information. She is claiming damages of £5k for this, £3.3k for PTSD due to the owner allegedly being very confrontational and making 'threats' against her (which according to the claim amount to him saying that 'he is a travelling lad' - there are no witness statements as of yet to back this up) and £4.2k for therapy for the treatment of this so-called PTSD. The claim is directed against my wife and her sole trader business, not me. We originally received another letter before action claim a couple of months earlier which was rebuffed by our solicitor, where they offered a settlement fee of £7k. In that letter, it states that the owner said it was me (not my wife) who gave him the details. So, Mrs A knows it was me, yet she is claiming against my wife. I had the address as she had given it to me to go to the Police initially. Now, she has had a psychologists report stating that she has PTSD from this incident, which is absolute bloody nonsense. Included in the new claim is a pro-forma invoice from a company (lets call them B&Q Medical Services Ltd - not real name), which includes £400 for the initial assessment, £2000 for 10 sessions of CBT therapy and £300 for a discharge report. Firstly, the cost of the CBT therapy is extortionate - average cost is about £50 a session. Secondly, we have investigated this company and found that the owner is the father of the solicitor in charge of the case! They have no history of providing medical services as far as we can see, the owner is not a registered therapist and the father and son jointly own another company called B&Q Properties Ltd! (again, not real name). Thirdly, the cost attributed to the CBT therapy in this pro-forma invoice is £2700, not £4200, so we feel that these costs are being fraudulently manufactured to take the total claim above the £10,000 small claims mark, meaning it would go into a higher level of court where we might be liable for their legal fees if we lost the case. We feel there is something definitely dodgy going on here. The solicitor in question was also reprimanded by a Solicitors Disciplinary Tribunal in 2018 for authorising over £200,000 worth of payments to an unlicensed claims management company.

- To confirm, as far as we are aware the dog owners have never been to the property since. Again, as far as we know, Mrs A still has the bloody dog!

The main questions I have are as follows:
- Can my wife be sued for the actions that I took in giving the name and address to the owners in regards to the alleged GDPR breach? She has never had any contact with them. She gave me to address to go the Police with, plus I had been to the property previously with my wife to drop some client house keys off so I knew the address anyway.
- Can my wife be sued for the alleged threats made by the owner of the dog (a third party) and the resulting so-called PTSD?
- Would there be a legitimate break of causation defence made in either of these actions?
- Would we be able to claim that we could not have reasonably foreseen the alleged acts / threats of the third party the fact that it was suggested to us by the Police to give the address directly to the owners and the owners confirming to us in writing there would be no threats, violence or anything of that nature, and that my wife should not be held responsible for these acts or the so-called resulting PTSD?
- Can the legitimacy and independence of this psychologists report be called into question given that it's being charged to us by a company which the solicitor obviously has both a family and financial interest?
- Can the legitimacy of the exorbitant claim costs being made be characterised as fraudulent and vexatious given the nature of the relationship between the company owner and the solicitor, especially given the fact it pushes the claim above £10,000 and above the small claims court? Can anything be done with regards to this?
- Have there any been any cases of a similar nature with precedent financial claims i.e. an amount paid for someone giving a person's name and address to a third party?
- Would it not be correct that if Mrs A wants to make a claim against anybody in this regard, it should be against myself for the data protection / misuse of private info side of things, and the dog owner for the alleged PTSD?
- If we went to court and the judge ruled in their favour but awarded substantially less costs, would we still be likely to have to pay their legal fees? Would this be the case if it was put through the small claims court?

Any assistance in this thread would be greatly appreciated. All I wanted to do was help reunite a lost dog with its owners and it's landed all of this on us!! Thanks in advance.

[echat11]

Hi Dogwhisperer

Have you contacted the police to get the 'recording / notes' of the conversation where they say 'I was told we would not be doing anything wrong or illegal?

'I asked the Police call handler what our position was, as essentially the family of a missing dog know that we know the location of the dog, which put us in a difficult position. I asked if we were doing anything wrong or illegal by giving the name and address of Mrs A to the family in question. I was told we would not be doing anything wrong or illegal.'

If not you could send the police a SAR, they have 30 days to provide all the information on your contact with them, over the last 6 years.

https://legalbeagles.info/library/gu...ccess-request/

Is their solicitor abiding by the Solicitors Code of Conduct?

https://www.sra.org.uk/solicitors/st...conduct-firms/

[islandgirl]

I expect the issue is whether the knowledge from former employment should have been used. If someone saw a neighbour with a stolen dog then giving the address to the real owner would be no issue. The problem is that the name and address were known through employment. I believe this is why they are claiming from your wife who can legitimately say that she did not report the issue though she may have given the details to you to do so? I am sure you will get further advice here but it does seem like a very strange situation.

[echat11]

I would also contact the ICO, provide them details of the situation (concise), they can provide advice.

[Celestine]

For the 'PTSD' etc, the liability (if any) would lie with the dogs legal owner who approached her and 'caused the trauma'.
I am struggling mightily with how that liability extends to you because even with a data breach, such an outcome could not reasonably have been anticipated.
I agree that the employment status creates a possible issue with breach of personal data, however, your wife could defend on the basis that such a small business created familiarity between staff and family and that her (claimants) address became known (to you the husband) through that process rather than a rifling through files to uncover her personnel file. I'm also pondering whether the fact she was self employed helps at all in terms of duties of care...

[dogwhisperer]

Thanks for advice so far. We have contacted the Police to get hold of a recording of the second phone call, which they have sent over however there are some technical difficulties in accessing item which I'm trying to resolve with them.

Celestine - thanks for that. That is what we're thinking - how can my wife be sued for trauma caused by the actions of another third party? There was certainly no rifling through any personnel file; I've been to her house to drop clients house keys off before so I knew where she lived anyway.

[echat11]

These reports 'Now, she has had a psychologists report stating that she has PTSD from this incident, which is absolute bloody nonsense.' do they state that she can't do this or do that because of the PTSD allegedly suffered?, i.e. go shopping, go to the gym, dine out etc.

If so, maybe a Private Investigator can get to the bottom of her day to day activities, evidence that the claims are 'vexatious' and have no merit.

[dogwhisperer]

Hi Guys, I'm afraid to say that this case is still ongoing and has now got to the point where they have issued court proceedings to us and it has had a proposed allocation to the fast track court. The claim is for under £10k, but with a portion of that being for more than £1000 for personal injury.

We have had an excellent defence document written by an outstanding barrister. The crux of our argument is....
a) I'm not an employee of my wife's dog walking business and therefore no vicarious liability can be landed on her, based on the following:

a1) I knew the claimant's address from my own knowledge of having attended the property on a few occasions. Accordingly, it did not involve the processing of recorded personal data within the scope of the data protection regime in Article 2(1) of GDPR, but was the disclosure of information from my own knowledge. As such, the disclosure falls outside the scope of the data protection regime; the Defendant relies upon the case of Scott v LGBT Foundation Limited [2020] EWHC 483 (QB), which confirms that personal data has to be recorded, to fall within scope of the regime and a purely verbal disclosure is out of scope (paragraphs 52-64).

a2) The Defendant’s husband is not employed by the Defendant and was not acting as an employee, servant, or agent of the Defendant, when he made the disclosure to the missing dog’s owners. He was acting in an entirely personal capacity, for his own motivations, as a natural person. As such, the data protection regime does not apply to him, as he would fall outside of the material scope of the GDPR (see Article 2(2)(c) of the UK GDPR) and correctly, he has not been brought into these proceedings. In the circumstances, the Defendant is not vicariously liable for the actions of her husband, and the Defendant will rely upon the cases of WM Morrisons Supermarkets Plc v Various Claimants [2020] UKSC 12 and Ali v Luton Borough Council[2022] EWHC 132 (QB) in this regard.

b) If the court finds against this argument and that the disclosure was within the data protection regime, then there are exemptions within GDPR / DPA legislation which we are relying on, namely:

b1) The Defendant denies that they owe such a duty of care to the Claimant. No such duty exists separate to those obligations already within the statutory data protection regime, as per Warren v DSG Retail Limited [2021] EWHC 2168 (QB).

b2) The Defendant contends that there was a lawful basis for the disclosure under UK GDPR Article 6(1)(f), as there was a legitimate interest in the third party locating the Claimant in order to resolve a dispute over what was reasonably believed to be their dog.

b3) In the application of the legitimate interest, the Defendant relies upon the police advising the Defendant’s husband to contact the third party with the location of the Claimant, for the issue of ownership of the dog to be resolved. Further, the Defendant contends that the Claimant did not report the dog that she purported to have rescued as a stray to the dog warden/local Council, as required under the Environmental Protection Act 1990 and/or the Theft Act 1968.

b4) Further, if, contrary to the Defendant’s position, the disclosure is found to be in scope of the data protection regime, the Defendant contends that the disclosure would in any event be allowed by the exemption set out in Schedule 2, Part 1, paragraph 5 of the Data Protection Act 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. The Defendant avers that this would apply given the civil dispute between the third party and the Claimant regarding the ownership of the dog.

b5) To the extent that the Claimant establishes any contravention of the GDPR, which caused her any damage, the Defendant will rely upon the exemption from liability in Article 82(3) GDPR, that the Defendant is not in any way responsible for the events giving rise to the damage.

b6) The Claimant’s claim for misuse of private information adds nothing to the claim under the GDPR. The Defendant denies that the Claimant had a reasonable expectation of privacy in relation to her name and/or address. The disclosed information was anodyne, banal, information, which is in the public domain, and which is not of a sufficiently sensitive nature or type for a reasonable expectation of privacy to arise. The Defendant avers that the Claimant’s name and address is publicly available on the website 192.com and therefore is information that is not of a private nature.

What are people's thoughts on these points?

There is a fly in the ointment in that following an extremely upsetting altercation in a public place between the claimant and my wife (prior to any pre-action) where she accused me of being an abusive husband(!) and revealed extremely sensitive mental health / suicidal issues my wife had previously in front of the claimants new boss (another bloody dog walking company), my wife wrote an email to this new boss, whom she already knew, laying out the various issues she’d had with the claimant. In this she stated ‘I regret giving XXX(me) the address to give to the owners’. This is incorrect as I’d already given the address to the Police from my own knowledge, however she was extremely upset and confused after being bullied by this woman. They are using this as their main line of attack, as well as a psych report which states she has PTSD, which the ‘expert witness’ has diagnosed without reviewing any of her GP notes and based his opinion solely on her own self-report.

They have also broken pre-action protocol on numerous occasions by not responding to substantive points raised in correspondence, not presenting us with a selection of expert witnesses to choose from and using a medical agency (mentioned in original post) to instruct an expert witness without our permission.

We are seeking to have the claim knocked down to the small claims court by having the personal injury element struck out through raising the above points within the directions questionnaire.

However, we have also offered a part 36 settlement offer of £4.5k today, which was pretty much instantly rejected as they said their costs are in excess of that figure. They listed their costs to date, but interestingly these costs did not include any costs for the actual treatment of this PTSD, suggesting the claimant hasn’t received any CBT treatment for her alleged PTSD (which is nonsense). It’s our understanding that for the claimant to be awarded costs in a hearing, a judgement in their favour would need to be in excess of our part 36 offer of £4.5k – is this correct?

Any and all opinions / advice welcome.

Also looking for any pro-bono barristers / solicitors who might be willing to take on our case. Thanks.