The correct claimant in a DPA case

[ex1076]

Hi there,

I have a question on a technical point relating to a data protection case:

I made a request for disclosure for my then two-year old daughter's health records in June 2017 to a hospital Trust where she had spent most of her life at that point. The hospital has not fully complied and have been demonstrably negligent in fulfilling this request so I have begun proceedings to seek a court order for full disclosure.

Having made the original subject access request I am advancing the case as the claimant as opposed to a litigation friend on behalf of my daughter who is the data subject. The first part of the Trust's defence is that the case should be struck out as they say that the correct claimant should be my daughter.

We have already been to an allocation hearing and the judge was not particular impressed by this aspect of their defence, however, he didn't make an order on that point but suggested if they were going to pursue this point that they must submit an application sooner rather than later. However, I see this as being the main weakness in my case.

As far as I can see these are my options:

* Submit a reply with my directions questionnaire contesting this point of the defence
* Make an application for amendment of particulars to clarify the claimant
* Do nothing and await the outcome of any potential strike-out application and challenge a negative outcome
* Or any logical combinations of these

I am confident on the relative merits of the rest of my claim but I would really want to avoid this proceeding until the latter stages before failing on this point and ending up with a heavy costs sanction.

I would be very happy to hear any opinion, thoughts, or advice on this matter.

[des8]

Hi and welcome

I do not understand why the hospital trust should think is for your daughter to make the claim
As a parent with responsibility you have a right to see the information and as such logically you make the claim in your own name.

as a matter of interest did you complain to the Information commissioner?.

[pt2537]

The child can bring the claim in their own name but would need to be represented by a litigation friend. If i recall you would need to submit a form to the Court to be a litigation friend. Even if the Hospital is right, the Court can allow an amendment to correct this error rather than disposing of the Claim, so its not a strong point for the hhospital to take in my view.

[ex1076]

Thank you for the welcome DES8 and sorry for the delayed reply.

I agree that it is a weak defence and I would suspect that a successful strike-out application would be very unlikely as I would expect a reasonable judge to come to the same logical conclusion you have.

There is a lot of detail that I've omitted in my original post and happy to divulge more if it's helpful or relevant. I have complained to the ICO which has been a bit of a saga in its own right. Ultimately, their final position is that the Trust have likely breached the DPA98 but they claim not to have the authority to take enforcement action and that my remaining options are to complain to the PHSO or to commence proceedings (ignoring the fact I already have).

[ex1076]

Hi PT2537, I've never been involved in any form of litigation at all so I am grateful for your view.

I expect that, if it anything at all, this will be viewed as a minor procedural breach and a strike out would be excessive.

Directions are due to be filed this time next week and I am quite sure I will not argue this out in a reply and I do think think I will likely make an application for amendment of particulars, I'll try to remember to update this thread on the outcome of this particular point in their defence.

It was the judge's view that pre-trial disclosure should inevitably effect the aim of proceedings and bring an end to the matter. Given the difficulties I've had in obtaining disclosure for the past 18 months I'm slightly less optimistic.