WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Yes I noticed that too - seems (IMO) that courts are under some requirement to implement the EU directive on top of DPA, although TBH I've looked at the directive (and also Art 8 of the ECHR) and don't quite follow it. Is the issue that "damages" in EU terms include "moral" (ie, non-pecuniary) damage, and that UK courts have no right to disallow any claim for non-pecuniary damage under DPA?

If so, I hope we don't leave the EU...

For the complete press release (although it's quite brief);

http://europa.eu/rapid/press-release_IP-10-811_en.htm

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

This is an interesting passage form the judgment IMO

1. On 24 June 2010 the European Commission issued a press release announcing that it had issued a Reasoned Opinion to the UK (the second stage under EU infringement proceedings) requesting it to strengthen data protection powers. Notably, the press release recorded that
   "The right to compensation for moral damage when personal information is used inappropriately is also restricted. These powers and rights are protected under the EU Data Protection Directive and must also apply in the UK. As expressed in today's reasoned opinion, the Commission wants the UK to remedy these and other shortcomings."
2. Mr Tomlinson submits that "moral damage" is a recognised EU concept connoting the right to compensation for breach of individual rights where the rights are non-pecuniary or non-property based.

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Its an interesting case and decision, but I think you have to be careful not to apply one decision to all circumstances, this was a decision regarding the sharing of personal data the issuance of an incorrect default notice is about the financial implications, although I suppose you could alter the pleadings.

This aspect came up in one of the judgments already mentioned on this thread, cant remember which one, but the judge said that the issue of damages for sharing data in a misplaced DN would not produce sufficient damage to the consumer to merit a substantial loss, because the only people who would see it are the ones who accessed the file, and the facility for remedying this is contained within the act.

[pt2537]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

No you misread it. I did not say that noddy suffered no loss. And IMO it is madness to use MCOL for a complex claim - just gives the other side too much ammo, as surely you can see?

Is calling someone a fruitcake being rude? Aren't there more important issues to be discussing than something as trivial as this?

If you did use MCOL then the best option would be to cite Particulars of claim to follow.

Thats the best option. I think with these Default cases, each case must be judged on its own merits

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

The question is, how much weight does this carry in lieu of a full trial?

[Bankers Reform]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

OK, so a high court judge, in January 2014, at paragraph 103 in the judgement above, states that non-pecuniary damage is damage for the purposes of s.13 DPA.

That's it, surely? What county court is going to argue with that? Is this is the green light for "injury to credit" claims...?

:tinysmile_twink_t2:

Not necessarily so.

101. Since the meaning of damage under DPA s.13 is a question of law, the general rule might suggest that I should decide it, since damage (which Mr Tomlinson accepts means recoverable damage) is a jurisdictional requirement under ground (9): see para 14 above. However, unlike some jurisdictional issues of law (eg whether misuse of private information is a tort), the meaning of damage under s.13 is a question which might arise for decision at trial, if the permission to serve out is not set aside.

102. This is a controversial question of law in a developing area, and it is desirable that the facts should be found. It would therefore be the better course in the present case that I should not decide this question on this application.
103. I shall therefore not decide it. However, in case it is of any assistance in the future, my preliminary view of the question is that Mr Tomlinson’s submissions are to be preferred, and so that damage in s.13 does include non-pecuniary damage.


As I see it at this stage of the case the judge has not made a judgement but merely offered an opinion.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

OK, so a high court judge, in January 2014, at paragraph 103 in the judgement above, states that non-pecuniary damage is damage for the purposes of s.13 DPA.

That's it, surely? What county court is going to argue with that? Is this is the green light for "injury to credit" claims...?

:tinysmile_twink_t2:

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Yes but unfortunately the section 1 requirement must first be net.

Yes that's very true, although in Halliday it only needed to be £1 ... but I don't think this case has been heard yet anyway.

Oops, I stand corrected...

http://www.bailii.org/cgi-bin/markup...method=boolean

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

OK, although I wonder if "distress" (s.13(2)) could potentially be the non-pecuniary part...?

Yes but unfortunately the section 1 requirement must first be net.

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Holy cow, look what I just found...

http://www.collyerbristow.com/Defaul...&ctID=43&lID=0

Para 3;

An extremely important aspect of the case for data protection law is that Tugendhat held that that "damage" in section 13 of the Data Protection Act did not have to be financial loss; it can include non-pecuniary damage. If the case goes to appeal and his view is upheld, it could trigger a vast increase in data protection claims in England.

Does anyone know anything of this case? Could be useful...although there's a suggestion of an appeal...

[Lord_Alcohol]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Yes indeed but not the DPA,(financial loss) in those cases liquidated damages are assessed. loss of income, distress etc.

OK, although I wonder if "distress" (s.13(2)) could potentially be the non-pecuniary part...?

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Hmm

THIS has some interesting text from the House of Lords (as was) regards damages for POTENTIAL financial loss, which I would imagine a wrongful default could fall under?

Not really

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

I would encourage everyone to read and comprehend what Lord Nichols in the Appeal Court said...that a business damage sufferer and a consumer are no different.
The credit rating of individuals is as important for their personal transactions, including mortgages and hire purchase as well as banking facilities, as it is for those who are engaged in trade.

It is this put forward in my argument that swayed the Judge in our case.He is not just any Judge he is a High Court Judge and our case was the multi track over 3 days.

Sparkie

Yes it is a good read, though the relevance escapes me. The issue is remoteness, in a business arrangement the financial loss is easier to connect to the breach.

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Isn't there the concept of non-pecuniary damages in law? I seem to vaguely remember this, in which there is no actual financial loss (eg, someone wrongly imprisoned) but compensation nevertheless applies for the "damage" done to the individual.

Same with harassment - no loss but damages apply nevertheless.

Not quite sure where I'm going with this...

Yes indeed but not the DPA,(financial loss) in those cases liquidated damages are assessed. loss of income, distress etc.

[Sparkie1723]

Re: WON !! Richard Durkin v HFC / PC World supreme court judgment 26/03/14

Isn't there the concept of non-pecuniary damages in law? I seem to vaguely remember this, in which there is no actual financial loss (eg, someone wrongly imprisoned) but compensation nevertheless applies for the "damage" done to the individual.

Same with harassment - no loss but damages apply nevertheless.

Not quite sure where I'm going with this...

HI L/A....... its as I have put forward before the DPA is the poor mans Defamation Act but instead of the 3 year time scale.under the Defamation Act ( 1 year for Libel)...the DPA extends that time to six years.

Sparkie