Abayomi Sofola and Lloyds TSB Bank
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 27 June 2005 |
| Neutral Citation | [2005] EWHC 1335 (QB) |
| Docket Number | Case No: HQ04XO2221 |
| Court | Queen's Bench Division |
| Date | 27 June 2005 |
[2005] EWHC 1335 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Tugendhat
Case No: HQ04XO2221
The Claimant in Person
Sarah Palin (instructed by Cameron McKenna) for the Defendant
Hearing dates: Wednesday 6th April 2005
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
There is before me an appeal by permission of Mitting J against the order of Master Tennant dated 5 th November 2004 striking out the Claimant's claims pursuant to CPR Parts 3.4 and 24.2. The Master's Order is stated to be made under both Part 3.4 (no reasonable grounds for bringing the claim) and Part 24 (which is set out below).
Mitting J's Order of 2 February gave permission only in respect of one of a number of claims, namely the claim for injury to the Claimant's reputation by reason of an alleged slander which took place on 3 June 2004.
Unfortunately no reasons are available for the judgment of Master Tennant. Ms Palin attended the hearing, and she has informed me that the Master did not give any formal reasons. I have, since the hearing, and at my invitation, been provided with a transcript of the reasons for the order of Mitting J, in circumstances described below. Since the hearing there have also been two exchanges of written submissions at my invitation, as explained below.
The background and the facts alleged by the Claimant include:
i) On 3 June 2004 he went to the Bank to pay some bills. He had written two cheques at home one for BT in the sum of £132. He handed this to the cashier, together with both bills that he wanted the Bank to pay and the other cheque.
ii) While the cashier was swiping the cheques through a machine, the Claimant decided to ask her to tell him the balance on his account. In response to that request, the cashier asked him for proof of identity. He offered a number of cards, which were not acceptable, and then she asked if he had a driving licence. He did have on him a colour photocopy of his driving licence, which he handed to the cashier.
iii) The cashier handed this to a supervisor, who came to the counter and asked the Claimant for his signature, which he gave to her twice over. She then gave him the balance on his account, which was more than £1,500 in credit.
iv) The Claimant then asked for the return of his license document. The cashier told him that there was a note on his account and that the supervisor was checking with his branch. He was asked to wait, and did so for about 45 minutes.
v) The police then arrived and he was kept waiting or talking in public for a further 20 to 30 minutes. The police officer told the Claimant that the supervisor had told him that the Claimant had had a mortgage offer withdrawn by the Bank in 1996 after he had been sacked for fraud. The Claimant said it was untrue that he had been sacked for fraud. The police accepted that the copy of the licence was a photocopy and not a forgery, and that he was not trying to withdraw money with it. They then left.
vi) There was at that time a record on the Claimant's file with the Bank which was dated 31 October 1996 and which read:
"Phone call received from Lisa Morgan at Customer Care in Birmingham, regarding an ongoing complaint by Mr Sofola in respect of his declined mortgage application. After an Offer Letter had been issued, but prior to completion of the mortgage, the Bank discovered that Mr Sofola had been dismissed from his job for alleged fraud and Homeloans withdrew the offer of advance".
There was subsequently added to that file the following entry dated 3 June 2004:
"customer came into Camberwell green branch to withdraw funds using a photocopy of a drivers licence. Due to previous notes on screen the police were called. Police advised no offense had been committed. Customer requested to speak to the manager to discuss matter further. ve"
THE CLAIM
The Claimant complained to the Bank. By letter dated 7 July 2004 the Bank wrote a letter including:
"You were unhappy that on the day in question the staff in the branch were unable to see that the document you produced for identification was a photocopy of your driving licence and not a forgery. It was because of this together with information that was contained on your account notes that the police were called. Please accept my apologies… I will arrange to have the information removed from your account notes …
You have also pointed out that our records are incorrect as it is noted that you came to withdraw funds from your account when you say that you did not…"
In the Claim Form, settled by himself, the claimant alleges:
i) Unlawful processing of data, identifying the Data Protection Act 1998, and in particular principles 1, 2, 4, 5, 6 and 7;
ii) Breach of confidence;
iii) Interference with his right under Art 8 and the Human Rights Act 1998;
iv) Damages for defamation.
The data protection principles, which are set out in Sch 1 to the Act, include:
"1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless—
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."
By s.1 of the 1998 Act "processing" is defined to include both holding and disclosure of information. By s.2 of the 1998 Act it is provided that:
""sensitive personal data" means personal data consisting of information as to-… (g) the commission or alleged commission by [the data subject] of any offence".
It is not necessary to set out Schedules 2 and 3 of the Act at this stage. In a letter dated 7 July 2004 the Bank wrote that: "This information was given to the police officers to help to prevent or detect crime… In paying your bill you have withdrawn funds from your account to credit your bill account". There appears to be implicit in this a contention that the Claimant had produced the document for the purpose of instructing the Bank to pay his bills ("…to withdraw funds using a photocopy of a drivers licence"), whereas one of the points made by the Claimant in his Particulars of Claim is that the document was produced only subsequently and for the purpose of obtaining an account balance (he also makes a separate point that the cheques did not constitute withdrawal of funds at all). If the Bank were saying that he used the photocopy driver's licence to support the request that his bills be paid (and it is not clear that they were, or are now, contending that), then there is an issue of fact. In a letter dated 12 August 2004 the Bank refer specifically to s.29 of the 1998 Act. This provides that personal data processed for the purposes of prevention or detection of crime are exempt from the first data principle (except to the extent to which it requires compliance with the conditions in Schedules 2 and 3).
Art 8 provides for respect for private and family life. Art 8 adds nothing to this claim, since the Bank is not a public authority, and, as between private persons, such as the Claimant and the Bank, the 1998 Act gives substantial effect to its provisions.
In the Particulars of Claim he claimed damages or compensation. The essential averments in relation to 2004 are:
i) The bank officials made false statement to the police
a) When they called the police, that the photocopy of his driving license which he had provided to them was a fake;
b) After the police had arrived, the supervisor told them that he had "had a mortgage offer withdrawn by the bank in 1996 after [he] was sacked for fraud"
ii) That these allegations were false because it was not true that he was sacked for an alleged fraud and the photocopy was not a fake;
iii) That the bank officials said this maliciously, to attempt to justify their having called the police when they had no justification for having called them;
iv) The bank then entered a further statement on their records relating to June 2004, which he alleges is false in the respects set out in para 10 above.
Further, in relation to the period since 1996 the claimant alleges that the bank had caused him damage in 1996 by withdrawing the mortgage offer, and since then by "shar[ing] sensitive information" about him with other financial institutions. He states that he had been refused mortgages several times, and refused a current account by another bank.
The provision in the 1998 Act for compensation is in s.13, which includes:
"(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this...
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...an order. These remedies appear to be available independently of any claim for compensation: see e.g. Sofola v Lloyds TSB Bank [2005] EWHC 1335 (QB) at 92 As to the substance of the matter, I am prepared to proceed on the assumptions that the offending material was personal data and that bo......