Damian Warburton v The Chief Constable of Avon and Somerset Constabulary
| Jurisdiction | England & Wales |
| Judge | Lord Justice Phillips,Lord Justice Males,Lord Justice Moylan |
| Judgment Date | 02 March 2023 |
| Neutral Citation | [2023] EWCA Civ 209 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-000479 |
[2023] EWCA Civ 209
Lord Justice Moylan
Lord Justice Males
and
Lord Justice Phillips
Case No: CA-2022-000479
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LUTON COUNTY COURT
HER HONOUR JUDGE BLOOM
G00LU844
Royal Courts of Justice
Strand, London, WC2A 2LL
David Hirst (instructed via Direct Access) for the Appellant
Robert Talalay (instructed by the Legal Services Directorate, Avon and Somerset Constabulary) for the Respondent
Hearing date: 10 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on Thursday 2 March 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives
In these proceedings the appellant (“Mr Warburton”) claims damages and injunctive relief against the respondent police force (“Avon & Somerset”) for alleged breaches of the Data Protection Acts of 1998 and 2018 (“the DPAs”) in respect of personal data relating to Mr Warburton held or formerly held by Avon & Somerset.
On 20 January 2022 Her Honour Judge Bloom (“the Judge”) struck out the claim in so far as it related to the period before 11 July 2019 (“the pre-July 2019 DPA claim”). The Judge made that order having held, in a reserved judgment dated 19 January 2022, that the pre-July 2019 DPA claim was an abuse of the process of the court within the principle described in Henderson v Henderson (1843) 3 Hare 100 as it could and should have been brought, if at all, in earlier defamation proceedings between the same parties (“the Defamation Proceedings”). The Defamation Proceedings had been settled on 11 July 2019 when Mr Warburton accepted a Part 36 offer from Avon & Somerset to settle the whole of the Defamation Proceedings for £20,000.
The Judge also summarily dismissed most of Mr Warburton's claim in relation to matters which post-dated 11 July 2019, refusing to do so only in relation to the continued retention of one piece of data, the claim in respect of which will proceed to trial in any event. To the extent that the Judge struck out or dismissed Mr Warburton's claim, she thereby allowed an appeal from the judgment of District Judge Ayers dated 14 May 2021 (and amended on 29 May 2021) in which he had refused to strike out or grant summary judgment in respect of any part of the claim, but granted Avon & Somerset permission to appeal.
Mr Warburton brings this second appeal against the Judge's decision to strike out the pre-July 2019 DPA claims, permission having been granted by Asplin LJ in respect of his two grounds of appeal, namely:
i) first, that the Judge was wrong to hold that the pre-July 2019 DPA claim had not been “raised” or “brought forward” by Mr Warburton in the Defamation Proceedings. Mr Warburton relies upon the fact that he had set out that claim in draft amendments to the Particulars of Claim in the Defamation Proceedings, which had been provided to Avon & Somerset and put before the court, although permission to amend had not been granted by the date of the settlement.
ii) second, that the Judge failed to recognise that the effect of accepting a Part 36 offer is the settlement of the pleaded claim, and only that claim, wrongly considering the pre-settlement correspondence. In the present circumstances, the settlement excluded the pre-July 2019 DPA claim, despite the fact that Avon & Somerset well knew that that claim was being advanced by Mr Warburton at the time, albeit not yet formally pleaded. Mr Warburton contends that it was not an abuse for him to take advantage of Avon & Somerset's “litigation mistake”.
The background facts
The following summary of the facts relevant to the appeal is drawn from the chronology agreed by the parties, the detailed account set out in the Judge's reserved judgment and the documents before the Court.
(i) West Midlands Police (“West Midlands”)
In 1998, whilst Mr Warburton was a probationary constable with West Midlands, he was investigated in relation to two matters, namely (1) that he had performed a striptease in the student bar; and (2) that he had racially abused Muslims, including a Muslim police officer. He left the force to join the army before any action was taken.
(ii) Avon & Somerset
In June 2004 Mr Warburton started work in the Crime Administration Support Unit of Avon & Somerset. In February 2005 he applied to become a Special Constable on that force. Vetting checks revealed various matters, including the allegations made while Mr Warburton was with West Midlands. Those allegations were recorded in a log completed by an Avon & Somerset officer, DC Beable, on 4 February 2005 and subsequently found their way into an intelligence file numbered 015/05 held by Avon & Somerset's Counter Corruption Unit (“CCU”). CCU files numbered 074/04 and 227/04 referred to a separate allegation of workplace misconduct by Mr Warburton whilst in Avon & Somerset's employ, namely, that he had put inappropriate pictures on a colleague's desk, an allegation recorded in an email sent by the colleague (Mr Tippetts of the Trials Unit) dated 3 February 2005.
Mr Warburton's application to become a Special Constable was refused, by which time he had left Avon & Somerset to become a legal academic.
In 2008 Mr Warburton made a public complaint on a Facebook site about a police sergeant who worked for Avon and Somerset, PS King, recorded in a CCU file numbered 112/09.
(iii) 2008 arrest
Also in 2008 Mr Warburton was arrested on suspicion of criminal damage. He was not convicted, but a record of the alleged incident was retained on the Police National Computer (“PNC”) and the Police National Database (“PND”). His fingerprints and DNA were captured and retained. In or about October 2015 the fingerprints and DNA were deleted from those databases.
(iv) Hertfordshire Constabulary (“Hertfordshire”)
In 2017 Mr Warburton applied to be a constable with Hertfordshire. He initially passed vetting and was to start as a constable in July 2017. However, after Avon & Somerset disclosed to Hertfordshire CCU files 015/5, 227/04 and 112/09, DC's Beable's log and Mr Tippet's email, the offer was withdrawn.
Hertfordshire disclosed to Avon & Somerset their vetting file for Mr Warburton (a “Viapoar”). The file disclosed what Mr Warburton had said when asked by Hertfordshire about the allegation of racism.
In December 2017 Hertfordshire provided Mr Warburton with copies of the material it had been sent by Avon & Somerset.
(v) The Defamation Proceedings
Mr Warburton commenced the Defamation Proceedings on 27 April 2018, claiming £167,992.57 as damages, alleging that the information supplied by Avon & Somerset to Hertfordshire was defamatory and untrue. He asserted that the libel had caused him special damage by way of lost earnings and, more generally, the loss of a police career.
Paragraph 1 of Mr Warburton's Particulars of Claim stated “This is a claim in defamation”, although in paragraph 5 it was asserted that Avon & Somerset's actions were also in breach of Data Protection Principles imposed by the Data Protection Act 1998. In its Defence Avon & Somerset stated its understanding that those assertions were “background only” and that no claim was made in respect of them. In paragraph 28 of his Reply, Mr Warburton confirmed that “There is not a claim under the 1998 Act brought as part of this action”, and that the matters referred to were “relevant to one aspect of proving the Defendant not to have access to qualified privilege, for reason of s.15(4)(a) Defamation Act 1996”.
Avon & Somerset applied to strike out the Defamation Proceedings, causing Mr Warburton to apply to amend the Particulars of Claim by application dated 19 September 2018. Amongst other substantial revisions, the proposed amended pleading (apparently drafted by Mr Warburton himself) included new data protection claims, complaining of the creation and retention of the various documents and database records referred to above and seeking aggravated and exemplary damages, declarations and injunctions.
On 17 December 2018, notwithstanding the proposed amendments, DJ Ayers struck out the Defamation Proceedings as being out of time and for failing to comply with the rules relating to the pleading of defamation claims. On 9 April 2019, however, the Judge allowed Mr Warburton's appeal and directed that the Defamation Proceedings, including the application for permission to amend the Particulars of Claim, be transferred to the High Court. The Judge further ordered Mr Warburton to file and serve “properly pleaded Amended Particulars of Claim which comply with the CPR and any relevant practice directions” by 7 May 2019.
On 7 May 2019 Mr Warburton filed and served completely revised draft Amended Particulars Claim, settled by Mr Hirst, counsel who appeared for him before the Judge and on this appeal. The draft pleaded two distinct claims: (i) a defamation claim, seeking general damages, including aggravated damages; and (ii) a data protection claim, seeking compensation under the DPA 1998 and/or damages for breach of statutory duty. The draft further sought an injunction to prevent further publication or an order that Avon & Somerset permanently erase all personal data about Mr Warburton.
(vi) Settlement of the Defamation Proceedings
On 23 April 2019, shortly after the Judge had allowed Mr Warburton's appeal and restored the Defamation Proceedings, Mr Hirst made the following offer to Avon & Somerset on behalf of Mr Warburton:
“Erasure/permanent hard deletion of all of the evidence logs complained of.
Undertaking not to disclose again to any third party.
Compensation of £25k to reflect the extreme distress, hurt and depression he has suffered for the last two years as a result of the...
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