David Paul Scott v LGBT Foundation Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 03 March 2020 |
| Neutral Citation | [2020] EWHC 483 (QB) |
| Date | 03 March 2020 |
| Docket Number | Case No: QB-2019-001754 |
| Court | Queen's Bench Division |
[2020] EWHC 483 (QB)
Mr Justice Saini
Case No: QB-2019-001754
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant in person
Robin Hopkins (instructed by DAC Beachcroft) for the Defendant
Hearing dates: 25 February 2020
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.
This judgment is divided into 7 parts as follows:
I. Overview — the Parties and the Disclosure [1–9]
I. Overview: the Parties and the Disclosure
This claim concerns the legality of an oral disclosure by LGBT Foundation Limited (“LGBT Foundation”) of certain personal information concerning the Claimant (“Mr Scott”) to his general practitioner (GP) on 25 July 2016.
LGBT Foundation is a charity which supports the needs of lesbian, gay, bisexual and transgender communities. It operates in Greater Manchester and provides a wide range of services including counselling, as well as advice in relation to health and wellbeing.
The information disclosed by LGBT Foundation (“the Disclosure”) to Mr Scott's GP was in due course recorded in his GP's records. The information was, in broad summary, as follows: LGBT Foundation had assessed Mr Scott as being at significant risk of suicide or other substantial self-harm, and that it was at that time unable to provide Mr Scott with the services he sought from the LGBT Foundation because of Mr Scott's ongoing drug use.
By Claim Form and Particulars of Claim issued on 15 May 2019, Mr Scott contends that the Disclosure was in violation of the Data Protection Act 1998, that it amounted to a breach of confidence at common law, and that it was contrary to the Human Rights Act 1998. He seeks damages in respect of these claimed wrongs from LGBT Foundation which are presently quantified in Mr Scott's Schedule of Loss as a sum in excess of £1.8 million. Mr Scott originally also sought relief for alleged deceit and misfeasance in public office arising out of the disclosure but he discontinued those claims on 3 September 2019.
Mr Scott argues that the non-consensual disclosure of his private and personal information undermined his autonomy and right to self-determination.
Mr Scott originally sought to access LGBT Foundation's services following his completion of a self-referral form received by it on 16 June 2016. The facts are addressed in more detail below at Section III, but it was in these circumstances that LGBT Foundation and Mr Scott came into contact, and in due course the Disclosure was made to the GP of information provided to it by Mr Scott because of their concerns as to his welfare.
Mr Scott brings these claims because he says the Disclosure caused him financial loss (in addition to distress). His evidence is that he was a nuclear safety consultant with high level security clearances and the vetting agency for these clearances would review his medical records. The vetting agency (UKVS) last reviewed his medical records up to 18 March 2016 (so, he submits, the vetting agency would not have received the medical record entry relating to the Disclosure). He says had a vetting interview on 17 October 2016 where he disclosed his drug use, being unaware at the time of the Disclosure made by the Foundation. Mr Scott says he received his security clearances in January 2017 which expired in January 2018.
Following GDPR coming into force in May 2018, Mr Scott requested his medical records, receiving the entry related to the Disclosure from his GP on 7 March 2019. He says the entry directly contradicts statements he made in his vetting interview on 17 October 2016 and he will be seen as having not been frank with UKVS. Mr Scott was intending to return to his line of work (after a long illness) but his career is, he says, “now finished” because of LGBT Foundation's wrongful disclosure to the GP. Hence, his claim for substantial damages.
By its Application Notice dated 4 October 2019, LGBT Foundation seeks summary judgment and/or a striking out of the claims. In short, it argues that there is no relevant factual dispute and the court can dispose of the claims on the basis of the evidential material presently at hand, and applying uncontroversial principles of law.
II. Legal Principles
I have taken the principles which apply to the summary judgment applications from the judgment of Hamblen LJ in Global Asset Capital Inc v Aabar Block SARL [2017] EWCA Civ 37; [2017] 4 WLR 163, a case in which reference was made to the now well-known judgment of Lewison J in Easyair Limited v Opal Telecom Limited [2009] EWHC 339 Ch at [15], as well as a number of other cases. I drew this case to the attention of the parties and they did not dissent from my suggestion that it contains all the principles relevant in this application.
As to these principles, the following are of particular relevance to the application before me. First, the court must consider whether the opposing party (here, Mr Scott) has a realistic, as opposed to a fanciful, prospect of success. Secondly, the court must avoid conducting a “mini-trial” without the benefit of disclosure and oral evidence and should avoid being drawn into an attempt to record conflicts of fact which are normally resolved by a trial process. Thirdly, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment but the evidence that can reasonably be expected to be available at trial. Fourth, some disputes on the law are suitable for summary determination. Generally, if the application gives rise to a point of law and the court is satisfied that it has before it all the evidence necessary for the proper determination of the question, the court can and should determine the point.
As to striking out, CPR 3.4 provides as follows:
“(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.
(2) The court may strike out a statement of case if it appears to the court —
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings; or
(c) that there has been a failure to comply with a rule, practice direction or court order.”
In the present case, having considered the written materials and oral submissions, there does not seem to me to be any real dispute of fact on points which matter; and the questions which arise, both on summary judgment and in relation to the CPR 3.4 application, are ultimately matters requiring the application of clear legal principles which can be decided now with finality and without the need for a trial.
I consider I am in materially the same position as the trial judge would be when it comes to resolution of the issues on liability. That point cuts both ways. If on the facts the Foundation has no answer to Mr Scott's claims he would be entitled in principle to judgment on those claims. Indeed, he has issued his own application for summary judgment to be heard in due course (but which is not presently formally before me).
I summarise the facts in Section III below. My summary is based principally on the contemporaneous documents supplemented with those parts of the witness statement of Mr Scott and that submitted on behalf of LGBT Foundation (the statement of Ms. Rossella Nicosia, Mental Health and Safeguarding Lead for LGBT Foundation) which seem to me to contain uncontroversial facts (and which have not been challenged in the pleadings or witness statement submitted by Mr Scott).
Mr Scott also very helpfully and realistically agreed in his oral submissions that (save in certain relatively minor respects and, potentially, in relation to HRA 1998 limitation) there was not any material factual dispute between the parties. The relevant events are narrow in scope and all took place within a few hours on a single day, 25 July 2016.
Certain of the material in the evidence before me goes into other areas of Mr Scott's private life (or details of names/information concerning medical professionals) which are not relevant to the discrete issues before me and I will accordingly set out only those matters which are central to this application and which I must set out in order for my judgment to be understood.
This approach will I hope explain why there are certain omissions in the summary below (where I have left out private matters I have used the indicator: “[deletion]”).
III. The Facts
Mr Scott completed a self-referral form on 30 May 2016 in order to access LGBT Foundation's services. This was received by LGBT Foundation on 16 June 2016. In the self-referral form, Mr Scott disclosed details of his mental health issues and substance use.
By way of relevant details (and excluding extraneous personal matters), Mr Scott stated in the form that although he had no current plans to “actively kill” himself, he was “seriously considering stopping taking my [deletion] meds because I just don't want to be alive anymore”. He also detailed a previous suicide attempt in 2015, and explained that he had recently been self-harming and continued to suffer from problems relating to drug use. Mr Scott expressed an interest in LGBT Foundation's Befriending Service and in Men's Events. These matters provided the basis for the more detailed questions which arose during the oral intake assessment which I set out below.
The self-referral form invited Mr Scott to provide details...
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