Johnson v Medical Defence Union Ltd

JurisdictionEngland & Wales
JudgeMr. Justice Laddie,MR JUSTICE RIMER,the Honourable Mr Justice Rimer
Judgment Date04 May 2006
Neutral Citation[2006] EWHC 1649 (Ch),[2004] EWHC 347 (Ch),[2004] EWHC 2509 (Ch)
CourtChancery Division
Docket NumberCase No: HC 03 CO 0538,Case No: HC03C00538,Case No: HC 03 C 00538
Date04 May 2006

[2004] EWHC 2509 (Ch)

IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

The Honourable Mr. Justice Laddie

Case No: HC 03 C 00538

David Paul Johnson
Claimant
and
The Medical Defence Union Limited
Defendant

Mr. Ashley Roughton (instructed by Messrs. Charles Russell) for the Claimant

Miss Jacqueline Reid (instructed by Messrs. Fladgate Fielder) for the Defendant

Hearing date: 1 November, 2004

Judgment Approved by the court for handing down

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.

Mr Justice Laddie

Mr. Justice Laddie
1

This is the judgment on a further interim application in an action brought by David Paul Johnson, a consultant orthopaedic surgeon, against the Medical Defence Union ("the MDU"). I set out the background to this action in a judgment dated 20 February of this year on an earlier interim application. Insofar as necessary, I repeat the relevant facts below.

2

The MDU is a body which provides medico-legal advice and support to its members, who are all members of the medical profession. There are at least two similar organisations offering similar services to medical practitioners in this country. One of the services provided by the MDU is access to professional indemnity insurance, written by a major insurance company. MDU members obtain a discount on their premiums. This policy is, so I understand, only available to MDU members. Insurance is also available through other insurance companies outside this discounted scheme.

3

The articles of the MDU contain a number of provisions in accordance with which it can refuse to continue the membership of any member. In particular, Article 11(a) purports to bestow on the MDU's board of management an absolute discretion to refuse to renew the membership of any member subject to a requirement to give 42 days prior notice.

4

In January 2002, the MDU decided not to renew Mr. Johnson's membership, in accordance with the provisions of Article 11(a). This had obvious repercussions for Mr. Johnson. He was forced to find alternative insurance cover because he was no longer eligible for the special insurance available through the MDU. Furthermore, Mr. Johnson was extremely concerned that what he regarded as his expulsion from the MDU would be likely to convey to others, including medical colleagues, the impression that he was either incompetent or had done something wrong which was sufficiently grave to justify exclusion from the MDU.

5

Mr. Johnson has been in practice for over 20 years and in all that time he has never been sued for negligence. Furthermore, in that period there have been only two occasions on which he has been reported to the General Medical Council. On both, the complaint was dismissed at a preliminary stage. He says that he is a highly competent surgeon and that, until January 2002, he had an unblemished reputation. That was changed, in his view, when he was excluded from the MDU.

6

The MDU denies that it has ever impugned Mr Johnson's competence as a surgeon. Nevertheless, it says that it was entitled to refuse to renew his membership.

7

The MDU's decision was based upon its assessment of certain information concerning Mr Johnson. He believes that that amounted to the improper processing of data relating to him which was not only damaging but also actionable under the provisions of the Data Protection Act 1998 (" DPA"). In order to better enable him to launch his claim, in January 2002 Mr. Johnson made what is known as an "access request" of the MDU under section 7 of the DPA. This action was commenced a year later. Mr Johnson said that the MDU failed to comply properly with his access request. That was added as one of the claims in the action. It was that assertion which lay behind the application which I heard, and in respect of which I gave judgment, earlier this year. In the terminology of the DPA, Mr. Johnson is the "data subject" and the MDU is the "data controller". Some of the information held by the MDU is "personal data" relating to Mr Johnson.

8

In my earlier judgment I explained the relationship between the substantive claims made by Mr Johnson against the MDU and his claim relating to the access request as follows:

"10. Mr. Johnson seeks three major forms of relief. First, because he considers the MDU to have failed to respond properly to his access request of 22 January 2002, he claims relief pursuant to section 7(9) of the DPA. That is to say, he asks for an order requiring the MDU to comply properly. Second, he applies under the provisions of section 10(4) of the DPA for an order, in effect, to prevent the MDU from improperly processing personal data about him and an order under section 14(4) of the DPA for the rectification, blocking or destruction of certain data. Third, he seeks financial compensation under the provisions of section 13(1) and (2) of the DPA for damage suffered by him and distress caused to him by the allegedly improper processing by the MDU of his personal data.

11

Logically, the second and third heads of relief are dependent upon an identification of all personal data concerning Mr. Johnson processed by the MDU and a knowledge of how those data were used by the MDU. For that reason, at a case management conference before Master Moncaster on 12 August 2003, the parties agreed that the question of compliance with the access request should be dealt with as a preliminary issue. Accordingly, the Master made an order that the following preliminary issue be determined:

'Whether and to what extent the defendant has complied with its obligations under section 7 of the Data Protection Act 1998, pursuant to the request made by the claimant of the defendant and dated 22nd January 2002.'"

9

In the application leading to my judgment, Mr Johnson said that the MDU had a number of documents which contained references to him. Some had been disclosed to him by the MDU, sometimes with redactions. Others had not been disclosed at all. He argued that all the non-disclosed documents were his personal data and that, pursuant to his access request, he was entitled to see them and to have the redactions removed. The MDU argued that it had fully and properly complied with the access request. The purpose of the preliminary issue ordered by the Master was to determine whether the MDU was correct or whether further material should be disclosed.

10

In my judgment of earlier this year, I held that the above question should be answered in the affirmative. The MDU had complied with its obligations under s 7 and no further documents need be supplied to Mr Johnson pursuant to his access request. The major ground for that decision was that the documents in issue were not and did not contain "personal data" of Mr Johnson. This was for two reasons. First the documents were held by the MDU in manual form and without sophisticated indexing. This meant that they were not recorded as part of a "relevant filing system" as required by s. 1(1)(c) of the DPA. For that reason they were not "data" within the meaning of the DPA and therefore not personal data. Second, many of the documents did not focus on Mr Johnson or were not about him. They were therefore not "personal" in the sense necessary to constitute personal data. On both of these points I placed particular reliance on the judgement of the Court of Appeal in Durant v. The Financial Services Authority [2003] EWCA Civ 174, [2004] FSR 573.

11

In the result, Mr Johnson was refused sight of the additional documents. I refused permission to appeal. So did the Court of Appeal.

12

The action has proceeded and a trial is now scheduled for January of next year. At a recent hearing before Master Moncaster, directions were given which required Mr Johnson to put in an amended Particulars of Claim within the next two weeks. The result is that the final definitive claim made by Mr Johnson has not been pleaded and the MDU has not had an opportunity to respond to it. Notwithstanding that, Mr Johnson has launched the current application, the major part of which consists of an application for specific disclosure. The disclosure sought is very wide. I do not understand Mr Roughton, who appears for Mr Johnson, to dispute that, in substance, it covers all the documents which were the subject of his client's earlier unsuccessful application following from the access request.

13

This has given rise to a point which may be of some general importance in DPA cases. Mr Roughton argues that his client is seeking relief from wrongful processing of his personal data. His right to bring proceedings is created by the DPA but the conduct of such proceedings has to be in accordance with the provisions of the CPR including, in particular, the obligation on the parties to give disclosure of documents. That is what his client seeks here. The fact that Mr Johnson had unsuccessfully sought access to the very same documents through the regime created by s 7 of the DPA is more or less irrelevant.

14

Miss Reid, who appears for the MDU, does not suggest that the earlier application for disclosure makes this application an abuse of process (see Henderson v Henderson (1843) 3 Hare 100 and Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581). She argues that the statutory provisions which Mr Johnson used in his first application for sight of these documents is designed to balance the interests of the data subject (Mr Johnson) against those of the data controller (the MDU) and third parties. This includes express limitations on disclosure which the current application, if successful, would undermine. The legislature has indicated that disclosure should not be ordered in a case like this. Even if the court retains jurisdiction to...

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