Weaver and Others v British Airways Plc
| Jurisdiction | England & Wales |
| Judge | Mr Justice Saini |
| Judgment Date | 02 February 2021 |
| Neutral Citation | [2021] EWHC 217 (QB) |
| Court | Queen's Bench Division |
| Date | 02 February 2021 |
| Docket Number | Case No: QB-2020-000208 |
[2021] EWHC 217 (QB)
BRITISH AIRWAYS DATA BREACH GROUP LITIGATION
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Saini
Case No: QB-2020-000208
David Blayney QC, Andrew Nicol and Sophia Hurst (instructed by Excello Law Limited trading as PGMBM) for the Claimant
Anya Proops QC, Benjamin Williams QC and Rupert Paines (instructed by DWF Law LLP) for the Defendant
Hearing date: 2 nd February 2021
Tuesday, 2 February 2021
( 12.38 pm)
Judgment by Mr Justice Saini
I. Overview
This is a CCMC in the British Airways Data Event Group Litigation. My judgment addresses two discrete issues which have arisen within the course of the CCMC today: (i) the claimants' application to extend the “cut-off” date to join the litigation through entry on the Group Register; and, (ii) the recoverability of advertising costs incurred, and to be incurred, by the claimants' Solicitors, in publicising the claims in the media. The second issue arises as a matter of dispute in the costs budgeting process which the parties have agreed to apply to this claim. Before turning these issues, I will provide a broad overview of the proceedings.
The litigation concerns claims for damages brought against the defendant, BA, consequent upon a cyber-attack on BA's electronic systems that was identified in September 2018. That attack affected systems containing customer personal data on BA's website and on its mobile application.
By way of high-level summary, the damages claims brought against BA fall into essentially three parts:
(1) First, it is said that the attack resulted in the persons responsible for the attack obtaining identifiable customer data including (but not limited to) certain payment card data and, in turn, resulted in BA sending notifications to all of the claimants that their data may have been affected by the attack.
(2) Second, it is said that the attack succeeded as a result of BA failing to put in place appropriate or sufficient security measures aimed at safeguarding relevant data. It is said that that failure was a breach of BA's obligations under the General Data Protection Regulation 2016/679 and/or a breach of certain contractual obligations said to be owed to the claimants and/or a breach of confidence.
(3) Third, harm is alleged to have been suffered as a result of the said breaches. That harm is said to flow in terms of distress and/or pecuniary loss and/or loss of control of data.
BA denies the claim in its entirety and, specifically, also denies that the alleged breaches were causally relevant to the compromising of customer data. It also puts in issue whether any of the claimants have suffered compensable harm as a result of the alleged breaches.
II. Cut-off date
The relevant procedural history is as follows. On 14 June 2019, following correspondence with law firms representing potential claimants who were customers of BA potentially affected by this attack, BA issued an application for a Group Litigation Order (GLO).
On 4 October 2019, Warby J made a GLO (“the GLO”). Paragraph 29 of the GLO provided that in order to enter onto the Group Register, a claimant had to have issued and served a claim form (or have been named on an issued and served claim form), and the final date for such entry was specified as a cut-off date of 17 January 2021.
On the basis of the materials and arguments before me, it appears to be common ground that: (i) all parties agreed that there should be a cut-off date (it not being a mandatory requirement for such litigation); and (ii) the specific date was also agreed. Paragraph 9 of the GLO was accordingly made by consent and without argument. The fact that this matter was dealt with by consent means that there are no facts before me which might expose the reasons behind the making of this part of the order.
I was however told that the date agreed was intended to be a date expiring 12 months following service of the intended generic Particulars of Claim. The cut-off date was in due course extended once, again by consent, and will expire on 3 April 2021. At the CMC on 25 November 2020, I directed a split trial of liability and quantum issues.
The claimants apply to extend the cut-off date to a date expiring 1 year after the proposed trial on liability in the summer term of 2022, and say that this period is intended to allow for final determination of the trial on liability, including judgment and any appeal.
On behalf of the claimants it is submitted that, on their side at least, it was contemplated that this claim would proceed as quickly as possible to a combined trial dealing with both liability and quantum issues, and it is said that in those circumstances it made good sense to impose a cut-off date because it was anticipated that there would need to be a process of selection of test claimants. The sign up and validation process in the GLO is said to have been structured with that in mind, with each claimant being required to provide a schedule of information. It is argued that it made good sense to impose a cut-off date because it was anticipated that there would need to be a process of selection of test claimants: the information required to be provided would assist in this selection process and the cut-off date would ensure that the full cohort of potential claimants was available suitably early in the process.
On BA's part, reference is made to the fact that they did not know, nor would Warby J have known, what was in the mind of the claimants' representatives when they agreed to the cut-off date.
There has been a change of a relevant nature in these proceedings following the making of an order for a split trial in November 2020. This change is one of the main factors relied upon by the claimants in the application that they have made before me this morning.
For its part, BA opposes that application and its overall submission is that no good reason has been advanced by the claimants for a variation of the cut-off date, and it also makes the point that the original cut-off date (and indeed the extended cut-off date) were generous to the claimants' representatives.
Before turning to the competing arguments, I should refer to some of the case law. Both parties have cited a similar range of cases, including Pearce v Secretary of State for Energy and Climate Change [2015] EWHC 3775 (QB), and Holloway and others v Transform Medical Group (CS) Limited and others [2014] EWHC 1641 (QB).
In addition to those two cases, reference has been made to the decision of Hildyard J in the RBS Rights Issue Litigation [2014] EWHC 227 (Ch), and to the helpful discussion in the text, Class Actions in England and Wales at paragraphs 3–075 to 3–078. I also note that a cut-off date is not required by the terms of CPR Rule 19.13(e) which specifies only that a cut-off date “may” be ordered.
In terms of a summary of the overarching principle to be derived from these various cases, it seems to me that the decision whether to impose a cut-off date, or indeed whether to maintain or vary a cut-off date, is essentially a pragmatic case management decision which must focus on the specific advantages and disadvantages of imposing a cut-off date or maintaining a cut-off date.
That case management decision has to be made guided by the overriding objective in CPR 1.1. I will return to the overriding objective in due course since it has been the focus of certain submissions.
There is a threshold issue between the parties based upon the history of these proceedings. On behalf of the claimants, it is argued that I should look at the facts as they are at today's date and assess whether an extension to the cut-off date in the terms asked for is justified, putting aside essentially what has happened earlier and asking myself what furthers the overriding objective at this point in time. By contrast, on behalf of BA it is submitted that one cannot ignore the history in terms of existing orders (and existing variations of the cut-off date) and there has to be good reason to justify a departure from what had been ordered by consent at an earlier stage given reliance on this by the parties.
In my judgment, the correct approach is to require the claimants to justify a departure from what had previously been ordered and agreed. They need to establish that there is some development or feature which justifies an extension of the cut-off date.
So, I proceed on the basis that BA is in principle correct in its submission that a variation needs to be justified and that one cannot simply ignore the history and proceed as if one were starting with a blank sheet. That having been said, I...
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Weaver and Others v British Airways Plc (No.2)
...2019 and 17 February 2021). The background to the litigation is set out in my judgment following the first of these hearings: [2021] EWHC 217 (QB). These proceedings are progressing to a trial of generic issues of liability in the Summer term of 2 The final issue I need to resolve is the q......