William Stadler v Currys Group Ltd
| Jurisdiction | England & Wales |
| Judge | Lewis |
| Judgment Date | 31 January 2022 |
| Neutral Citation | [2022] EWHC 160 (QB) |
| Docket Number | Case No: QB-2021-002102 |
| Court | Queen's Bench Division |
[2022] EWHC 160 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
HIS HONOUR JUDGE Lewis
(sitting as a Judge of the High Court)
Case No: QB-2021-002102
Daniel Glover (instructed by Irvings Law) for the Claimant
Gemma McNeil-Walsh (instructed by the in-house legal department) for the Defendant
Hearing date: 29 October 2021
Supplemental written submissions 29 November 2021
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.
HIS HONOUR JUDGE Lewis
This is a consumer dispute about responsibility for the security of data stored on a smart television when returned to a retailer for repair.
The defendant applies on notice for an order striking out the claim pursuant to CPR rule 3.4(2)(a) and (b) and/or for summary judgment pursuant to CPR rule 24.2.
The parties have agreed that if any parts of the claim survive these applications, the matter should be transferred to the County Court.
Since the hearing, both parties have filed short supplemental skeletons following the Supreme Court's decision in Lloyd v Google LLC [2021] UKSC 50.
Based on the witness evidence filed, the following facts do not appear to be disputed to any material extent:
a. The claimant purchased a smart television from the defendant in September 2016 (“the Smart TV”). The Smart TV allowed the user to access third party “apps”, one of which was for Amazon Prime.
b. In September 2020, the claimant returned the Smart TV to the defendant for repair. Although faulty, the Smart TV had enough functionality to allow a user to log out from any apps.
c. The claimant was not asked by the defendant to clear and/or remove any of the apps on the Smart TV and was told to pass the device to the defendant's employees, together with the remote and power cable (witness statement of the claimant's solicitor dated 20.10.2021 at [8]).
d. The claimant did not log out of his Amazon app (or any other apps) before leaving the Smart TV with the defendant.
e. The defendant's technical staff determined that any repair of the Smart TV would be disproportionately costly and so offered to write-off the unit and compensate the claimant with a voucher. The claimant accepted this offer and used the voucher to purchase a new television. His understanding was that the Smart TV would be destroyed.
f. The defendant then sold the Smart TV to a third-party company, without performing a factory reset or data wipe.
g. On or around 31 December 2020, a movie was purchased for £3.49 by someone using the claimant's Amazon account through the Smart TV.
h. The claimant telephoned the defendant. On 2 January 2021, the defendant reimbursed the claimant for the cost of the Amazon purchase (£5). On 4 January 2021, the defendant contacted the claimant again to make sure that he had changed his passwords for Amazon and any other apps, and the claimant confirmed that he had. On 11 January 2021, the defendant provided the claimant with a £200 shopping voucher as a gesture of goodwill.
The claimant has now brought proceedings seeking the following:
a. Damages (including aggravated and exemplary damages) up to £5,000 for (i) misuse of private information (“MOPI”); (ii) breach of confidence (“BoC”); (iii) negligence; and (iv) breach of data protection law, in particular pursuant to Article 82 UK-GDPR and sections 168 and 169 of the Data Protection Act 2018.
b. An injunction requiring the defendant, if it continues to process the claimant's personal data, to act in accordance with the requirements of the UK-GDPR and the Data Protection Act 2018.
c. A declaration that by processing the claimant's personal data the defendant has breached Article 5(1) of UK-GDPR.
The claim for negligence is pleaded in the particulars of claim, but not in the claim form. Whilst the defendant has taken issue with this, I have proceeded on the basis that if such a claim were viable, permission to amend the claim form would be granted.
This application is being considered at the start of proceedings. The defendant has not yet filed its defence, nor has either party served its substantive evidence.
The defendant's application
The defendant challenges the claimant's case on three grounds, namely that: (i) the pleading discloses no reasonable grounds for bringing a claim in any of the causes of action pleaded and the claim falls to be struck out pursuant to 3.4(2)(a); (ii) given the compensation already provided, all that remains is the “distress” purportedly caused to the claimant during the short period in which he realised his accounts had not been logged out, and such a claim is “not worth the candle” and falls to be struck out pursuant to 3.4(2)(b); and/or (iii) the claim has no reasonable prospects of success such that summary judgment ought to be granted pursuant to CPR 24.2.
CPR rule 24.2 provides that the court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if:
“(a) it considers that—
(i) that claimant has no real prospect of succeeding on the claim or issue; or
(ii) that defendant has no real prospect of successfully defending the claim or issue; and
(b) there is no other compelling reason why the case or issue should be disposed of at a trial”.
The approach to be taken when considering a defendant's application for summary judgment applications was summarised by Lewison J in Easyair Limited (Trading As Openair) v Opal Telecom Limited [2009] EWHC 339 (Ch) at [15] (citations removed):
“i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success.
ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable.
iii) In reaching its conclusion the court must not conduct a “mini-trial”.
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.
v) However, 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 also the evidence that can reasonably be expected to be available at trial.
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.”
CPR rule 3.4 makes provision for the court to strike out a statement of case or part of a statement of case if it appears that it discloses no reasonable grounds for bringing or defending a claim. The court may do so 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
The approach to strike out applications under the first limb was summarised in Duchess of Sussex v Associated Newspapers Limited [2020] EWHC 1058 (Ch) at [33]:
“(2) An application under CPR 3.4(2)(a) calls for analysis of the statement of case, without reference to evidence. The primary facts alleged are assumed to be true. The Court should not be deterred from deciding a point of law; if it has all the necessary materials it should “grasp the nettle”: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725, But it should not strike out under this sub-rule unless it is “certain” that the statement of case, or...
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