X v The Transcription Agency LLP
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 09 May 2023 |
| Neutral Citation | [2023] EWHC 1092 (KB) |
| Docket Number | Case No: HO5LV765 |
| Court | King's Bench Division |
[2023] EWHC 1092 (KB)
THE HONOURABLE Mrs Justice Farbey
Case No: HO5LV765
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
LIVERPOOL DISTRICT REGISTRY
Liverpool Civil and Family Courts
35 Vernon Street
Liverpool L2 2BX
Mr David S Boyle for the Claimant
Mr Dan Stacey (instructed by Kennedys Law LLP) for the First Defendant
Mr Alan Bates and Mr Will Perry (instructed by the Government Legal Department) for the Second Defendant
Hearing dates: 23 – 25 January 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 09 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
By a claim form issued on 25 June 2021, the claimant challenges the refusal of each defendant to provide him with his personal data. He seeks relief for breach of the subject access provisions of the Data Protection Act 2018 (“ DPA 2018”) and the United Kingdom General Data Protection Regulation (“UK GDPR”). The first defendant is a provider of transcription services. It provides transcripts of court hearings pursuant to a Framework Agreement with the Lord Chancellor relating to the provision of court reporting and transcription services (“the Framework Agreement”). The second defendant is a High Court Master and a Costs Judge.
The claimant has made a subject access request (“SAR”) to each defendant under the UK GDPR and DPA 2018 for the supply of the personal data they hold (respectively) about him. The requests have their origins in other, longstanding litigation in the High Court. The details of that other litigation are not relevant to the legal issues that I must determine and will not be rehearsed in this judgment.
The claimant is distressed by some of the personal background that overlaps the present claim and the other litigation. Repetition of the background – whether in court hearings or outside court — causes him renewed distress. In order to protect his privacy rights, reporting restrictions are in place in relation to these proceedings and in relation to the other litigation.
In refusing to provide personal data to the claimant, each defendant relied on the statutory exemption under para 14 of Part 2 of Schedule 2 to the DPA 2018 (“para 14”). The exemption enables personal data to be withheld from an individual if (among other things) it is processed by an individual or court acting in a judicial capacity or if its disclosure would be likely to prejudice judicial independence (“the judicial exemption”). Counsel's researches have revealed that the judicial exemption has not been the subject of previous High Court or appellate authority.
The determination of the present claim raises four main issues:
i. Issue 1: Scope of the judicial exemption: As a matter of law, were either or both of the defendants entitled to withhold some or the entirety of the claimant's personal data on the basis of the judicial exemption?
Having heard legal argument on behalf of all parties on the interpretation of the judicial exemption, I announced my decision during the course of the hearing that that there was no legal bar to the defendants' withholding the claimant's personal data on the basis of the judicial exemption.
ii. Issue 2: Procedure for consideration of whether the judicial exemption applies: In order for the court to determine whether the withheld personal data are (as a matter of fact) covered by the judicial exemption, does the court have power to consider the withheld material in closed session (i.e. in the absence of the claimant and his legal representatives)?
Having heard legal submissions on behalf of all parties, I announced my decision during the course of the hearing that the court has such a power.
iii. Issue 3: Application of the judicial exemption to the facts of the case: As a matter of fact, were some or all of the withheld personal data covered by the judicial exemption?
Having held open and closed sessions, I announced my decision during the course of the hearing that the claimant was not entitled to any disclosure and that the entirety of the withheld data fell within the judicial exemption.
iv. Issue 4: Did the second defendant reply to the SAR in time? Is the claimant entitled to a remedy on the grounds that the second defendant's reply to his SAR was not made within the requisite one month of receipt of the SAR? In the present case, the reply was made more than one month after the claimant's letter was received at the Royal Courts of Justice to which it was posted but less than one month after the second defendant received it.
Having heard submissions from all parties, I reserved my decision on this issue.
This judgment contains (i) the reasons for my decisions on Issues 1–3; and (ii) my decision and reasons on Issue 4 and other, remaining issues.
Factual background
I am satisfied of the following facts on the balance of probabilities. The claimant is an individual. He brought a number of claims in the High Court against a government department. The claims were heard together. The claimant had mixed success so that the trial judge made a costs order in his favour but also costs orders against him. All the costs were to be the subject of detailed assessment by a Costs Judge. The second defendant was allocated as the Costs Judge and the costs proceedings commenced. There were a number of interim hearings.
During the course of the costs proceedings, in March 2021, the claimant lodged with the Judicial Conduct Investigations Office (“JCIO”) a complaint of judicial misconduct against the second defendant. The complaint made a number of different allegations. It was dismissed in its entirety in April 2021. I have been told that the claimant has made a complaint to the Judicial Appointments and Conduct Ombudsman (“JACO”) challenging JCIO's handling of his case.
By a judgment given in April 2021, the second defendant assessed the claimant's costs at only a very small fraction of the very substantial costs that he had claimed. She went on to reduce the assessed costs by 70% on the grounds of the claimant's conduct of the litigation (see CPR 44.11).
Request for data from the second defendant
By letter to the second defendant dated 28 April 2021, the claimant made a SAR in the following terms:
“1. Please supply the personal data you hold about me, which I am entitled to receive under data protection law. …
3. In undertaking your search please consider the information about me going back to March 2018 to include communications with
(a) the judiciary (including those responsible for training, supervision and conduct of the judiciary (such as the Senior Costs Judge and JCIO))
(b) the administrators of the Courts (including the Ministry of Justice and its agency of HMCTS)
(c) authorised Transcription Companies
4. Material held includes
(i) my ‘special category’ personal data (in particular health);
(ii) matters relating to my anonymity and security of my personal data;
(iii) administrative matters for HMCTS (in particular the issuing of applications; requests for transcripts; and responding to correspondence); and
(iv) my professional and business interests (including research).”
The second defendant has disclosed a copy of the envelope in which the SAR was sent. The claimant has in correspondence with the second defendant's solicitor and at para 38 of his witness statement complained that he has not had sight of the original envelope. I heard no persuasive submissions about why the copy would not be faithful to the original document. I have no reason to suppose that the copy I have seen was not a true copy. It shows that the SAR was sent by special delivery post on 28 April 2021. The claimant's case – admitted in the second defendant's defence – is that the letter was delivered to the Royal Courts of Justice and signed for on 30 April 2021. The copy of the envelope shows that it was date stamped as received by the Senior Courts Costs Office on 7 May 2021. The second defendant endorsed the envelope by hand to show that she had opened the envelope on 13 May 2021.
In the absence of any reply to the SAR, the claimant on 2 June 2021 sent a letter before claim to the second defendant in which he contended that there had been non-compliance with the SAR within the requisite timeframe of one month or at all.
On 3 June 2021, the claimant received a reply to his SAR in a letter dated 26 May 2021 from the Knowledge and Information Liaison Officer (“KILO”) of the London Regional Support Unit within Her Majesty's Courts and Tribunals Service (“HMCTS”). The reply states (so far as relevant to the issues before me):
“Your request has been handled under the UK General Data Protection Regulation (the Regulation) and the Data Protection Act 2018 (the DPA).
This response has been prepared on behalf of [the second defendant].
The information you request is exempt from the right to access personal data under Article 15 of the Regulation….
Personal data relating to you held by [the second defendant], processed while [she] was acting in a judicial capacity, are … exempt from the article 15 right.
Information relating to you processed by the second defendant while not acting in a judicial capacity is exempt under Schedule 2, paragraph 16(1), (2) and (3) of the DPA.
Schedule 2 paragraph 16…and Article 5 of the GDPR…do not oblige a controller to disclose information to the data subject to the extent that doing so would involve disclosing information relating to another individual who can be identified from the information.”
The second defendant relied, therefore, on the judicial exemption (para 14) and on the exemption relating to third party data (para 16 of Schedule 2 to the DPA 20...
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X v The Transcription Agency LLP
...the claimant's claim for relief. The reasons for dismissing the claim are set out in a judgment handed down on 9 May 2023: see [2023] EWHC 1092 (KB). I shall refer to that judgment as “the main 4 I received written submissions in respect of costs before the main judgment was handed down. H......