X v The Transcription Agency LLP
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Farbey |
| Judgment Date | 15 September 2023 |
| Neutral Citation | [2023] EWHC 2283 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: HO5LV765 |
[2023] EWHC 2283 (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 Will Perry (instructed by the Government Legal Department) for the Second Defendant
Hearing date: 6 June 2023
Approved Judgment (Costs)
This judgment was handed down remotely at 10.30am on 15 September 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This is a judgment about costs. The claimant is an individual who challenged the refusal of each defendant to provide him with his personal data. The first defendant 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. During the course of costs proceedings before the second defendant, the claimant requested transcripts of three hearings which were to be produced by the first defendant.
The claimant made a subject access request (“SAR”) to each defendant under the Data Protection Act 2018 and the United Kingdom General Data Protection Regulation. By those requests, he sought the supply of personal data that the defendants held about him. Neither of the defendants provided him with any personal data. In refusing to do so, they relied on the judicial exemption under para 14 of Part 2 of Schedule 2 to the 2018 Act. The judicial 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.
Following a three-day trial, I upheld the defendants' reliance on the judicial exemption and dismissed 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 judgment”.
I received written submissions in respect of costs before the main judgment was handed down. However, the parties took such different positions on costs that the court was not in a position to determine questions of costs without a further hearing. By Order dated 9 May 2023, I directed that there be a costs hearing. My Order provided that the parties should by 18 May 2023 produce agreed draft directions for my approval in relation to (among other things) the filing and service of any further documents that the court would need to consider.
I did not receive any response to the request for agreed draft directions and so, on 24 May 2023, I asked court staff to chase the parties. On 25 May 2023, I was provided with agreed directions which I approved.
Under the agreed directions, the claimant's solicitors were required to file and serve an agreed bundle comprising any additional documents upon which the parties' sought to rely and which were not already in the trial bundle. The claimant filed a bundle running to 680 pages. The defendants filed and served their own joint bundle running to 159 pages on the grounds that the claimant's bundle was excessive and contained irrelevant material. On the morning of the hearing, the claimant filed an additional 217 pages of documents. An attempt to file these additional documents earlier was said to have encountered technical problems.
In addition to his bundle, the claimant wanted to rely on part of the evidence of Natalie Goodson who had been called at trial on behalf of the first defendant. On 25 May 2023, the claimant submitted a Form Ex 107 in order to obtain a transcript of Ms Goodson's evidence. I dealt with the Form on the same day. As it was optimistic to expect the transcript to be ready by the date of the costs hearing, I directed that the claimant should file and serve a Note of any passages of Ms Goodson's evidence on which he sought to rely. In the written reasons for my direction, I explained that the Note could then be checked against the approved transcript when it was ready. The claimant did not provide a Note.
At the end of the hearing, I permitted the claimant 14 days to file and serve any transcript of Ms Goodson's cross-examination. I directed that only the relevant pages should be filed and served, and that the relevant passages should be sidelined. The claimant asked his selected transcribers to produce a short part of Ms Goodson's evidence. However, the transcribers were not willing to search for a particular part of the evidence on the audio recording.
By email to my clerk on 19 June 2023, the claimant's solicitors said that it was not possible to submit a transcript within the period I had directed. The claimant took the view that it was in any event disproportionate to obtain a transcript of Ms Goodson's evidence as he only wished to rely on a small part of what she had said. For these reasons, no transcript has been provided. The claimant's email to my clerk seemed to imply that I should listen to the audio recording in lieu of a transcript. I would not regard such an unorthodox approach as being an appropriate use of judicial resources.
The main judgment
The main judgment dealt with four principal issues. First, I held that there was no legal bar to the defendants' withholding the claimant's personal data on the basis of the statutory judicial exemption. Secondly, I held that the court had the power to hold a closed hearing (in the absence of the claimant and his legal representatives) in order to determine whether the personal data withheld by the defendants was covered by the judicial exemption. Thirdly, applying the judicial exemption to the facts of this case, I held that the claimant was not entitled to any disclosure and that the entirety of the withheld data fell within the judicial exemption. Fourthly, I held that the claimant had not discharged his burden of proving that the second defendant had responded to the SAR outside the statutory time period of one month. On all these issues, I found in favour of the defendants and against the claimant.
Having dealt with the main issues, I considered a number of other issues that the claimant had raised. I do not need to set out here all of those other issues. It suffices to mention that I considered various criticisms made by the claimant about GLD's involvement in the proceedings. I observed:
“162. The claimant regards it as improper that the second defendant is represented by GLD (as explained in his Memorandum dated 16 December 2022 and in paras 22–24 of his witness statement). In his skeleton argument, Mr Boyle suggests that GLD is “not entitled to act for an individual unless it asserts that the government has a vested interest in the outcome of the case.” He implies that the second defendant has not applied her own independent judgment to certain matters that have arisen in the course of these proceedings, having let herself be dominated by hostile government lawyers ‘supposedly instructed by her’.
163. The gist of the claimant's objection to GLD appears to be a concern that the government (a party to the costs proceedings before the second defendant) would have sight of information that was disclosable in the assessment of costs but would in any other context be the subject of legal professional privilege. The claimant is concerned that his privileged material may have been deployed against him in the present proceedings. However, there are no proper grounds for advancing such a proposition.
164. There is no evidence before me that GLD has mishandled any information or documents relating to the claimant. Nor have I been given any reason to suppose that GLD as an organisation does not have adequate systems for conflict checks in place. While the claimant has repeatedly goaded GLD (such as by pursuing a SAR to GLD raising disputatious questions about GLD and its various instructed counsel), I cannot conceive of how I could properly interfere with the second defendant's relationship with her solicitors and independent counsel. I have not been asked to take any action or make any order in relation to the second defendant's representation. I shall not do so.”
As I have mentioned, the claimant's claim was dismissed and he was not granted any relief. The defendants were the successful parties and the claimant was the unsuccessful party.
The parties' positions on costs
The defendants each applied in writing and orally for the claimant to pay their costs. They submitted that the award of costs should be on the indemnity basis rather than the standard basis. They each applied for an interim payment on account of costs.
The claimant submitted that there should be no order for costs. The court should disapply the general rule — that costs follow the event — on grounds of the defendants' conduct. Alternatively, costs should be awarded on the standard basis as there were no grounds for indemnity costs.
The claimant submitted that, in relation to the first defendant, any payment on account should be in a reasonable proportion to the overall sum claimed. In relation to the second defendant, the claimant submitted that she was not indemnified by the Ministry of Justice — who had arranged her legal representation by the Treasury Solicitor and counsel. (I should clarify that the Treasury Solicitor was not personally involved but delegated the conduct of the claim to GLD in the ordinary way.)
The claimant submitted that...
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