Car crashes: Data used to plead fundamental dishonesty
The Court of Appeal has thrown out a bid to appeal a ruling that cleared defendant law firm DWF of data protection breaches.
DWF had collated evidence about the way North London solicitors Ersan & Co pursued personal injury claims.
Lord Justice Warby said the appeal “advanced a new case, not argued below, in reliance on an authority that had not been cited. It represented a departure from the agreed position before the judge”.
Back in 2021, DWF’s then head of organised fraud, James Stevens, created a witness statement (referred to as ‘JS1’) which was used to plead fundamental dishonesty in five low-value road traffic claims where Ersan acted for the claimants.
It detailed 372 claims submitted by the firm, which he said showed that 95% contained an allegation of psychological injuries and 68% of claimants served a psychological or psychiatric report.
All 207 reports provided by a particular doctor diagnosed a recognised psychiatric condition, with two-thirds of them estimating a recovery period of two years or longer.
DWF represented 18 insurers who were defendants to a large number of road traffic accident claims where Ersan was acting. Though 137 Ersan clients initially made data breach claims, all but three discontinued.
Mrs Justice Eady found [1] that DWF undertook the data processing “for a specified, explicit and legitimate purpose, carried out in performance of the defendant’s professional (and regulatory) obligations to its clients, for the public interest task of ensuring the proper administration of justice, and for the purpose of the legitimate interests of the defendant’s clients”.
The processing was necessary, proportionate and fair.
DWF argued that Ersan & Co’s real aim was to undermine its ability to use the details of past claims brought by the firm to allege fundamental dishonesty in future ones.
Giving the unanimous ruling of the Court of Appeal [2], Warby LJ said the claims advanced in the action “have fluctuated and mutated over time. They changed more than once during this appeal”.
By the end of the hearing, the only contention advanced was that Eady J “erred by failing to find a risk that DWF would in future process their personal data in the form of a version of JS1 that was not pseudonymised, that this would be disproportionate and otherwise contrary to the UK GDPR and [Data Protection Act] 2018, and that declarations should be made accordingly”.
This was, said Warby LJ, “another new way of putting the case – as one might say, a new, new case”.
It lay “beyond the parameters” of both the case presented to the High Court and the relief sought in the appellants’ notice, and was not covered by the grant of permission to appeal.
To cure this, the appellants required permission to amend their particulars of claim after judgment and their grounds of appeal, and then had to persuade the Court of Appeal to allow them to take a new point on appeal.
Warby LJ refused all three. “A claim for relief based on a future risk would require us to set aside the Judge’s uncontested conclusion on that point and to undertake, or direct, a fresh factual evaluation. Allied to this is the fact that the new claim rests on a new point of law which is also contrary to the position agreed at the trial.”
The appellants also failed to confirm they could cover the additional costs incurred as a result of the changes in their position.
Further, “no good explanation has been provided for not taking the point earlier” and in any case the “factual case for claiming relief in respect of future risk is, in my judgment, unsustainable”.
Finally, applying the Denton test, “the circumstances point unequivocally in favour of refusing an extension of time for raising the new, new claim on this appeal”.
Warby LJ concluded that the appeal “has been wasteful of time and resources in a way that is, fortunately, highly unusual, and without any good reason being apparent”.