Malik: Victory for the claimants
The High Court has rejected an accusation of abuse of process levied against a leading consumer claim law firm and a KC over their conduct of a data breach case.
As a result, Master Dagnall refused Capita PLC’s bid to strike out the claims of 3,973 people following a cyber-attack in 2023 which exposed the personal information of 6.6m people – including staff – such as financial and pension data.
Capita argued that the particulars of claim submitted by Manchester firm Barings and counsel Philip Coppel KC over-egged the impact of the claimants’ mental health, tainting their clients’ beliefs and evidence such that the entirety of the claims had become an abuse of process.
It submitted that certain expressions used – such as “tormented”, “violation of the security” and “betrayal of trust” – were invented by the lawyers and asserted damage more substantial than that justified by the instructions and material supplied by individual claimants.
The court heard Mr Coppel drafted the particulars of claims based on the data breach questionnaire filled out by each claimant. Barings completed the schedules to the particulars by marking x’s against any of 12 types of distress that each claimant said they had suffered, plus any further information they had provided.
The claim form, particulars and schedule were sent to each claimant prior to issue, asking if they agreed to Barings advancing their claim.
Master Dagnall held that neither Mr Coppel nor Barings had been shown to have done anything wrong.
“Mr Coppel, as counsel drafting what are pleadings, has a wide latitude to consider how to formulate into the form of a pleading what is being said to him in his instructions,” he said.
“The pleading is the work of the lawyer, it is not the work of the client. Counsel’s duty is primarily to the client, and is to formulate their case in the most effective and high-level way. If counsel do not do so then they are at risk of being sued by their own client.”
Capita’s attack was on how the wording came about. The judge noted that the Bar code of conduct said counsel must not devise any fact or advance statements of fact not supported by the lay client or their instructions.
Here, the clients’ agreement to what they had been sent was a form of instruction and confirmed the accuracy of what was said.
The judge went on: “[W]here an individual claimant had decided to enter into and pursue this process, and to assert (at least) ‘anxiety’ or ‘distress’, at first sight that claimant would be thought to be saying that it was substantial and of concern to them.”
The words highlighted by Capital had a wide range of possible meanings and there was “a basis for asserting” all of them.
More broadly, Master Dagnall pointed out that the pleadings were verified by statements of truth but equally were not witness statements or evidence. Those would be tested at trial.
It was relevant too that “the factual essence of the liability claim is clear and in the case of many claimants admitted”.
But the judge was nonetheless “distinctly concerned” by the different possible understandings of the phrases used – including by the individual claimants.
What was being asserted in a pleading “should be clear and “the differences in meaning seem already to have contributed to a substantial dispute”.
Master Dagnall said that while the fact individual claimants assented to the particulars and schedule on the basis of their own understandings of the impugned expressions reinforced his view that there was no abuse, their use was “likely to obstruct the just disposal of the proceedings”.
The word ‘tormented’ should be replaced with something like ‘varying degrees of substantial anxiety and distress’, he suggested.
“However, I regard precisely what should happen (including whether there should be any fresh assents by individual claimants) as deserving consideration by the parties and best dealt with at a consequentials hearing.”
The judge added that, even if he had found an abuse of process, he would not have struck out the claims. Given the admitted breach, this would have been “draconian”.
“I do not consider that this point is answered by an assertion that the claimants could then sue their lawyers for the lost value of their claims. That is not a reason for the defendant not to have to pay for its own wrong; and I bear in mind that the defendant would effectively be obtaining a substantial windfall benefit.
“If the claimants can reliably establish a quantum of loss, I do not see why it should have to be their lawyers rather than the wrongdoer defendant who should pay it.”
He concluded by expressing concern about the costs of the litigation – already at between £500,000 and £1m despite being at a very early stage – and “the fact that this litigation should be a question of to what remedy (if any) the individual claimants are each entitled, but where the hearing before me has been much of a battle between lawyers”.
Adnan Malik, head of data protection at Barings Law, said: “This is a victory for the claimants in a long-running case, which from day one has centred on the rights of ordinary individuals against a major corporation which catastrophically failed to protect their privacy.
“For Capita to attempt to play down the seriousness of the impact was wrong, but today’s judgment affirms that the welfare of data breach victims is being taken seriously.”
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