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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Lord Ashcroft v Attorney General & Anor  EWHC 1122 (QB) (31 May 2002)
Cite as:  EWHC 1122 (QB)
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QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| LORD ASHCROFT||Claimant|
|- and -|
|(1) ATTORNEY GENERAL|
(2) DEPARTMENT FOR INTERNATIONAL DEVELOPMENT
Mr Andrew Caldecott QC and Jason Coppel (instructed by Treasury Solicitor) for the defendants
Hearing dates : 21 and 22 May 2002
Crown Copyright ©
Mr Justice Gray :
The nature of the applications
The parties and the background
The existing proceedings
A sea change in the case for the Claimant
General objections to the new pleading
Detailed examination of the Re-Amended Particulars of Claim
Paragraphs 5.3, 5.4, 5.7, 10 and 15: new claims under the DPA 1984 and 1998
“(1) An individual who is the subject of personal data held by a data user or in respect of which services are provided by a person carrying on a computer bureau and who suffers damage by reason of
(a) the loss of the data;
(b) the destruction of the data without the authority of the data user… or
(c) …the disclosure of the data or access having been obtained to the data without such authority aforesaid,
shall be entitled to compensation from the data user or, as the case may be, the person carrying on the bureau for that damage and for any distress which the individual has suffered by reason of the loss, destruction, disclosure or access”.
“However a private law cause of action will arise if it can be shown, as a matter of construction of the statute, that the statutory duty was imposed for the protection of a limited class of the public and that Parliament intended to confer on members of that class a private right of action for breach of the duty. There is no general rule by reference to which it can be decided whether a statute does create such a right of action but there are a number of indicators. If the statute provides no other remedy for its breach and the Parliamentary intention to protect a limited class is shown, that indicates that there may be a private right of action since otherwise there is no method of securing the protection the statute was intended to confer. If the statute does provide some other means of enforcing the duty that will normally indicate that the statutory right was intended to be enforceable by those means…”.
“disclosing, in relation to data, includes disclosing information extracted from the data; and where the identification of the individual who is the subject of personal data depends partly on the information constituting the data and partly on other information in the possession of the data user, the data shall not be regarded as disclosed or transferred unless the other information is also disclosed or transferred”.
Paragraph 12: the Knapp enquiry
“The case law reveals two different forms of liability for misfeasance in public office. First there is the case of targeted malice by a public officer, i.e. conduct specifically intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act will probably injure the plaintive. It involves bad faith in as much as the public officer does not have an honest belief that his act is lawful. …
These decisions laid the foundation of the modern tort; they established the two different forms of liability; and revealed the unifying element of conduct amounting to an abuse of power accompanied by subjective bad faith…
The present case is not one of targeted malice. If the action in tort is maintainable it must be in the second form of the tort. It is therefore necessary to consider the distinctive features of this form of the tort. … The basis for the action lies in the defendant taking a decision in the knowledge that it is an excess of the powers granted to him and that it is likely to cause damage to an individual or individuals. It is not every act beyond the powers vesting in a public officer which will ground the tort. The alternative form of liability requires an element of bad faith… The plaintiff must prove that the public officer acted with a state of mind of reckless indifference to the illegality of his act”.
Lord Steyn added that causation is an essential element of the cause of action.
Paragraphs 14 and 15
Paragraph 16: damage and distress
Paragraph 17: aggravated damages