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||Neutral Citation Number:  EWHC 1768 (QB)
||Case No: HQ08X05186
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
||7 July 2011
B e f o r e :
THE HONOURABLE MR JUSTICE EADY
||- and -
William Bennett (instructed by Layzells Solicitors) for the Claimant
Ali Reza Sinai (instructed by Attwaters Solicitors) for the Defendant
Hearing date: 17 June 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Eady :
- This litigation began at the end of 2008 and has made little progress. The unusual facts have led to hesitation and changes of direction as to how the claim should be pleaded. Some 20 years ago the Claimant forged a will purporting to be that of his maternal grandmother. This was detected and he pleaded guilty to two counts of forgery, being sentenced to nine months imprisonment in June 1992. He thereafter moved abroad and has lived in Hong Kong for many years, where he has held a number of posts in the field of investment banking.
- The Claimant has been dogged for a long time by communications sent to various employers, potential employers and official bodies by his mother's brother, informing them of his conviction and sentence for forgery. He says that this only came to his attention in late 2008, as his uncle had been at pains to conceal what he was up to. A claim form was issued against him on 23 December of that year. His sole objective now is to prevent, by one means or another, any further publications of this kind. The Claimant argues that there can be no legitimate purpose served by the Defendant continuing his campaign. In so far as there ever was a legitimate purpose, that would have been exhausted years ago when the Defendant drew the facts to the attention of the police and the Hong Kong Monetary Authority. They took no action.
- On 17 June 2011, a number of applications came before the court. The Defendant's application was issued on 2 March and the Claimant's is dated 7 June. They raise the following issues for determination:
i) The Defendant applies for security for costs.
ii) He seeks to strike out paragraph 16 of the Re-amended Particulars of Claim (relating to a claim in libel said to be time-barred).
iii) He was also asking that directions be given for the trial of preliminary issues as to the applicable law (which is no longer necessary).
iv) The Claimant applies for summary judgment on his claims based on privacy and data protection.
There was a further issue left over by the Master on 2 February 2011: the issue of costs in respect of claims discontinued. That soon resolved itself as the Claimant, through Mr Bennett, accepted that he should pay them. I shall return to the issue of security after addressing the merits of the claims as they now stand.
- At common law, the conventional answer would have been that there was nothing the Claimant could do about his uncle's activities. There would be no claim for libel since, leaving aside any issue of qualified privilege, there would have been a defence available by way of justification. The law in England would have regarded truth as a complete and unqualified answer. Moreover, the law of Hong Kong, where most of the relevant publications seem to have occurred, would in this respect have been largely similar.
- After abandoning some of his original causes of action, the Claimant consulted fresh lawyers who came up with a different strategy. Claims have been formulated on the basis of relatively recent developments in the law, namely the Human Rights Act and the Data Protection Act of 1998.
The application for summary judgment on the privacy claim
- First, reliance is placed on the developing jurisprudence relating to private information, in the light of the Human Rights Act and the decision of the House of Lords in Campbell v MGN Ltd  AC 457. Closely linked to that, the Claimant now prays in aid the policy considerations underlying the Rehabilitation of Offenders Act 1974. Were it not for these developments, I doubt that it would have even been argued that anyone was obliged to keep his wrongdoing quiet, least of all someone who was one of the victims of his criminal activity. Nevertheless, the Claimant now seeks an injunction against his uncle to restrain him from communicating any further information about the 1992 conviction. That is the only remedy he seeks.
- There is no mention in the 1974 Act itself either of any right to confidentiality or of the issue of prior restraint. One would expect any such fundamental change in the law, if it was intended, to have been made expressly clear by Parliament. True, it does address the defence of justification and s.8 introduces the principle, uniquely, that such a defence can be defeated in this context on proof of malice. Yet a judge is only rarely going to be in a position to decide, in advance, that any proposed publication will be malicious. Correspondingly, the grant of an injunction based on an anticipated libel of this kind would be wholly exceptional.
- It is common ground that the Claimant's conviction became "spent" in accordance with the statutory scheme in June 2002. Thereafter, submits Mr Bennett on his behalf, the Claimant would have had a reasonable expectation of privacy in respect of the fact of his 1992 conviction. Mr Bennett argues that the need for rehabilitation engages the values of Article 8 of the European Convention on Human Rights and Fundamental Freedoms, since that is concerned in part with the right to develop as an individual, including in a professional context: Niemietz v Germany (1993) 16 EHRR 97 at  and Von Hannover v Germany (2004) 40 EHRR 1 at .
- Obviously, no such claim was envisaged by the legislature at the time of the 1974 enactment. The limited protection it afforded, although undoubtedly intended to facilitate the desirable public policy objective of rehabilitation, consisted of certain carefully defined rights or privileges that could be said to involve an element of re-writing history.
- Specifically, there are the provisions of s.4 and s.8 of the Act. By virtue of s.4(1) a rehabilitated person shall be treated for all purposes in law as a person who has not been committed, charged with, prosecuted for, convicted of, or sentenced for the offence or offences which were the subject of that conviction. Furthermore, the effect of s.4(2) is, as Mr Bennett points out, to give the relevant person a licence not only to conceal but also to lie about the fact of any spent conviction. If he states that he does not have a conviction, for example at the point of entering into a contractual relationship, that is to be deemed irrelevant to the issue of enforceability. Again, by reason of s.4(3), a failure to disclose a spent conviction is not to be a legitimate ground for dismissing or excluding a rehabilitated person from employment.
- Further provision is made, in s.7(3), to the effect that evidence of a spent conviction is not to be admissible before a judicial authority unless justice cannot otherwise be done.
- So far as defamation is concerned, s.8 introduced the novel principle, to which I have already referred, that a defendant who sought to rely on justification, and to prove the spent conviction for that purpose, would lose the defence if the claimant were able to prove malice. Apart from this context, it had always been accepted in that branch of the law that truth would provide a complete defence. Subsequently, of course, there have been further encroachments upon that principle through the law of privacy. If private information is revealed, whether defamatory or otherwise, it is no defence to establish, without more, that the allegations were true: McKennitt v Ash  QB 73.
- Questions have occasionally been raised about the compatibility of these provisions of the 1974 Act with the Convention, since they impose restrictions on the freedom to tell the truth and, by the same token, to receive accurate information: see e.g. the discussion in Carter-Ruck on Libel and Privacy (6th edn) at 9-41 et seq. and Gatley on Libel and Slander (11th edn) at 18.14. No doubt the argument would be raised in their defence that such restrictions are necessary and proportionate for the legitimate objective of rehabilitation.
- It is important to note that Parliament, although it could have chosen to do so, did not make any specific provision whereby a rehabilitated person could prevent anyone from communicating the fact of a spent conviction (e.g. by way of injunction). On the other hand, in accordance with the common law, it might theoretically be possible to obtain an order to that effect if it were possible to prove in advance that any such publication would be motivated by malice: see e.g. Herbage v Pressdram Ltd  1 WLR 160. As I have noted already, that would be virtually impossible to achieve in practice.
- In the relatively few cases in which it is possible to set up a case of malice, the argument will generally be based on the proposition that the individual defendant must have known that the defamatory words complained of were false, or at least have been reckless in that regard. That could hardly be put forward on the present facts, since the basic fact of the conviction is acknowledged to be accurate. Any plea of malice, therefore, would have to be advanced on the alternative ground, canvassed by Lord Diplock in Horrocks v Lowe  AC 135, that the Defendant, while knowing the words to be true, published them with the dominant motive of injuring the Claimant's reputation. That is almost untrodden territory in the (more usual) context of qualified privilege, but it is possible that on the present facts the Claimant might succeed in establishing that motive. Yet it is not the stuff of summary judgment; nor yet a basis for granting an injunction prior to the conclusion of a trial on the evidence. An injunction cannot be granted at any earlier stage unless, exceptionally, the court is in a position to conclude, on paper, that the relevant defence (as here, that of justification) is bound to fail.
- I turn to consider the relationship between this statutory regime, from the context of defamation, and the recent development of the law relating to personal information. It might be thought, against that background, inappropriate to try and stretch the limited protections afforded by the 1974 Act beyond what the legislature expressly contemplated. On the other hand, Mr Bennett argues that in applying the law of privacy, as it has emerged since the Human Rights Act came into effect, one could use the policy underlying the law of rehabilitation to give a positive answer to the question, in any given case, whether there was a "reasonable expectation of privacy" in respect of a spent conviction. I see the force of that argument, but I think it would require clear authority, either in Strasbourg or domestic jurisprudence, to justify using the policy behind the Act to extend the legal remedies available beyond those that Parliament specifically provided. Ordinarily, a judgment as to whether there is a "reasonable expectation of privacy" in respect of a particular piece of information will have to be made according to the standards of ordinary reasonable onlookers. Here, on the other hand, the only context relied upon is the statutory regime. Where that is so, it is difficult to judge "reasonable expectations" other than from the wording sanctioned by Parliament or, perhaps, with any available guidance from Strasbourg jurisprudence on the significance of historic convictions.
- It is necessary at this point to pay close attention to the available dicta on the 1974 Act in English case law. Mr Bennett properly drew my attention to L v Law Society  EWCA Civ 811. Comments were made there by the Master of the Rolls on the scope and the limitations of the Act. Mr Sinai, for the Defendant, placed considerable reliance on some of these dicta highlighting, in effect, what the legislature did not provide for:
"24. … The contention that the 1974 Act renders spent convictions confidential misunderstands the Act's intention and its ambit. If it were to render spent convictions confidential it would have (as it were) to seal that part of an individual's criminal record such that no-one except perhaps the individual concerned had access to it. It does not do so.
25. It would also have to render private convictions that were matters of public record and may well have been, as in this case, reported in the press. Notwithstanding the obvious practical difficulty of rendering secret a public judgment which had been freely and properly reported in the press, the Act does not purport to have that effect and does not, in my opinion, do so. It simply ensures, for instance, that an individual cannot be questioned about such convictions in defined contexts or be prejudiced if details of the spent convictions come to the attention of a current employer during the course of that employment. As Maurice Kay J held in R (Pearson) v DVLA  EWHC 2482 (Admin) at 15, with which I agree, 'The Rehabilitation of Offenders Act confers certain privileges … '. It does not attempt to go beyond the grant of those limited privileges to provide a right of confidentiality in respect of spent convictions. While the 1974 Act in some respects may place an individual with spent convictions in the same position as someone with no convictions, it does not do so by rendering the convictions confidential; it does so simply by putting in place a regime which protects an individual from being prejudiced by the existence of such convictions. For these reasons I reject the submission that the 1974 Act renders the appellant's convictions confidential. …"
- Mr Bennett drew attention to a curiosity in this judgment. At , it was observed that if Parliament had intended to render a spent conviction confidential, provision could have been made to seal that part of the relevant criminal record such that no one had access to it, except perhaps the individual concerned. No reference was apparently made, however, to s.9 of the Act, which does indeed make provision for the record of a spent conviction to be accessible only on a limited basis:
"9.– Unauthorised disclosure of spent convictions
(1) In this section –
'official record' means a record kept for the purposes of its functions by any court, police force, Government department, local or other public authority in Great Britain, or a record kept, in Great Britain or elsewhere, for the purposes of any of Her Majesty's forces, being in either case a record containing information about persons convicted of offences; and 'specified information' means information imputing that a named or otherwise identifiable rehabilitated living person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which is the subject of a spent conviction.
(2) Subject to the provisions of any order made under subsection (5) below, any person who, in the course of his official duties, has or at any time has had custody of or access to any official record or the information contained therein, shall be guilty of an offence if, knowing or having reasonable cause to suspect that any specified information he has obtained in the course of those duties is specified information, he discloses it, otherwise than in the course of those duties, to another person.
(3) In any proceedings for an offence under subsection (2) above it shall be a defence for the defendant … to show that the disclosure was made –
(a) to the rehabilitated person or to another person at the express requested of the rehabilitated person; or
(b) to a person whom he reasonably believed to be the rehabilitated person or to another person at the express request of a person whom he reasonably believed to be the rehabilitated person.
(4) Any person who obtains any specified information from any official record by means of any fraud, dishonesty or bribe shall be guilty of an offence … "
- The earlier case of Pearson, to which the Master of the Rolls referred, was also cited to me. Under s.45(7) of the Road Traffic Offenders Act 1988 an endorsement relating to disqualification must remain on the licence for eleven years. This would sometimes mean that such an endorsement will remain as evidence of a motoring conviction after the relevant conviction itself has become "spent" by reason of the 1974 Act. Obviously, it may happen, where a person is required to disclose his licence for a job application, that he will thereby have incidentally to disclose the existence of a spent conviction. It was held in Pearson that Article 8 was not engaged, the applicant having argued inter alia that the 1988 Act was in this respect incompatible with his Convention right. Alternatively, the judge was of the view that even if s.45(7) were incompatible, that would be legitimate having regard to Article 8(2). That is to say, it would be a necessary and proportionate encroachment in the pursuit of a legitimate aim. The decision may not be binding, but the reasoning should be regarded as persuasive.
- Maurice Kay J also took into account the fact that the applicant would be able to proceed against the prospective employer if he could prove that he had been refused employment by reason of the spent conviction. Yet that is a considerable burden to discharge, and Mr Bennett argues that a person should not have to be placed in the position of having to sue in such inauspicious circumstances, when he should be protected by not having to reveal the conviction in the first place.
- He also submits that both these decisions were based on a mistaken view that the relevant convictions were effectively in the public domain – for the reason that the protection intended by s.9 had not been taken into account. In this case, the Defendant has raised the point that the 1992 conviction is a matter of "public record". That is logically distinct from the concept of public domain, of course, since provision may be made for the concealment of a record. Moreover, that is effectively what happens by reason of s.9. Correspondingly, therefore, the public domain argument is weakened. The test which has been applied to public domain arguments (albeit in different contexts) is whether, in the light of such accessibility as there is, it is realistic to regard the information as any longer capable of protection: see e.g. Att.-Gen. v Guardian Newspapers (No 2)  1 AC 109, 282B-F and Venables v News Group Newspapers Ltd  Fam 430, 470-471. It is thus well established that the issue of public domain will often require close analysis of the particular facts. It is not simply a matter of black and white: see e.g. the discussion in KGM v News Group Newspapers Ltd  EWHC 3145 (QB) at -.
- My attention was also drawn in this context to a passage in Sir Roger Toulson's work on Confidentiality (2nd edn) at para. 3-151:
"It is suggested that whether information is, or was once upon a time, a matter of 'public record' (whatever the meaning intended by that expression, as compared with the broader expression 'public domain') is simply a factor in determining whether it is so generally accessible that it would not be just to require the party against whom a duty of confidentiality is alleged to treat it as confidential."
- The case gives rise to a number of issues concerning the appropriate law to apply to the various claims and also to questions of jurisdiction. Mr Bennett asks me to rule that English law is applicable and, having done so, to grant summary judgment. It is his submission that it is unnecessary to resolve any contested facts.
- Hitherto, the Defendant's activities have been primarily directed towards damaging the Claimant's reputation and employment prospects in Hong Kong, as this is where he has been based. Since the Defendant does not resist this court's jurisdiction, there is no reason why claims in respect of past publications should not be adjudicated upon here. It does not follow, however, that the court should be so ready, for the future, to regulate his communications in Hong Kong. Although he is in England, it is not obvious why he should be restrained by this court from actions which do not infringe the law there. It has long been recognised that a tort by way of defamatory publication occurs where it is received, read or downloaded. Any publication he has made in Hong Kong, or chooses to make there in the future, would be actionable, if at all, by Hong Kong law. It is not for an English court, generally speaking, to restrain publication there.
- The determination of the appropriate law is clearly of importance. Mr Sinai had argued that this question should be determined as a preliminary issue. But he now recognises that since Mr Bennett is asking for summary judgment the court will need to come to a conclusion on the present application. If in relation to any of the claims the appropriate law is that of Hong Kong, that would clearly preclude summary judgment. I would expect expert evidence to be required.
- In so far as the Claimant is seeking damages for defamation in respect of past publications, it seems clear that the proper law of the relevant alleged tort would be that of Hong Kong. That is subject to certain qualifications, since some issues are recognised as being for the lex fori and thus, in this case, the law of England. One example is that of limitation, which arises here because Mr Sinai seeks to strike out paragraph 16 of the particulars of claim on the ground that the relevant claim is time-barred.
- Moreover, to the extent that the Claimant is seeking to restrain future libels in Hong Kong, it seems to me that this too would have to be judged by local law. The provisions of the Rehabilitation of Offenders Act 1974 would not extend to Hong Kong. They do have a corresponding ordinance relating to the rehabilitation of offenders, which was placed before the court, but that naturally applies only to convictions in Hong Kong: see s.2(1)(a).
- The position is less clear with regard to breach of confidence and/or the release of private information. There is a strong argument, however, that any such infringement would also be regarded by English law as occurring in the place of publication.
- Mr Sinai referred to dicta in Douglas v Hello! Ltd (No 2)  EMLR 28 at  and . It was held to be "well arguable" that the claimants were entitled to rely on publication of photographs in England as the essence of their complaint. The court drew an analogy with the rule in libel as to the place of publication and seems to have proceeded on the basis that the cause of action arose in tort, although reference was also made to an alternative analysis based in equitable principles. Either way, it seems, there was thought to be "a good case" that the relevant law was that of England and Wales (being the relevant place of publication). The equitable analysis was on the footing that if there was a right in restitution for breach of a duty of confidentiality, that too would be actionable in the place of publication.
- It does not seem to me yet to be finally determined whether privacy claims are to be classified in English law as tortious in character: see e.g. the discussion on this subject in Mosley v News Group Newspapers Ltd  EMLR 679. The question of labelling may not be critical. Ultimately, it may well turn in any event upon where the particular acts took place, or will take place, which are said to constitute the infringement of the rights in question. Mr Sinai submits that the question is determined by ss.11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995. He may be right, but I do not believe that it is necessary for me for present purposes to rule that such a claim is based on "tort or delict".
- The communications which the Defendant is likely for the immediate future to make are going to be in Hong Kong, where the Claimant is living and working. In so far as any right of privacy is to be infringed, that is where the infringement will occur. It thus seems clear that it is the law of Hong Kong that is material. That would rule out summary judgment in itself.
- To the extent that the Claimant seeks to restrain any future communication in this jurisdiction, there is as yet no sufficient evidence of intention on the Defendant's part. Moreover, the argument that a reasonable expectation of privacy could go so far as to embrace a spent conviction does not seem to me apt for summary judgment.
The application for summary judgment on the data protection claim
- I turn to consider the claim put forward by the Claimant under the Data Protection Act 1998. One of the attractions of this legislation, from his point of view, is that he is seeking to restrain the Defendant from processing data in this jurisdiction in accordance with English legislation. Such a claim, therefore, would not appear to give rise to problems of either jurisdiction or "proper law". Mr Sinai asks that I should rule now, under the English rules relating to conflict of laws, that Hong Kong law applies to this claim also. I do not accede to that submission, however, because the relief the Claimant seeks is confined to processing in England by a data controller established here. That contrasts with the position in relation to libel and/or privacy, where the complaint embraces acts of publication (past or future) in Hong Kong. There are, of course, other reasons why Mr Sinai resists an order for summary judgment on the data protection claim.
- Mr Bennett referred to the Recital to Directive 95/46/EC of 24 October 1995:
(2) Whereas data processing systems are designed to serve man; whereas they must, whatever the nationality or residence of natural persons, respect their fundamental rights and freedoms, notably the right to privacy, and to contribute to economic and social progress, trade expansion and the well-being of individuals
(10) Whereas the object of the national laws on the processing of personal data is to protect fundamental rights and freedoms, notably the right to privacy, which is recognised both in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and in the general principles of Community law; whereas, for that reason, the approximation of those laws must not result in any lessening of the protection they afford but must, on the contrary, seek to ensure a high level of protection in the Community … "
- Having regard to those general objectives, Mr Bennett invites particular attention to s.10 of the 1998 Act which was, of course, intended to implement the relevant directives. It is provided that a data subject may require a data controller, by notice, to cease the processing of specified data if it is causing or likely to cause substantial damage or substantial distress that would be "unwarranted". On 10 February 2011 a request under s.10 was made on the Claimant's behalf through the vehicle of the re-amended particulars of claim, at paragraphs 9-12. It is provided in s.10(2) that, if certain conditions are met, as identified in paragraphs 1-4 of Schedule 2, the requirements of s.10(1) will not apply. None of these, however, has any application to the present case.
- So far, there has been no response to the s.10 Notice. The court has the power to order the Defendant to comply with the Notice to the extent that it thinks fit, provided that the Notice was "justified to any extent" and there has been failure to comply: see s.10(4).
- It is alleged in paragraph 10 of the re-amended particulars of claim that the Claimant has been caused substantial damage and distress by data processing carried out by the Defendant. This is essentially, as I understand it, a reference to the Defendant's having used his computer for the sending of emails about the spent conviction. The Defendant has, so far, not put in issue the claim of damage or distress and accordingly, Mr Bennett submits, he should be taken to have admitted that the Claimant has indeed suffered substantial damage and distress: see CPR 16.5(5).
- It is provided by Article 8, para 5, of the Directive as follows:
"Processing of data relating to offences, criminal convictions or security measures may be carried out only under the control of official authority, or if suitable specific safeguards are provided under national law, subject to derogations which may be granted by the Member State under national provisions providing suitable specific safeguards. However, a complete register of criminal convictions may be kept only under the control of official authority."
- Mr Bennett submits that the use of a computer to send emails would fall within the statutory definition of processing. Data is defined as information which is processed by means of equipment operating automatically in response to instructions given for that purpose: see s.1(1)(a). For the purposes of the Act, the "data controller" is the person who determines the purposes for which and the manner in which personal data are to be processed. The "data processor" (who may or may not be a different person) would be any person who processes the data on behalf of the data controller. The data subject in this case is the Claimant.
- The concept of "sensitive personal data" is defined in s.2 of the Act and it is submitted that a spent conviction would fall within that category. By virtue of s.2(h) sensitive personal data would include "any proceedings for any offence committed or alleged to have been committed by [the data subject], the disposal of such proceedings or the sentence of any court in such proceedings".
- Against this background, the Claimant seeks an injunction to prevent any further processing of the information about his spent conviction, since it is likely to continue to cause him substantial distress. He argues that the Defendant seems bent on damaging his career and employment prospects. Indeed, as long ago as 23 December 2004, the Defendant himself was asserting to the human resources department at ABN AMRO, in Hong Kong: "On more than one occasion he has been dismissed by former employers when his background was revealed".
- It is necessary, therefore, to focus on the statutory concept of "unwarranted". Unsurprisingly, it would seem that the court can take into account the respective rights of the parties under the European Convention in determining whether or not the particular damage or distress contemplated could be warranted. For example, one could imagine circumstances in which a public interest argument in support of a defendant's Article 10 right of free speech would prevail. On the other hand, in these particular circumstances, where the defendant has made numerous communications over the years to prospective employers and public authorities in Hong Kong, it is difficult to see what more there is left to achieve – even assuming that there was ever a public interest in disclosing the Claimant's spent conviction.
- The Claimant raises an alternative argument by reference to the Data Protection Act. He seeks an order under s.14(1) to prevent any further processing. The ground relied upon is that it is apprehended that the Defendant will make further inaccurate publications. Not least, it is said that the communications have been inaccurate because they do not include the fact that the conviction is spent in accordance with the provisions of the 1974 Act.
- Mr Sinai responds to these arguments on data protection by raising what he submits to be a number of triable issues. He says that an investigation is required to establish the purpose for which the past disclosures were made and the Defendant's intentions. There is no basis upon which the court could, as yet, conclude that any relevant data has been processed unfairly.
- He suggests that the Claimant is "forum-shopping" in order to take advantage of English law when there would be no corresponding remedy available in Hong Kong.
- As to the concept of "processing", the Defendant relies on the following propositions. First, it is said that the definition of processing contained in s.1(1)(a) would not embrace the composing and sending of an email containing information about the Claimant's conviction. Reference was made to the decision in Durant v Financial Services Authority  EWCA Civ 746, in order to show that not all information retrieved from a computer is necessarily to be categorised as personal data.
- He also relies upon s.36 of the Act in support of his submission that it does not apply to data processed for "domestic purposes". (That would clearly not sit comfortably alongside any public interest argument.)
- As to s.14 of the Act, Mr Sinai points out that the remedies provided for are rectification, blocking, erasure or destruction of the relevant data. This could not form the basis for a permanent remedy such as an injunction. Also, no explanation is offered as to how the data could be destroyed when there is nothing to show that it is actually "stored".
- It is provided in s.13 that damage has to be caused by reason of a contravention of the Act. Yet no evidence has been produced of damage, let alone causation. As I have already made clear, the Claimant is not seeking compensation under the 1998 Act. The absence of damage would also mean that the Claimant would be unable to obtain rectification, blocking, erasure or destruction of the data under s.14(4).
- Finally, Mr Sinai submits that what the Defendant has published, and what he intends to go on publishing, cannot be said to be "inaccurate". It is not possible to argue that s.4 of the 1974 Act has the effect of rendering an allegation about the existence of a conviction inaccurate merely because it has become "spent". There must be limits to the re-writing of history.
- Mr Sinai argues that even if it is right that this claim should be judged against English law, there is no basis upon which the court could at this stage grant summary judgment. That is particularly so in circumstances where the boundaries in an area of law are unclear and developing. I agree with that submission.
The application to strike out the libel claim as time barred
- Next, I must address the application to strike out paragraph 16 of the pleading. It is founded on a defamatory publication to ABN Amro Bank on 2 October 2005. As I have noted, the proceedings were begun over three years later on 23 December 2008. If the appropriate law for resolving limitation issues is that of England, then the relevant limitation period is twelve months. The Defendant has placed evidence before the court suggesting that the Claimant was aware of the publication before the limitation period, but there is no contrary evidence to refute that or to explain why, if there was indeed earlier knowledge, the Claimant nevertheless failed to take prompt action. Accordingly, there are no materials on which the court could exercise its discretion to disapply the primary limitation period under s.32A of the Limitation Act 1980. I need not go into that, although Mr Sinai has flagged up that he would have wished to make an argument, had it been a live issue, to the effect that the cogency of the evidence available to him about the events of 2005 has been adversely affected by the lapse of time. In the circumstances, it seems that the right course is to accede to the Defendant's application and strike out paragraph 16.
Security for costs
- Now the time has come to consider the claim for security. The principle is clear. The court has a discretion to order security with a view to protecting the relevant defendant in respect of any additional cost that would have to be incurred in enforcing an award of costs against the claimant in the jurisdiction where he resides. The object is to guard against the possibility that this Defendant will succeed on one or more issues and obtain an award of costs which has to be enforced in Hong Kong. Some evidence is available as to the likely marginal cost; that is to say, the additional cost that would have to be incurred by way of enforcing in Hong Kong as opposed to doing so in England. There is no evidence of the Claimant having any assets here.
- On the Claimant's behalf, an offer has been made of £10,000 but this seems to me to be low. At this stage, I believe it is reasonable to order that security be provided in the sum of £20,000. I have no evidence to suggest that this would be beyond the Claimant's means or that such an order would inhibit his access to justice.
- The Claimant seeks an order that, for the time being at least, he should be protected by an order for anonymisation of the parties. Although I have ruled against him on the summary judgment applications, I shall proceed on the basis that he may succeed at trial in establishing a right to confidentiality in respect of the spent convictions. His objective would be defeated if all is revealed through the court process. Accordingly, I will grant anonymity subject, as always, to review if circumstances change.
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