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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Sofola v Lloyds TSB Bank [2005] EWHC 1335 (QB) (27 June 2005) URL: http://www.bailii.org/ew/cases/EWHC/QB/2005/1335.html Cite as: [2005] EWHC 1335 (QB) |
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QUEEN'S BENCH DIVISION
B e f o r e :
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Abayomi Sofola |
Claimant |
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- and - |
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Lloyds TSB Bank |
Defendant |
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Sarah Palin (instructed by Cameron McKenna) for the Defendant
Hearing dates: Wednesday 6th April2005
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Crown Copyright ©
Mr Justice Tugendhat :
i) On 3 June 2004 he went to the Bank to pay some bills. He had written two cheques at home one for BT in the sum of £132. He handed this to the cashier, together with both bills that he wanted the Bank to pay and the other cheque.
ii) While the cashier was swiping the cheques through a machine, the Claimant decided to ask her to tell him the balance on his account. In response to that request, the cashier asked him for proof of identity. He offered a number of cards, which were not acceptable, and then she asked if he had a driving licence. He did have on him a colour photocopy of his driving licence, which he handed to the cashier.
iii) The cashier handed this to a supervisor, who came to the counter and asked the Claimant for his signature, which he gave to her twice over. She then gave him the balance on his account, which was more than £1,500 in credit.
iv) The Claimant then asked for the return of his license document. The cashier told him that there was a note on his account and that the supervisor was checking with his branch. He was asked to wait, and did so for about 45 minutes.
v) The police then arrived and he was kept waiting or talking in public for a further 20 to 30 minutes. The police officer told the Claimant that the supervisor had told him that the Claimant had had a mortgage offer withdrawn by the Bank in 1996 after he had been sacked for fraud. The Claimant said it was untrue that he had been sacked for fraud. The police accepted that the copy of the licence was a photocopy and not a forgery, and that he was not trying to withdraw money with it. They then left.
vi) There was at that time a record on the Claimant's file with the Bank which was dated 31 October 1996 and which read:
"Phone call received from Lisa Morgan at Customer Care in Birmingham, regarding an ongoing complaint by Mr Sofola in respect of his declined mortgage application. After an Offer Letter had been issued, but prior to completion of the mortgage, the Bank discovered that Mr Sofola had been dismissed from his job for alleged fraud and Homeloans withdrew the offer of advance".
"customer came into Camberwell green branch to withdraw funds using a photocopy of a drivers licence. Due to previous notes on screen the police were called. Police advised no offense had been committed. Customer requested to speak to the manager to discuss matter further. ve"
THE CLAIM
"You were unhappy that on the day in question the staff in the branch were unable to see that the document you produced for identification was a photocopy of your driving licence and not a forgery. It was because of this together with information that was contained on your account notes that the police were called. Please accept my apologies ... I will arrange to have the information removed from your account notes ...
You have also pointed out that our records are incorrect as it is noted that you came to withdraw funds from your account when you say that you did not ... "
i) Unlawful processing of data, identifying the Data Protection Act 1998, and in particular principles 1,2,4, 5,6 and 7;
ii) Breach of confidence;
iii) Interference with his right under Art 8 and the Human Rights Act 1998;
iv) Damages for defamation.
"1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless-
(a) at least one of the conditions in Schedule 2 is met, and
(b) in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.
2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed.
4. Personal data shall be accurate and, where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data."
""sensitive personal data" means personal data consisting of information as to- ... (g) the commission or alleged commission by [the data subject] of any offence".
i) The bank officials made false statement to the police
a) When they called the police, that the photocopy of his driving license which he had provided to them was a fake;
b) After the police had arrived, the supervisor told them that he had "had a mortgage offer withdrawn by the bank in 1996 after [he] was sacked for fraud"
ii) That these allegations were false because it was not true that he was sacked for an alleged fraud and the photocopy was not a fake;
iii) That the bank officials said this maliciously, to attempt to justify their having called the police when they had no justification for having called them;
iv) The bank then entered a further statement on their records relating to June 2004, which he alleges is false in the respects set out in para 10 above.
"(1) An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2) An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if-
(a) the individual also suffers damage by reason of the contravention, or. ... "
'''data controller' means, subject to subsection (4), a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be, processed".
"(1) If a court is satisfied on the application of a data subject that personal data of which the applicant is the subject are inaccurate, the court may order the data controller to rectify, block, erase or destroy those data and any other personal data in respect of which he is the data controller and which contain an expression of opinion which appears to the court to be based on the inaccurate data.
(2) Subsection (1) applies whether or not the data accurately record information received or obtained by the data controller from the data subject or a third party but where the data accurately record such information, then-
(a) if the requirements mentioned in paragraph 7 of Part II of Schedule 1 have been complied with, the court may, instead of making an order under subsection (1), make an order requiring the data to be supplemented by such statement of the true facts relating to the matters dealt with by the data as the court may approve, and
(b) if all or any of those requirements have not been complied with, the court may, instead of making an order under that subsection, make such order as it thinks fit for securing compliance with those requirements with or without a further order requiring the data to be supplemented by such a statement as is mentioned in paragraph (a).
(3) Where the court-
(a) makes an order under subsection (1), or
(b) is satisfied on the application of a data subject that personal data of which he was the data subject and which have been rectified, blocked, erased or destroyed were inaccurate, it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction.
(4) If a court IS satisfied on the application of a data subject-
(a) that he has suffered damage by reason of any contravention by a data controller of any of the requirements of this Act in respect of any personal data, in circumstances entitling him to compensation under section 13, and
(b) that there is a substantial risk of further contravention in respect of those data in such circumstances, the court may order the rectification, blocking, erasure or destruction of any of those data.
(5) Where the court makes an order under subsection (4) it may, where it considers it reasonably practicable, order the data controller to notify third parties to whom the data have been disclosed of the rectification, blocking, erasure or destruction. "
THE APPROACH TO BE ADOPTED BY THE COURT TO THE APPEAL
"The court may give summary judgment against a claimant ... on the whole of a claim ... if--(a) it considers that--(i) that claimant has no real prospect of succeeding on the claim ... ; or (ii) .... ; and (b) there is no other reason why the case or issue should be disposed of at a trial".
"Under r 24.2, the court now has a very salutary power, both to be exercised in a claimant's favour or, where appropriate, in a defendant's favour. It enables the court to dispose summarily of both claims or defences which have no real prospect of being successful. The words 'no real prospect of being successful or succeeding' do not need any amplification, they speak for themselves. The word 'real' distinguishes fanciful prospects of success or, ... , they direct the court to the need to see whether there is a 'realistic' as opposed to a 'fanciful' prospect of success ....
It is important that a judge in appropriate cases should make use of the powers contained in Part 24. In doing so he or she gives effect to the overriding objectives contained in Part 1. It saves expense; it achieves expedition; it avoids the court's resources being used up on cases where this serves no purpose, and, I would add, generally, that it is in the interests of justice. If a claimant has a case which is bound to fail, then it is in the claimant's interests to know as soon as possible that that is the position. Likewise, if a claim is bound to succeed, a claimant should know this as soon as possible ... Useful though the power is under Part 24, it is important that it is kept to its proper role. It is not meant to dispense with the need for a trial where there are issues which should be investigated at the trial. ... , the proper disposal of an issue under Part 24 does not involve the judge conducting a mini trial, that is not the object of the provisions; it is to enable cases, where there is no real prospect of success either way, to be disposed of summarily." "
"94 For the reasons which I have just given, I think that the question is whether the claim has no real prospect of succeeding at trial and that it has to be answered having regard to the overriding objective of dealing with the case justly. But the point which is of crucial importance lies in the answer to the further question that then needs to be asked, which is--what is to be the scope of that inquiry?
95 I would approach that further question in this way. The method by which issues of fact are tried in our courts is well settled. After the normal processes of discovery and interrogatories have been completed, the parties are allowed to lead their evidence so that the trial judge can determine where the truth lies in the light of that evidence. To that rule there are some well-recognised exceptions. For example, it may be clear as a matter of law at the outset that even if a party were to succeed in proving all the facts that he offers to prove he will not be entitled to the remedy that he seeks. In that event a trial of the facts would be a waste of time and money, and it is proper that the action should be taken out of court as soon as possible. In other cases it may be possible to say with confidence before trial that the factual basis for the claim is fanciful because it is entirely without substance. It may be clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based. The simpler the case the easier it is likely to be to take that view and resort to what is properly called summary judgment. But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman, at p 95, that is not the object of the rule. It is designed to deal with cases that are not fit for trial at all. "
THE CONTENTIONS OF THE PARTIES ON THE APPEAL
20. In support of their application for summary judgment and for the claims to be struck out, the Bank contended that there is a defence of qualified privilege.
21. It is submitted that the law is correctly stated in Gatley on Libel & Slander 10th ed para 14.35 (itself based on Lightbody v Gordon (1882) R. 934, 937 cited in footnote 5). The passage in Gatley reads:
" ... it is for the purpose of privilege, the duty of everyone who knows or believes that a crime has been committed to assist in the discovery of the wrongdoer. Any complaint made, or information given, for that purpose to the police ... will, in the interests of society, be privileged and the mere fact that the defendant volunteered the information will make no difference" .
CONCLUSION ON THE APPEAL
EVENTS SINCE THE HEARING OF THE APPEAL
"Mr Sofola's case is not that the person or persons appointed by Lloyds TSB as data controller in respect of the data which I have identified was in breach of his or her duty, and it therefore follows that under s.13 he would have no claim against Lloyds TSB for breach of a duty by its data controller or data controllers. Further, he would have no claim under s.13 because of the nature of the damage that he claims to have suffered ... In this case Mr Sofola does not allege that the distress, as he puts it embarrassment, and psychological and personal distress was caused to him on an occasion by reason of a breach of duty by the data controller which also caused him damage. There is no claim under s.13 to a free-standing award for distress, however termed, in the absence of proof as well of damage of a kind that the law would recognise".
"17. I add by way of footnote this. In a judgment I gave (and with which Longmore LJ agreed) on 16 January 2001 in Gary Lee Hough v Chief Constable of the Staffordshire Constabulary (where we held that in the circumstances of that case an arresting police officer could properly rely on a PNC entry and so should not have been found liable for wrongful arrest) I suggested, in paragraph 18:
"Perhaps, however, a claim in negligence would lie against the officer making the entry in the first place (or perhaps for failing later to remove it) if it could be established that he had no proper basis for ever having made it."
18. I was unaware at that time of the provisions of section 22(1) of the Data Protection Act 1984. Now that this section has been drawn to my attention, it would seem to me to provide an altogether better basis for such a claim than the tort of negligence.
19. For the reasons I gave earlier, however, it cannot avail a claimant like this appellant, whose claim for damages for wrongful arrest has already been met. "
"An individual who is the subject of personal data held by a data user and who suffers damage by reason of the inaccuracy of the data shall be entitled to compensation from the data user for that damage and for any distress which the individual has suffered by reason of the inaccuracy."
"This was due to an oversight by my client, and also the fact that to remove such historic notes is extremely complicated and time consuming and involves the writing of a bespoke programme by two IT technicians to access the historic data and remove or alter it ... It is not clear whether there had been an earlier attempt to remove these notes which had been unsuccessful. .. There was of course no intention to mislead the Court or Mr Sofola ... ".
"I do not believe that any such agreement was reached between the parties, and my client was not ordered by the Court to amend the notes"
He says that that, and the possibility of adding additional words to the note were canvassed at the hearing, that it had been intended to raise the matter with the Claimant in correspondence following that hearing, and that "any amendment or addition to the account notes for 3rd June 2004 has been delayed pending the outcome" of the appeaL
DISCUSSION ON THE EVENTS SINCE THE HEARING OF THE APPEAL.
"4.21 If the appeal court refuses permission to appeal on remaining issues at or after an oral hearing, the application for permission to appeal on those issues cannot be renewed at the appeal hearing. See section 54(4) of the Access to Justice Act 1999."
"(4) No appeal may be made against a decision of a court under this section to give or refuse permission (but this subsection does not affect any right under rules of court to make a further application for permission to the same or another court)."
"(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless -
(a) it is necessary to do so in order to avoid real injustice;
(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and
(c) there is no alternative effective remedy.
(2) In paragraphs (1), (3), (4) and (6), "appeal" includes an application for permission to appeal. ...
(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.
(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.
(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.
(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.
(8) .....
i) There is no record of any reasons given by the Master;
ii) The Master and Mitting J had to proceed on what the Bank now accept to be the mistaken basis that the 1996 record had been deleted when in fact it had not;
iii) No doubt in large measure as a result of the foregoing, Mitting J gives no
reasons for holding that the claim under s.14 had no real prospect of success, and the reasons he gave for holding that the claim under s.13 had no real prospect of success appear to be based on a mistaken view of the nature of the claim.
"In our judgment it must at least be shown, not merely that the fresh evidence demonstrates a real possibility that an erroneous result was arrived at in the earlier proceedings (first instance or appellate), but that there exists a powerful probability that such a result has in fact been perpetrated. That, in our view, is a necessary but by no means a sufficient condition for a successful application under CPR 52.17(1). It is to be remembered that apart from the requirement of no alternative remedy, "[t]he effect of reopening the appeal on others and the extent to which the complaining party is the author of his own misfortune will also be important considerations" (Taylor v Lawrence, 547). Earlier we stated that the Taylor v Lawrence jurisdiction can only be properly invoked where it is demonstrated that the integrity of the earlier litigation process, whether at trial or at the first appeal, has been critically undermined. That test will generally be met where the process has been corrupted. It may be met where it is shown that a wrong result was earlier arrived at. It will not be met where it is shown only that a wrong result may have been arrived at."
"25.4 The application for permission must be made by application notice and supported by written evidence, verified by a statement of truth. "