|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
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 >> Rolfe & Ors v Veale Wasbrough Vizards LLP  EWHC 2809 (QB) (07 September 2021)
Cite as:  EWHC 2809 (QB)
[New search] [Context] [View without highlighting] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION MEDIA & COMMUNICATIONS LIST
B e f o r e :
|MR ALAN ROLFE||First Claimant|
|MRS KAREN ROLFE||Second Claimant|
|MISS ELIZA ROLFE (By her Litigation Friend, Mr Alan Rolfe)||Third Claimant|
|VEALE WASBROUGH VIZARDS LLP||Defendants|
UPON Hearing Mr Tom Clarke of counsel instructed by Forbes Solicitors for the Claimants
And upon hearing Ms Felicity McMahon of counsel instructed by the Defendants, for the Defendants
Crown Copyright ©
IT IS ORDERED AS FOLLOWS:
1) Summary judgment in respect of the Claim is granted to the Defendants.
2) The Claimants shall pay the Defendants costs to be assessed if not agreed. The court is of the view that, it not being possible to summarily assess costs on the day of hearing, it is disproportionate to list a further hearing for a summary assessment.
3) The basis for assessment of costs shall be the Indemnity Basis. The reasons for this are the strong observations of this court as to the nature of the claim in terms of exaggeration and lack of credible evidence of distress, and that the court regards the claim as speculative given its de minimis nature, furthermore the court takes into account the Defendants' conduct in making a Part 36 offer which it beat.
4) The Claimants shall within 14 days of service of this order make an interim payment on account of costs in the sum of £11,000 (no VAT being claimed on the schedule), the court noting the submissions made by the Claimants as to their objections to the level of costs sought compared with the value of the claim being defended and the complexity or otherwise of the work, and the court also noting that other arguments are likely to be available to the Claimants on the issue of reasonableness at an assessment such that a conservative sum has been ordered.
5) Time for appeal is extended to 21 days after the handing down of the Supreme Court decision in Lloyd v Google.
"The email in question attached a letter on behalf of my firm's client Moon Hall Schools Educational Trust. That letter is attached at pages 1-28 of BJH1 (pages 2, 24 and 28 are blank as they were when the letter was sent by email).
It contained the Claimants' names, their address, the amount of school fees (together with interest and surcharges) owed by the First and Second Claimants to Moon Hall Schools Educational Trust, a statement of account of school fees for the past five years, and reference to proposed legal action which would be taken if the debt was not paid. It does not contain any of the First or Second Claimant's financial information in terms of bank or card details, income or financial position. Nor does it contain any reference to the Third Claimant's location other than the school she attended and her parents' address, in particular there is no information relating to the locations of school trips or details relating to the school bus.
4. Due to a typographical error made by one of the firm's paralegals it was instead sent to an individual with an email address one character different to the Second Claimant. The error was realised swiftly. On the same day the email was sent, the incorrect recipient notified my firm of the error by replying to the email. My colleague asked the individual to delete the item from both their inbox and deleted items folder. They confirmed this the next day.
5. The email was encrypted as is standard for emails sent via our email systems. My firm's Head of IT reviewed the properties of the sent email and has confirmed to me that it was not sent via basic SMTP, but rather by TLS, confirming that transmission between our email gateway and the Gmail receiving server was encrypted and not in plain text. This means that the only person able to view that email between when it was sent and when it was deleted were those with access to the recipients email account."
"I understood it to be common ground that the threshold of seriousness applied to section 13 as much as to MPI [misuse of private information]. That threshold would undoubtedly exclude, for example, a claim for damages for an accidental one-off data breach that was quickly remedied."
"Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press's freedom to report it. What harm could it possibly do?"
"On the facts, the Cs cannot have suffered damage or distress above a de minimis level. The court must look at the reality of the personal information in question and the circumstances in which it was inadvertently sent to one third party:
a. The nature of the private information in question:i. This is not a case where intimate information about health or a sexual relationship are in play. Names and home address are given, but no further details of home life, no phone numbers are included. There are no bank details or details of the state of the Cs finances.ii. The only financial details are the invoice for school fees (the level of fees being publicly available on the school's website), and the statement of account of school fees for the past 5 years i.e. the amounts C1 and C2 had paid for C3's schooling. These are 25 pages into the attachments. There are documents asking for other financial information, but these are blank and contain no personal data. Whilst the letter states that C1 and C2 have not paid one term's bill, it gives no information as to why that it. Is does not say they cannot do so, or anything about their financial position. It states the mere fact of non-payment of this bill, and that if payment is not made, legal action may result.iii. Whilst Cs assert that there is data relating to C3's location and transport, the only reference to transport is a fee for it not giving any details of what this transport is or where this transport takes place, contrary to the assertion at para. 9c POC. Therefore the only location data is the school and the Cs' home address.
b. The circumstances of disclosure:i. The information was disclosed to one individual only, accidentally as a result of a typographical error;ii. The individual notified D of the error the same day. The next day, when asked to delete the email and confirm that had been done, the individual did so did so 2½ hours later. There is no reason to think that they did not act in good faith, or even that they read all of the documents in any detail.iii. The email was encrypted;iv. That the email went through Gmail servers is irrelevant to the claim, as C1 and C2 have Gmail accounts themselves, and therefore the email, when sent properly, went through this same system.
c. No tangible harm or loss is pleaded or plausible:i. The (unpleaded) inference in the witness statement of Mr Bennett that phishing phone messages were targeted at C1 and C2 because of this incident is an inference that cannot be drawn. Neither the Cs' phone numbers nor any information about who they bank with was in the email or attachments and therefore cannot have been exploited.ii. In his witness statement Mr Bennett quotes from correspondence about the number of hours Mr Rolfe spent dealing with the incident. Firstly, there is no claim made for time spent dealing with the incident. Secondly, the number of hours claimed is wholly implausible. When this claim was made in correspondence D queried it (in particular in relation to an email referred to dated 11 August 2019 which did not deal with this matter but rather the matter of the unpaid fees asked for the correspondence between Cs and D/Moon Hall School. The specific point about the 11 August email was not responded to (but it is repeated in Mr Bennett's witness statement), but after chasing, D was sent the documents which consist of email between 19 and 31 July 2019. these consist of only a small number of short emails. This amounts to 6 short emails, the longest of which is 10 lines long (including "Dear..", "Yours sincerely" etc). Whilst Cs will have read the responses, again, these were brief, none amounting to more than approx. ½ a page and most being very brief indeed. This, it is alleged, took over 24hrs (out of a total of 46hrs which it is claimed C1 spent dealing with this matter). This is simply not plausible, and must be exaggerated. It is submitted this is reflective of the Cs' attitude to the claim as a whole, and the court is entitled to take a sceptical view of their assertions of distress. It need not and should not take them at face value.
d. There was no real loss of control of the personal data: "Loss of control" means something more than one third party briefly having access to this relatively low-level personal information and then confirming they deleted it. In Lloyd it was commercial exploitation of that information on a large scale. There the Court of Appeal found that individuals' "browser generated information" had a value and was of commercial value to Google [at 46,47]. In Gulati v MGN Ltd  QB 149 it was disclosure to journalists who used the personal information as they saw fit, in particular by publishing in a national newspaper. This is very different.
On the facts of this case, it is simply not plausible that Cs have suffered distress above a de minimis threshold in relation to the accidental sending of this email to one recipient who quickly deleted it. Whilst unfortunate, the incident is simply not of a sufficiently serious nature to have caused damage over the threshold."
"21. In Ambrosiadou v Coward  EWCA Civ 409 Lord Neuberger MR said at :
'Just because information relates to a person's family and private life, it will not automatically be protected by the courts: for instance, the information may be of slight significance, generally expressed, or anodyne in nature. While respect for family and private life is of fundamental importance, it seems to me that the courts should, in the absence of special facts, generally expect people to adopt a reasonably robust and realistic approach to living in the 21st century.'
22. This was an accidental one-off incident where an email address was mistyped and sent to an incorrect recipient. The data contained in the email was not of a very private or sensitive nature. Whilst the incident is unfortunate, it was swiftly remedied the recipient emailed the same day to say they were the wrong recipient, and quickly confirmed deletion. Incidents such as this occur regularly in organisations throughout the country. Where no harm is caused, or no harm that overcomes the de minimis threshold, no cause of action lies and no claim for compensation will succeed. If it were not so, the court would be bound up with such cases, every time a minor error occurred. This is a case of no harm done. Exactly the type of case Sir Geoffrey Vos was referring to in Lloyd. The C's have no realistic prospect of proving that they have suffered harm above de minimis, and therefore no realistic prospect of succeeding in their claim for damages."
9/7/21 in draft
2/9/21 in final version
Formal handing down in absentio 10.30am Tuesday 7 September 2021.
Note 1 The name of the child appears and the school year which she is in also appears. [Back]
Note 1 The name of the child appears and the school year which she is in also appears. [Back]