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Allegations of data protection breaches fall on deaf ears in Clyde & Co success

  • 22 August 2019 22 August 2019
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co has successfully concluded the strike out of a noise induced hearing loss claim, despite allegations by the Claimant's solicitors that our efforts to obtain disclosable audiology evidence had breached GDPR.

Allegations of data protection breaches fall on deaf ears in Clyde & Co success

The allegation of a breach of GDPR was wholly misconceived as the additional audiology evidence we sought was directly referred to in records that the Claimant released to us himself.

The Claimant's Solicitors had twice failed to comply with an unless order requiring specific disclosure of the additional audiology evidence, the contents of which would likely have had a detrimental effect on the Claimant's prospects of success. The actions of the Claimant and his representatives were judged to have prevented the just disposal of proceedings. QOCS was disapplied, demonstrating that obstructive behaviour on the part of claimants will not be tolerated by the Courts.

Background

The Claimant issued a claim for noise induced hearing loss in April 2017. We were instructed to act on behalf of one of the Defendants, a former employer of the Claimant.

During the course of proceedings, we sought copies of the Claimant's occupational health records. Despite the records being provided to the Claimant in October 2018, the records were not provided to us until January 2019. The records referred to a further audiology report obtained after he had left our client's employment, which had categorised the Claimant's hearing as 'HSE level One'. This categorisation is considered normal, and indicated no hearing loss or even development of hearing loss at that time. This information was highly relevant to the allegations made against our client.

The company responsible for preparing the additional audiology report confirmed its existence to us in an email. However, they confirmed that they would require authority from the Claimant to release it.

We issued an application seeking specific disclosure of the additional audiology records. The Claimant failed to comply with the resulting unless order. We therefore applied to strike the claim out; this was supported by all other defendants.

The Claimant issued a counterapplication, alleging that the email confirming the existence of the additional audiology report breached GDPR, and that our previous applications for specific disclosure were misleading.

The claim was struck out in full. The Court was satisfied that we had not mislead the Court and that the Claimant had not made reasonable efforts to comply with the relevant orders, having already consented to disclose his audiology.

The Court ordered that QOCS be disapplied in light of the conduct of the Claimant and his representatives. We are awaiting the outcome of a hearing to determine the issue of wasted costs.

What can we learn?

  • It was apparent to the Court that the alleged breaches of the GDPR were misconceived. We had provided a full and clear chronology of our actions and how we had become aware of the additional records. It was apparent that there was a concerted effort to prevent the relevant records being disclosed. Those records would have had a significant adverse effect on the claim, and the Claimant was unable to demonstrate that he had made anything more than cursory efforts to obtain the report.
  • Given that there remains some confusion as to the application of GDPR and how information may be obtained, it would be unsurprising to see further counter-allegations of this nature where documents sensitive to causation should be disclosed.

This article was authored by David Wynn, Partner, and Stevie Blaylock, Associate.


CASE UPDATE:

Following disapplication of QOCS, the Final Order recorded that the Claimant's solicitor's conduct had been such to justify a wasted costs order under CPR 46.8. This resulted in the Court ordering  the Claimant's solicitor to pay our client's costs from disclosure onwards on an indemnity basis.

Thereafter the Claimant's solicitor was served with a statement of our client's costs totalling in excess of £34,000 and following considerable negotiations settlement terms were reached affording our client a recovery of £27,500 achieving a costs recovery of 80%.

Defendants are entitled to take a case at face value and defend it accordingly. This matter was pleaded at £5,000 yet the unreasonable conduct of the Claimant's solicitor served to unreasonably protract the investigation and generate considerable legal expense.

The terms of the final Order illustrate a resounding message that in today's post-Jackson era where proportionality underpins the Overriding Objective, the Courts will not hesitate to apply costs sanctions to parties whose improper conduct obstructs the proper administration of justice.

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