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Council persuades High Court judge to quash judgment in default in data breach claim after papers posted to empty office during lockdown

The High Court has quashed a judgment in default awarded against the London Borough of Tower Hamlets because pandemic restrictions had made it impossible to the council to receive the claim concerned.

In Stanley v London Borough of Tower Hamlets [2020] EWHC 1622 (QB) Mr Justice Julian Knowles said the council “had not exactly covered itself in glory” by its earlier delays to the process but that it stood a reasonable chance of successfully defending the action, and said the claimant’s solicitor “exercised poor judgment” in posting the claim when the council’s offices had just shut for the pandemic.

The claimant sued the council for breach of the Data Protection Act 1998, breach of the General Data Protection Regulation (Regulation (EU) 2016/679), breach of confidence, misuse of private information, and breach of Article 8 of the European Convention on Human Rights.

This arose after she attended a child protection conference to discuss her daughter’s welfare, attended by a large number of professionals and her ex-partner.

Following this, the council disclosed the claimant's GP records to all who had attended, which included details of various medical conditions and procedures.

The judge said this comprised “definitely not the sort of information that one would wish to be disclosed to any person who did not need to know it”.

The claimant complained and the council apologised. She then instructed solicitors to pursue a compensation claim of up to £10,000 for psychological distress, stress, inconvenience and financial loss.

After several unsuccessful attempts to engage in pre-action correspondence, her solicitor, a Mr McConville, asked if Tower Hamlets would accept service of proceedings by email and was told this had to be by post.

Mr McConville posted the documents on 25 March and by 10 April the council had not filed an acknowledgment of service.

He therefore applied for judgment in default on 15 April, which was granted by Senior Master Fontaine.

Nicola McDougall, the solicitor instructed by the council, said in a witness statement that it had been unreasonable for Mr McConville to effect service by post when he knew that the council's offices were shut due to pandemic retractions.

The judge said: “I am satisfied that [Tower Hamlets] was right to submit that as things stand at present, the council has real prospects of successfully defending the claim.”

He said the claimant was claiming for psychological distress arising out of the council's alleged data protection breach but had not provided evidence that she had suffered any actionable loss as a result of the council’s alleged unlawful conduct.

Julian Knowles J said there was anyway good reason to set aside the default judgment because the COVID-19 restrictions were unfolding “at precisely the time Mr McConville posted his documents to the council”.

He said: “Mr McConville's witness statement is entirely silent as to why he thought it appropriate to post documents to the council's offices when he knew or should have known they were shut and the council was highly unlikely to be in a position to respond.

“I take [the] point that the council had not exactly covered itself in glory with how it had dealt with (or rather, not dealt with) the pre-action correspondence.

“Its non-responsiveness was not acceptable and I do not excuse it. However, that was history by the time of lockdown.”

He said Mr McConville took no steps to ascertain whether the papers had been received and it was “not good enough for him to say” that because he was told in mid-February to post the documents as “the world shifted on its axis on 23 March 2020”.

The judge said it was incumbent on Mr McConville as a responsible solicitor to contact the council and to discuss how proceedings could best be served.

“I do not find that he unscrupulously took advantage of the situation, but I do find he exercised poor judgement,” the judge said.

“A moment's thought on his part would have shown that it was not fair or reasonable for him simply to place papers in the post to an office that he knew or should have known had been closed down two days before because of a national emergency.”

Mark Smulian

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