Court of Appeal rules on damages for frustration at DPA breach

On a day in which the remedying of privacy breaches of the kind considered by Leveson LJ dominated parliamentary debate, the Court of Appeal (Arden LJ, Lloyd LJ and Ryder J) delivered an interesting judgment on remedies for privacy breaches of the data protection variety.

Halliday v Creation Consumer Finance concerned Mr H’s appeal against a damages award to him under s. 13 of the Data Protection Act 1998. He had obtained default judgment against CCF for its breach of the DPA: it had accidentally and temporarily passed to a credit reference agency incorrect information about his allegedly having an unpaid debt of £1500 (Mr H and CCF had in fact resolved their dispute by that point). The judge at first instance awarded Mr H nominal damages of no fixed amount, but was not satisfied that there was evidence of reputational harm or prejudice to Mr H’s credit position. Mr H therefore received nothing in the way of substantial damages.

His appeal has been allowed. Nominal damages were set at £1 – as Panopticon understands it, this appears to have sufficed as ‘damage’ for s. 13(1) purposes, thereby entitling Mr H to compensation for distress under s. 13(2). He was awarded £750 in recognition of his distress and frustration at CCF’s wrongful processing, but there was no cogent evidence of him having suffered injury to feelings at the time, and CCF’s breach was a technical error rather than an intentional mis-statement. Hence the somewhat insubstantial sum by way of substantial damages.

Mr H sought to rely on Article 24 of Directive 95/46/EC which provides that member states must provide for sanctions where data protection rights have been infringed, but the Court of Appeal held that he could not seek direct enforcement of that provision in private proceedings, and that it was not the function of the civil courts to impose sanctions on data controllers – rather, their function under s. 13 of the DPA was to compensate data subjects.

It is understood that this judgment was delivered ex tempore, with a written judgment to follow, along with more Panopticon analysis.

Robin Hopkins