Almost a month ago, I blogged about a decision of the High Court in Ittihadieh v 5-11 Cheyne Gardens RTM Co Ltd & 6 others [2015] EWHC 1491 (QB), noting that the judgment was not yet available. Since then my postbag has been inundated with letters (sample from a Mrs Trellis of North Wales, “Dear Robin Hopkins, If data protection is so important, why does the postman keep delivering my letters next door?”) haranguing me for further information. Following a suitable period to allow excitement to build, I am happy to oblige. It may now be seen here: Ittihadieh v Cheyne Gdns APPROVED judgment 05 05 15.

It is not necessary to repeat the commentary already provided in the previous post. HHJ Seymour QC did indeed construe the SAR as being directed only to the company – based on the wording of it and the payment of only one £10 fee – but he also held that directors would not have been data controllers themselves, applying Southern Pacific Personal Loans [2013] EWHC 2485 (Admin). The relevance of the domestic purposes exemption in section 36 came about because it was suggested some of the company directors may have expressed views about the Claimant amongst themselves in a personal capacity. This, thought the judge, would fall within section 36. In any event, he would have exercised his general and untrammelled discretion (applying Durant) under section 7(9) not to make any order requiring them to search personal email accounts.

Finally, at [50], comes a reminder that even post Vidal-Hall not every potential breach will sound in damages, as the court noted the claim for distress and expressed severe doubts about it in the following terms:

“It is not necessary or appropriate for me to give lengthy consideration to the prospect that Mr. Ittihadieh has suffered distress, but the material before me does indicate that Mr. Ittihadieh is a person who is accustomed to defending his corner, to put it colloquially, if necessary, or perhaps even if not necessary, by resort to legal proceedings, or threat of legal proceedings, and he certainly seems to engage in the expression of colourful phrases in the English language which are not used in polite society. That use of language suggests that he, himself, may not be a particularly sensitive flower.”

That is not to say that the “sensitive flower” test is one which should be applied generally (one struggles to see Max Mosley, to pick a sadomasochistic example at random, meeting the test), but it is an expression of judicial realism.

UPDATE: As some readers will know, Mr Ittihadieh has been granted permission to appeal to the Court of Appeal against the judgment. The issues in the appeal are to be wide-ranging and it will be a useful and welcome opportunity for the Court of Appeal to grapple with the practical working of the DPA in a way which has not really been seen since Durant. In the meantime, the High Court judgment has a question mark over it.

Christopher Knight