A High Court judge has made a veiled warning to solicitors not to over-plead on data protection cases and incur massive costs on unnecessary litigation.
In Cleary v Marston (Holdings) Ltd, Mr Justice Nicklin directed that the claim worth £3,000 should be transferred out of the High Court and allocated to the small claims track, to be heard in the county court.
Solicitors for the claimant estimated that the costs of bringing the case to trial would be almost £47,000, although they indicated they would not oppose any decision to transfer the claim to the county court.
The claim was brought by an individual whose colleague was incorrectly emailed by the defendant, a debt recovery company. It was issued in the High Court and brought on the basis of breach of data protection legislation, misuse of private information and breach of confidence.
The court heard that the claimant’s ATE policy covered costs of up to £25,000 which were recoverable from the defendant.
The judge said it had been ‘inappropriate and without foundation’ for the claimant’s solicitors to make what he described as a threat to dissuade the defendant from seeking to have the claim allocated to the small claims track.
A litigation executive from the claimant’s solicitors, FD Law Limited trading as Hayes Connor Solicitors, told the court that the claim was ‘outside the limited equity jurisdiction of the county court’, even if it was only worth £3,000. She stated that data breach claims required a specialist judge and covered a developing area of law, and so needed to be heard in the High Court.
The judge said: ‘Those who are advising claimants who want to bring data breach claims need to think carefully about the claims that are included.
‘There can be and often are several overlapping claims: breach of confidence, misuse of private information and breach of data protection legislation. In many cases, this will simply represent three different ways of characterising what is essentially the same complaint.’
He added it was important that claimants (and those advising them) do not pursue claims that ‘add little but yet have the potential to make the case more complicated and lead to increased costs ultimately to resolve what in many cases will be a straightforward claim’.
The judge said in this case there was limited factual dispute and the legal issues that arose for decision were not complex and did not require a specialist judge.
He added: ‘No ordinary litigant would incur costs approaching £50,000 in order to recover £3,000. The likely irrecoverable costs would almost certainly exceed the sum that Mr Cleary was claiming in damages. In that respect, litigation of his claim in the High Court makes no sense.’
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