B e f o r e :
COSTS JUDGE JAMES ____________________
____________________
MR DAVID BOYLE (instructed by the Claimant's law firm) for the Claimant MR PAUL JOSEPH (instructed by the Government Legal Department) for the Defendant ____________________
HTML VERSION OF JUDGMENT ____________________
Crown Copyright ©
COSTS JUDGE JAMES :
I am grateful to the parties for their submissions and also for the time to read some of the papers. It is a well presented file and I have been able to find what I needed. I am very acutely aware that what I have includes privileged and non-privileged documents. I will read aloud as little as necessary to show that I have exercised my discretion correctly. I make very clear that I have not opened this envelope, nor have I looked at what it contains.
With regard to the question of the Data Protection Act and whether I should read the documents in the sealed bundle, I have looked at four particular documents and the first of those, which I will quote from very briefly because it is privileged, is a note from the claimant to his, as he would now be, King's Counsel, Mr Epstein dated in September 2019 and in that he states that:
Those are his words in those instructions to counsel.
The next document which I have looked at is a note and I apologise, it is not clear to me who made that note, whether that is counsel's note of HHJ Freeland's judgment or a note that has come from the judge himself but it is a detailed note and it appears to give information by reference to numbered paragraphs. So if I give you a numbered paragraph, that may be the numbered paragraph in the learned judge's judgment, then again it may not and from that note, which I would say although the note itself may be a document that counsel has generated, obviously Freeland J's (sic) judgment would be a document of public record so I will read aloud from that.
He is talking about damages for delay in a subject access request under 8.2, 13 of DPA 1998, section 13 compensation:
And then later – and that is referred to as paragraph 57(3). Whether that correlates to a paragraph in the learned judge's judgment, I am not sure. Then at paragraph 129 under "conclusions", which I think are the judge's conclusions, again I am not working from the judgment, I am working from what is apparently a note of the judgment, it refers to the fact that the claimant's application for judgment in default should be struck out, the claim against HMCTS should be struck out, Article 6 claim against the MoJ should be struck out but it does say that the Equality Act claim and DPA claims against the MoJ are to proceed to trial. So that is those two.
The other two documents which I have seen are the statement, particulars of claim of 17 August 2018 and at paragraph 59 of that, the claimant states that:
And finally in its defence dated 24 July 2019 the Ministry of Justice says, it talks about the Data Protection Act of 1998 and in particular under reference to the Data Protection Act makes various admissions on subject access requests and the like but of particular interest says at paragraph 19(c) that:
Now, those are all pieces of evidence in the way of contemporaneous documents on the claimant's own very well kept and well presented file for which I am grateful and from those, two things are very clear indeed. First of all, data protection certainly was an issue in these proceedings and continued to be so up to the mediation. That judgment makes that very clear. However, the other documents read aloud make very clear that this was to do with subject access requests after AB v MoJ and, as we are already aware, these documents (the sensitive materials) were destroyed under an undertaking back in 2014 as part of the outcomes of AB v MoJ .
I do not accept that I should read the documents in closed bundle AB2 or AB1 and I do not accept that the contents of closed bundle AB2 and AB1 were of relevance in these proceedings. These were subject access requests after AB v MoJ as the claimant in his own papers makes clear. He has had, and I am sure continues to have, concerns about how his data has been processed but he has been told repeatedly that Mr Joseph has not seen these papers, Mr Sivarayan, as I understand it, has not seen these papers, I have not seen these papers and I have no wish to see these papers.
So before the lunch adjournment, the issue was whether the sensitive materials had been destroyed by the defendant and whether the claimant knew that. I am going to read aloud from certain documents, all of which if not in the common – if not in the public domain are certainly common to the parties and therefore not privileged in that sense.
The first thing is the judgment of Jeremy Baker J from February 2014, further submissions July and September 2014, and this is his judgment on the costs and what he has to say there that is of relevance:
He talks about, in paragraph 20 of his judgment the learned judge talks about:
In paragraph 21 he says the following:
So that is what the learned judge had to say about those materials.
The next thing I found is a letter from the GLD dated 26 January 2017 from somebody called Caroline Featherstone and it is a letter about costs but in that letter at paragraph – she is responding to an email of the claimant's, so paragraph 7 is actually only the fourth main paragraph on the page and in that she says:
She talks about the personnel there, talks about Mr Sivarayan, talks about Mr Henderson and talks about Mr Joseph:
She goes on, however, in the same paragraph to say:
So that is the next thing.
Now, I have then got a number of items from a bundle. I am going to give you the bundle page number before describing the document. You will see why in a moment. So the first item on page 37 of the bundle is a letter of 25 September 2014 to the claimant signed by Sarah Goom, head of division A litigation group at the GLD Treasury Solicitor's department – sorry, 25 September 2014 and she says:
The next item is again a letter from the Treasury Solicitor. This time it is from Duncan Henderson and this is a letter dated 8 October 2014 and he says:
There is some discussion of the fact that:
There is some discussion then about final submissions and so on and so forth. At paragraph 12 he says:
MR JOSEPH: No, it is Mr Hilton.
JUDGE JAMES: Mr Hilton, I am grateful, all right:
At paragraph 14 he says:
I think that is my reference to it having been destroyed and then being served again:
At paragraph 18 he goes on to say:
Now, those are from the bundle, pages 38, 39 and 40.
I then go on to page 86, 87, 88, 89, 90, 91 and 92. In fact, it goes on to page 94 of the bundle and this is a witness statement of Hayley Allen, head of disclosure team at the MoJ, dated 12 May 2020 and it says:
So that is a witness statement over a statement of truth,
The last thing I want to read from that bundle is a letter dated 17 August 2020 and this is from Mr Sivarayan to the claimant:
The heading is "undertaking contained in the order of 25 February 2014":
Now, that letter and the sort of signature page to it appear on pages 120 and 121 of the bundle, 17 August 2020 that is.
Now, let me just get back to the front. Based on the correspondence from 2014 and 2017 and based on the correspondence and the witness statement from 2020, as I understand it – let me just double check that again, yes – I am satisfied so that I am sure that the claimant knew as long ago as September/October 2014 and throughout this process and certainly long before issuing the proceedings under number E11 that the Ministry had destroyed the material. I accept that he does not choose to believe that, or is unable to believe that but the fact is the Ministry has done what it was required to do. It has told him that repeatedly in correspondence, it has told him that in a witness statement with a statement of truth above it and I am satisfied so that I am sure that he knew about all of this because those bundle reference numbers that I have given are from the claimant's injunction bundle of 11 September 2020. So he put those before Cavanagh J when he tried to prevent me from hearing this case, so there is no way that he did not know that those existed.
So I stand by the judgment that I gave this morning. The sensitive materials form no part of the litigation under E11. The data access issues in E11 were to do with not forwarding timeously requests from the claimant regarding appropriate adjustments for his disability and the position is as Mr Joseph indicated this morning and that is how I will approach this detailed assessment.
I am going to reserve costs and the reason I am going to reserve costs, I think it is the right thing to do. I hope that there may be scope for a commercial resolution of this and if there is, I think costs reserved is going to be the more helpful order but perhaps on a more substantive basis, I think there was no intention, in my view, to mislead but Mr Joseph this morning, we did spend a bit of time talking about whether there was anything in the particulars of claim to do with DPA and we established that there was and then there was obviously a considerably greater amount of time dealing with what that DPA should have been about and I think that the best way forward is to reserve the costs of today and that is what I propose to do.
Note 1 See para 20 of the relevant Judgment [Back]