Biting back with a vengeance

GrannyKate

@canuk_UK Thanks for your very comprehensive and in depth assessment of the Farley case. I had only really looked at it superficially as a case of interest. It is a hurdle to establish a standard of what consequences of a data breach need to look like to qualify for compensation. I agree that GDPR claims are unlikely to produce anything but very modest damages except in exceptional cases and then the case will turn on its individual facts and it is not likely to add to case law applicable to all proven breaches.

GettingOnInYears

https://forums.moneysavingexpert.com/discussion/comment/82032620#Comment_82032620

Note-taking is perfectly legal. No actual recording of speech was taken. All that MS programme does is to transcribe speech as it happens, which in the case of a video conference by internet on a computer is entirely justified. Even at the actual hearing in court the judge reminded us of the need to take notes if we felt it necessary.

GettingOnInYears

https://forums.moneysavingexpert.com/discussion/comment/82032903#Comment_82032903

You know - I'm the sort of guy who likes to kick !!!!!! when I feel compromised or otherwise taken advantage of.

It's probably already apparent that my tenaciousness comes as a result of having to make the best possible effort to achieve the goals I target.

I know it's some time back but when Direct Digital - the company behind the hospital tv screen advertising - played my wife for a fool by having her take a 2 year contract for £12k by telling her a load of old tosh, the rep claiming he was the financial director etc and taking a deposit of over £2k, I went at that full throttle. I found dozens of other people who had been scammed and even set up a website debunking their operation.

After a 2 year period of enormous research which spread across to Australia where the same company was fined $200,000 AUS for the same tactics, I was eventually taken to court as the company secretary. I came out from that hearing with an award of £3506.24 - thereabouts. So am I going to drop out of this now? Like hell. I know from all of the case law, excluding Farley as it doesn't apply, that I have all of the evidence to support an appeal.

The circumstances in Farley are significantly different to my own and can't really be used in the same context. That case was the assessment of risk.

My own is the assessment of damages/distress and the judge has simply got it wrong. She worked on the basis that only damage/distress caused by the breach was compensable. Consequential distress as a result of the breach should have been brought in which includes everything between the breach and the court hearing.

She had already confirmed with the defendant's solicitor that in this case the eggshell skull principle was properly invoked, then went on to ignore it. The basis of her lack of consideration of the many factors that were brought about as a consequence of the breach such as in the prelitigation period, were totally ignored. Wrongly. There's sufficient evidence in case law that support damage/distress as a consequence of the breach are truly compensable. These include all of the pre-claim conduct by the defendants such as lies about them being compliant to the BPA Code of Practice on numerous occasions - suggestive of myself lying in appeals. Then the combative dismissal of my emails or non responsive questioning. All of that in a period of my life when I was already under significant financial and emotional distress. My many emails include mentions of the stress, financial circumstances and distress I was suffering in the pre claim period. None of these were considered even when the judge agreed in principle on the eggshell skull proviso.

As for supportive case law - The judge applied an incorrect causation test, requiring the breach to be the sole cause of distress, contrary to Section 169(1)(a) DPA 2018 and the authorities in Vidal-Hall, TLT, Gulati, Johnson and Driver v CPS.

I could add lots more examples of wrong assessment or misjudged legal points but they'll all come out when I post the appeal.

The chance of having costs awarded against me aren't a consideration at this point - nor were they in any event. The hearing and results have completed and the appeal is likely going to be a correction by the judge who takes the case, rather than the other option of sending it back to the initial court for reassessment. I hate to say it but from my notes, when the judge said that "unfortunately for the claimant, although I have found that there was breach, I have found that he hasn't proved distress suffered as a result of that breach and therefore unfortunately his claim fails." she said so in a really empathetic way as if she would have like an award to be made. However that very phrase is indicative of the wrong means of assessing damage/distress which does rightly include consequences of the breach.

The very wording is also contradictive. She found that there was a breach but my claim failed? I mean - come on - she contradicts her own finding. This could be construed as a total finding of an overall failure. She ought to have said that she found no compensable damages or distress were occasioned and simply that £0 was the award - not that I agree with her reasoning. You cannot be told that a breach had occurred but the claim failed.

In the meantime, naturally, I will be doing more to place my appeal in the best possible manner.

Thanks to everyone for the support and I really am looking forward to a victory.

ChirpyChicken

If you time to waste and money to spend go for it

I think your getting yourself in to a dead end

Coupon-mad

I dunno...

I back Lynnzer to see this through and if he achieves it - even with a modest award on appeal, overturning the first instance judgment - it will help him and others.

ChirpyChicken

https://forums.moneysavingexpert.com/discussion/comment/82033222#Comment_82033222

This is of course fair comment

cooldude255220

This area of law is very much out of my wheelhouse, so I'm very reluctant to stick my nose in! That said, this stuck out to me:

The very wording is also contradictive. She found that there was a breach but my claim failed? I mean - come on - she contradicts her own finding. This could be construed as a total finding of an overall failure. She ought to have said that she found no compensable damages or distress were occasioned and simply that £0 was the award - not that I agree with her reasoning. You cannot be told that a breach had occurred but the claim failed.

I don't know if it's comparable, but take, for example, clinical negligence. In order to succeed, you need to prove that there was a duty of care, that there was a breach of that duty, and that that breach caused some harm.

Ergo, you can absolutely have a finding that there was a breach, but if that breach didn't cause any harm, the claim would fail.

On the face of it, that seems to mirror her reasoning.

So, like I said, I'm by no means an expert in this area of law. But in other areas of law, you can absolutely have a finding that there was a breach, with the overall claim nonetheless failing.

GettingOnInYears

https://forums.moneysavingexpert.com/discussion/comment/82033222#Comment_82033222

I won't go down in history. I ain't a Beavis, and whatever the outcome the case won't set anything other than a mere pesuasive precedent if it's even known about in the community at large.

However, failure to award some sort of compensation for damages or whatever, will simply mean that these sort of companies can go on operating with impunity. With a net profit of over £4m in the last published accounts, they can afford even a substantial damages award so they won't be at all concerned enough to change course.

The average person getting a ticket, appealing on a point of non compliance to the BPA Code of Practice and winning it at POPLA - as such an appeal is never agreed by the parking company - should have the right to compensation. I guess most folk either take a risk and don't pay the PCN or pay before the end of the low cost period. However, I'm not the average person.

Even in the days of the Parking Prankster and Pepipoo I became something of a target by ParkingEye. It's nice to know I'm appreciated

GrannyKate

I agree with others that you must do what seems right to you. I don't think any of us can be sure of the outcome but thirty years working in data protection law also tells me 'you can absolutely have a finding that there was a breach, with the overall claim nonetheless failing'. My work took me into clinical negligence as well and it is sadly true that families can go through absolute hell but at the end of the day the claim will fail to establish direct causation.

I am not saying this is right in laymen's terms but is it how the courts find based on the wording of statutes etc.

GettingOnInYears

Lots of hours spent researching again and here is my Skelton argument for the appeal when it gets approved. Appeal Skeleton Argument