Neutral Citation Number: [2008] EWCA Civ 874

Case No: A2/2008/0029
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CARDIFF DISTRICT REGISTRY 
(HIS HONOUR JUDGE HICKINBOTTOM)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24th June 2008

Before:

LORD JUSTICE WARD
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Between:

	EZSIAS	Appellant
	
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WELSH MINISTERS	
Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

(As Approved by the Court)

Crown Copyright©
Lord Justice Ward.:

1.	This is a renewed application for permission to appeal orders made by HHJ Hickinbottom, sitting as an additional judge of the High Court in the Cardiff District Registry on 18 December 2007, when he made a limited declaration that there were certain breaches on the defendant’s part of their obligations under the Data Protection Act 1998 in that they did not disclose all disclosable personal data to the claimant within the statutory 40-day time limit, but otherwise his claim for a declaration of their failure to disclose all relevant personal data was dismissed.  He ordered that the claimant pay the defendant’s costs on an indemnity basis after 29 June 2007.  

2.	The application for permission to appeal was refused on paper by Buxton LJ, who gave eleven reasons for that decision, and I am bound to confess that on first reading the papers there seemed to me to be considerable force in my Lord’s reasoning.  Buxton LJ directed that if the matter was to be renewed it must be on notice to the respondent.  That notice was duly given but the respondent has elected not to attend this afternoon even though I had given directions that they should be given time to reply to the submissions of the applicant.  Ordinarily, as one knows, permission applications are supposed to take twenty minutes.  I was prepared to allow more than that.  I was helped in addition by a skeleton argument, which was dated 15 June and which set out how the applicant wished to pursue this case.  He has followed my exhortation to be brief and although I have listened to him now for an hour, he had much longer than I envisaged but then, as he has kindly recognised, I am a very benevolent judge indeed.  

3.	He makes these points: firstly, he submits that this judgment has not met with the universal approval of those who are practiced in the arcane mysteries of the Data Protection Act, and he has drawn attention to comment on this judgment in which it has been suggested that the limited definition given to personal data is too narrow.  The result is, so I am told, that the definition has been criticised by the Data Protection Working Party in Europe, which has resulted in a substantial revision of the UK Information Commissioner’s own guidance on this issue, such that data controllers are urged to continue to follow the Commissioner’s revised guidance, rather than rely on this decision in relation to their own disclosure practices until the issue has been clarified: see page 160 of Bundle 3 received on 19 June.

4.	In a comment by Messrs Bird and Bird, the firm which, as I understand it from my limited dealing with this Act, is one of the firms specialising in this area.  In their comment on the Act, they suggest that the judge’s conclusion that the data controller was only obliged to carry out reasonable and proportionate steps to identify and disclose personal data may be controversial.  It may be, so the argument runs, that the case of Durant v the Financial Services Authority [2003] EWCA Civ 1746 does not go so far as to state that there is a general exemption from subject access where searching would involve the data controller in disproportionate effort: see pages 161 and 162 of this bundle.  

5.	There is a further point that also seems to me to be of some possible importance and that is this:  that the Act was passed in order to comply with Directive 95/46/EC.  Article 1 of the Directive defines personal data as any, and the applicant emphasises any, information relating to an identified or identifiable natural person.  

6.	The submission is that the definition in section 1(1) of the Act is narrower than the definition in the Directive and that the Act may therefore have to be read in such a way as to construe it in a manner consistent with the Directive in accordance with well-known approaches to the construction of statute where implementing a directive.

7.	So the applicant stresses that in section 1(1) data is defined to include any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual.  His submission is that not enough weight has been given to the words “or any other person”, there being references to other persons than the data controller.  He submits that the Act in section 8(2) requires disclosure of copy of the information and, had that been done, he submits, then an e-mail appearing at page 154 would have been disclosed, whereas in fact the judge only allowed a summary of that e-mail to be disclosed.  The difference between them is that the actual e-mail reveals that a call had been received, “possibly from one of Dr Ezsias’ colleagues”, and that information is withheld in the summary disclosure.  It is, he submits, an attempt to conceal the identity of the source of the informant, to which he is entitled under section 7(1)(c) of the Act, namely his entitlement to have communicated to him in an intelligible form any information available to the data controller as to the source of those data.  He also complains that, as an example of a document which was never disclosed to the court or listed, there is a document which has come into his possession as a result of the proceedings in the employment tribunal, namely an attendance note of a meeting on 30 June 2003 attended by the Chief Medical Officer, Ruth Hall, Ann Lloyd, the Director of the National Health Service in Wales and Alastair Scotland, the Chief Executive of the National Clinical Assessment Authority.  That appears at page 155 to 158 of my bundle and that document reveals the view of Mr Scotland that it is “inappropriate to treat Dr 109 [that is to say this applicant] as they have”.  So there was an expression of opinion about the individual, which ought to have been disclosed.

8.	The short point about these two specific documents -- the e‑mail and the attendance note -- is that if the judge got this wrong, in the latter case through no fault of his own because the document was not shown to him, then who knows how many other documents have been withheld or misconstrued?  The point is given added force because in a document which was signed by the Data Protection Officer himself (page 109) it is stated that the most likely place to look for documents would be in the office of the Chief Medical Officer, and yet I am told that in the affidavit served by the respondent to confirm to the court’s satisfaction that everything had been disclosed, the deponent of that affidavit admits that they did not consider looking in the Chief Medical Officer’s office for relevant documents and that again, it is suggested, shows the factual difficulties that he labours under and which support his claim that this case needs to be looked at again.  

9.	He has complained about sundry procedural irregularities.  In the Grounds of Appeal, they are set out on page 2 of that document, dated 31 December.  The complaints relate to the judge disregarding outstanding appeals.  There is nothing in that because the Court of Appeal dismissed those applications for permission.  They complain of the judge’s failure to recuse himself and to conduct this case, even though, originally, HHJ Wyn Williams had directed that it be heard by a High Court judge.

10.	I see no reasonable prospect of appealing any of those grounds for these reasons, broadly: the case changed shape from the time that HHJ Wyn Williams gave his judgment, shown on page 81 of the bundle.  As the case was reshaped by the different case conferences, the need for a High Court judge to do it seemed to me to evaporate, and it seems perfectly within the power of the deputy judges dealing with the case managements to take control of the litigation as it had become reshaped.  There is an argument that this judge was biased or apparently biased against the applicant; it is said partly because he expressed himself at an earlier case conference in robust terms as to his views on the prospect of success.  Judges sometimes do that.  It does not indicate a closed mind and HHJ Hickinbottom dealt perfectly adequately with that complaint in the judgment under appeal.  There is nothing in that complaint.  

11.	There is more force in the complaint about bundles.  What happened here is that the judge gave direction for bundles.  The applicant protested that a bundle was being put before him and that he had had no input into it at all.  The judge then heard the matter but after the hearing wrote to the parties -- see page 103 -- in which he observed that upon consideration of the material placed before him the bundle was indeed inadequate, as the applicant had protested it was.  Therefore he directed the parties to liaise for the defendant to produce an agreed bundle, incorporating all of the documents by a certain date.  But there was no agreement between the parties as to that bundle and the applicant complains that he in fact never saw the substituted bundle placed before the judge.  

12.	He has no idea to this day precisely what went into it.  If that is so, that could amount to some irregularity and some denial of his right to a fair hearing.  So he has permission to argue that point but none of the other procedural irregularities upon which he depends.  He has my permission to argue his challenges that the judgment is wrong in law, and I refer again to the Grounds of Appeal of 31 December.  I refused permission on grounds 2 (a), (b) and (c) but I will grant permission on (d) to (k) even though they are wide, and even though they are wider than the limited challenges that the applicant has made on the law, and on the facts which I have attempted to summarise in this short judgment at a late stage now in the afternoon.  

13.	Those matters, especially in the light of the critical comment of the judgment by those who work in this field, are points that merit reconsideration.  I hold no guarantee of their success because this court in Durant already expressed itself on the law and it may be that the applicant will have a great deal of difficulty in establishing that Durant can be affected.  But insofar as the point about Directive may give a good ground for reconsideration, and insofar as there are question marks over the judge’s limitations on the proportionality of the search exercise, they seem to be matters which can go forward and I will allow that to be done without limitation to grounds 2 (d) to (k).

14.	If this puts the respondent to a great deal of trouble, then I have absolutely no sympathy for them at all.  They were directed to attend this hearing.  They chose not to do so.  They have not attended to give me the help that I expected to receive from them.  I have had no explanation for their failure to attend.  My clerk had to phone to find out why they were not here.  I regard their actions as discourteous and if therefore they have been put to trouble they have only themselves to blame.  Consequently permission is granted to appeal on grounds 2 (d) to (k).  Permission is refused to appeal on any other ground.  The matter will be listed before a court of three.  It can, I suppose, include a High Court judge.  It will have to be confined to one day, and that will require the same careful pruning of his argument to be undertaken for the full court as Mr Ezsias has managed this afternoon.  If he concentrates on his best points he will find the court more sympathetic than listening to a large number of bad points.  

15.	So you have your permission.

Order: Application granted

I add this postscript.  I have been told this afternoon that the proceedings in the Employment Tribunal were heard over 39 long, agonising and, doubtless, horrible days.  Judgment is reserved.  The purpose which lay behind the application for these documents always has been, as I understand it, to give the applicant documents which may have some bearing, throw some light on the behaviour of those who were responsible for dismissing him and which go to the heart of the Employment Appeal hearing, where, he says, he has been discriminated against as a whistleblower.  If that hearing has been concluded, unless these documents produce some smoking gun, this whole appeal may be a complete waste of time and money for the parties concerned, fascinating though it will be to clarify the correct ambit of the Act.  In those circumstances, where what truly may now be the important question, namely the order for costs and the implementation, the execution of that order for costs, it seems to me daft for these parties to embark upon this appeal without having thought of undertaking some process of mediation.

The applicant tells me he has been endeavouring to persuade the Welsh Ministers to engage in some discussion with him but without effect, and therefore I add my exhortation that mediation should be undertaken because it could produce the answer of practical importance to these parties.  It will save the Court of Appeal a great deal of work, and so I encourage it heartily and I add the usual direction to an order of this kind that the order note that mediation is urged upon these parties, who may use the court office to facilitate that mediation if they so desire, to take up the court’s facility for bringing about a successful mediation with a qualified mediator to conduct it.  So I very much hope that, before the expense of an appeal is incurred, that the parties do consider what is now truly at stake between them.  

Postscript to Judgment 

I add this postscript. I have been told this afternoon that the proceedings in the Employment Tribunal were heard over 39 long, agonising and, doubtless, horrible days. Judgment is reserved. The purpose which lay behind the application for these documents always has been, as I understand it, to give the applicant documents which may have some bearing, throw some light on the behaviour of those who were responsible for dismissing him and which go to the heart of the Employment Appeal hearing, where, he says, he has been discriminated against as a whistleblower. If that hearing has been concluded, unless these documents produce some smoking gun, this whole appeal may be a complete waste of time and money for the parties concerned, fascinating though it will be to clarify the correct ambit of the Act. In those circumstances, where what truly may now be the important question, namely the order for costs and the implementation, the execution of that order for costs, it seems to me daft for these parties to embark upon this appeal without having thought of undertaking some process of mediation. 
The applicant tells me he has been endeavouring to persuade the Welsh Ministers to engage in some discussion with him but without effect, and therefore I add my exhortation that mediation should be undertaken because it could produce the answer of practical importance to these parties. It will save the Court of Appeal a great deal of work, and so I encourage it heartily and I add the usual direction to an order of this kind that the order note that mediation is urged upon these parties, who may use the court office to facilitate that mediation if they so desire, to take up the court's facility for bringing about a successful mediation with a qualified mediator to conduct it. So I very much hope that, before the expense of an appeal is incurred, that the parties do consider what is now truly at stake between them