CA-2024-000578 - [2025] EWCA Civ 1117

Almost all of the individual schedules allege that the appellant experienced one or more of these reactions to learning of the data breach. Similar responses are detailed in the exemplar medical reports. A claim to be compensated for annoyance or irritation caused by fear of third party misuse is tenable, provided the fear is well-founded. The CJEU jurisprudence tells us that such complaints cannot be dismissed for falling short of a threshold of seriousness. But many, if not all the annoyance or irritation complained of is said to have stemmed from other causes. For example, claimant 113 pleads that he suffered “considerable annoyance” as well as anger that his ABS had been posted to an address he had not occupied for more than 18 years and “frustration and annoyance” at the delay between the breach and notification. The issue is whether claims of those other kinds can be maintained. I do not consider that they can.

In my judgment, claims to be compensated for reactions of irritation or annoyance at the mere fact of the breach, or at the way in which the respondent notified it, or dealt with it, fall outside the scope of the Master Particulars and are not maintainable in the absence of an amendment to that document. The point is straightforward. The Master Particulars asserted three main heads of damage, as I have explained. Fear of what third parties might do with the appellant’s information was among them. So was exacerbation of a medical condition. Irritation or annoyance of the kinds I have mentioned was not. The respondent sought and obtained an order for further information about the claims asserted in the Master Particulars. The purpose was to gather details about the individual claims. It was not, as I see it, to afford the appellants an opportunity to expand the scope of the overarching case. If that is correct then arguably, no properly pleaded claim for harm of these kinds is before the court nearly six years after the data breach complained of. Nor is there a draft amendment to that effect. The draft Amended Master Particulars do not seek to advance a claim for irritation or annoyance at the way the respondent behaved.

I would add that it seems to me there may be room for the view that fleeting or transient subjective reactions of this nature do not qualify as “non-material damage”. It is unnecessary to develop this point in any detail. I refer however to paragraphs [111]-[116] of and footnotes 64, 73, 76 to the Advocate-General’s Opinion in UI andparagraphs [79]-[83] of and footnotes 22, 26 and 27 to the Opinion in VB, and the cases there cited. These can be read as advancing not only the “threshold of seriousness” argument which the Court rejected but also a contention that some forms of emotional harm do not count as “damage” at all. As I read the CJEU decisions the Court has not rejected that latter analysis. It has held that a claimant who asserts and proves harm that does fall within the concept of “non-material damage” does not need to go further, and show that the damage reaches a certain level of gravity, before compensation may be awarded.