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

It may be helpful to recapitulate at this stage. The CJEU decisions make clear that in principle a data subject whose rights have been infringed may claim compensation for “non-material damage” consisting of a fear that the infringement might have harmful consequences. The appellants’ pleaded case on that score cannot be dismissed as incredible, out of scope, or below a threshold of seriousness. But it remains to consider whether the pleaded fears can be characterised as “well-founded” as opposed to being based on a “purely hypothetical risk” or similar, within the meaning of those terms as used by the CJEU.

I take the language used by the Court in VB and BL to import an objective standard or test of reasonableness. It is not necessary to decide whether a similar approach would be adopted if this were a claim in some other, purely domestic tort.

Mr Sharland invited us to hold that, taking the appellants’ pleaded case at its highest, all of the claims based on fear of the unknown fail the test identified in BL. The essence of this submission is that we should uphold the judge’s order and dismiss the appeal on the grounds that although each of the appellants has a tenable case of infringement none has pleaded a reasonable basis for claiming compensation for fear of what might happen. Mr Sharland submitted that “the fears and concerns referred to ... are entirely irrational”. Mr Sharland offered to take us through each schedule but pointed to some illustrative examples and some salient common features of the factual position in each case. He argued that many of the claimants came to know for certain that their ABS had never been opened and read, and that none of them ever had any good reason to fear that this would happen or that it might have happened. On this latter point Mr Sharland relied on the reasons given by Nicklin J for concluding that no inference of disclosure could be drawn. He argued that it followed that the appellants’ fears could not be well-founded. Further, submitted Mr Sharland, none of the appellants had any good reason to fear that if the envelope was opened its contents would be misused in any of the ways suggested. The information was not sensitive data and was limited in scope.

I am not able to accept these submissions. The fact that these appellants cannot prove that their ABS were opened and read does not of itself show that the fears they entertained were not well-founded. The test of reasonableness cannot depend on hindsight. It must be applied with reference to the facts and matters that were or should have been known to the appellant at the time they experienced the stated fear. That is implicit in paragraph [85] of VB and clearly correct in principle. It is obvious that a person can hold well-founded fears about future harm even if no such harm in fact results. If an illustration were needed, the facts of George v Cannell [2024] UKSC 19, [2024] 3 WLR 153 provide one.

That said, none of these claims can succeed unless the individual appellant pleads and ultimately proves a reasonable basis for fearing (1) that their ABS had been or would be opened and read by one or more third parties and (2) that this would result in identity theft or one or the other consequences which that appellant feared might follow. And in assessing whether such a basis has been identified, aspects of the judge’s reasoning are pertinent.

At [149]-[152] the judge contrasted the drawing of inferences with “speculative guesswork”. He observed that:

“absent some facts that would compel a different conclusion the court will not draw the inference that a letter addressed to a named recipient, clearly marked ‘private and confidential’ will be opened by a third party who is not the named recipient or authorised by him to open correspondence addressed to [the] named recipient.”

The judge held that the evidence did not support any such inference but tended if anything to support an inference that “private correspondence is not generally opened by someone who is not the addressee”. In only 14 of the 450 cases was there evidence that the ABS had been opened and in only 2 of those cases was there evidence that it was opened by someone other than a family member or colleague: ibid. That, it seems to me, is exactly as one would anticipate. Anyone receiving one of these envelopes would see at a glance that it was a private communication, of an expressly confidential nature, which had been sent to the right person but the wrong address. The overwhelming majority of people do not open such correspondence but return it (as happened in more than 100 cases here) or keep it, or throw it away. Looking at the matter generally, the chances of such a letter being opened are remote.

So too, in my judgment, are the chances of the information in an ABS being misused if, exceptionally, the envelope was opened and the document was read. The reader would immediately appreciate that the document contained personal financial information. They would be able to infer that the addressee was a police officer. But speaking generally, the chances of a police officer’s former home being occupied by a criminal or other “malevolent actor” are slight. In this context, it is relevant to note that of the 750 persons affected only 37 took up the offer of free fraud insurance and that nearly six years after the event no evidence has emerged of any actual misuse. Other contextual factors that require consideration when addressing the reasonableness of the appellants’ fears include the respondent’s assessment of the level of risk, that of the ICO, and what the appellants were told about those assessments.

The generic factual allegations in the Master Particulars (and the draft Amended Master Particulars) cannot provide the necessary objective foundation for the fears alleged. All that is alleged there is the fact of infringement, the fact of the fears, and an allegation of causation. Nor can the mere fact that an appellant came to know that their ABS had been sent to the wrong address be enough to found a well-founded fear that it would be opened and read. In my judgment, individual schedules can only be sufficient if they state a specific and reasonable basis for fearing that in the particular case of the appellant in question the envelope would be opened by someone and its contents read. If that much is pleaded, an individual schedule will still fall short unless it also sets out particular circumstances amounting to a reasonable basis for fearing that the information in the ABS might be misused in one of the ways set out in the draft Amended Master Particulars.

Accordingly, the question raised by this aspect of the respondent’s case is whether any of the appellants have set out a reasonable basis for a claim to compensation which might succeed at trial in the light of the principles I have identified above (and in particular at [75], [78] and [81]). Having reviewed a sample of the individual schedules I am confident that a decisive answer to that question can be produced in each case. An answer could, for instance, be given in respect of the first claimant and claimant no 45, whose claims I have outlined above, by scrutiny of their individual schedules. I see no reason in principle why such determinations should not be made at this stage. The appellants have had a sufficient opportunity to state their case and to provide supporting evidence.

The exercise could be carried out by this court. I would however decline the respondent’s application for that to be done. It is not possible to do it fairly without a proper examination of each individual schedule. The number of claims here means that the scale of the exercise proposed is considerable. We have been provided with four files of individual schedules, running to some 2,696 pages. This is not a court of first instance. Generally, our function is to review or, exceptionally, re-hear issues that have already been decided at first instance. Here, we are being asked to uphold the judge’s order for different reasons. That is legitimate. However, for each member of this court to review all of these schedules would represent an inappropriate allocation of judicial resources.

I would therefore remit the respondent’s application on this point to the High Court. A judge can then determine whether the task of answering the question I have identified should be allocated to a Judge, a Master, or even the County Court, and give any appropriate case management directions.