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

It is convenient to begin with Mr Sharland’s invitation to reject the factual allegations pleaded by the appellants as simply incredible and to enter summary judgment for the respondent on that basis.

Referring to well-known passages in Three Rivers DC v Bank of England (No 3) [2001] UKHL 16, [2003] 2 AC [95] and E D & F Man Liquid Products v Patel [2003] EWCA Civ 472 [10] Mr Sharland submitted that we could “say with confidence ... that the factual basis for the claim is fanciful” and that it was “clear that there is no real substance” in the appellants’ factual assertions. Mr Sharland pointed to the distinction between statements of primary fact on the one hand and, on the other, inferences, assertions of law and matters of comment, which the court is not bound to accept as correct (Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG [2007] EWCA Civ 1066, [2007] 2 CLC 748 [11]). Developing the headline submission I have quoted at [26] above, Mr Sharland argued that it was “simply unreal” to suggest that any of the appellants had a genuine belief that their data had gone to someone unknown let alone that it had been misused, and that the “levels of distress referred to [are] entirely improbable”. He submitted, further, that the individual schedules contained clear indications of the unreal and artificial nature of the claims and “cast serious doubt” on their authenticity and credibility. He pointed to the use of certain “stock phrases” which appeared to have been “cut and pasted” into multiple individual schedules.

There certainly is a considerable degree of overlap in the language used to plead the claimant-specific schedules. An Annex to the respondent’s skeleton argument identifies more than 15 distinctive phrases that appear and reappear verbatim on multiple occasions. By way of example, some 85 claimants allege that they were “conscious that this information could be used to fraudulently apply for documentation, such as some forms of identification”. Some 82 say they were “baffled and frustrated” by the mis-addressing of their ABS. Some 53 cite concerns about what might be done by persons with “malevolent intent”. Forty seven complain that “the defendant has sought to trivialise the breach”.

In the end, though, this aspect of the respondent’s argument is unconvincing. It is true that the court is not bound to accept as credible everything said by the respondent to a summary judgment application. The court may conclude that the respondent has no real prospect of establishing its factual case at trial. The paradigm case in which it may do so is where the respondent’s evidence is contradicted by a contemporaneous document the authenticity is not in doubt. This is not such a case. Nor is there anything comparable. The key allegations are not matters of inference or legal argument but matters of primary fact. The appellants have asserted that upon learning of the data breach they experienced certain emotional (and in some instances physical or psychological) responses. These are facts the truth or falsity of which is within the appellants’ own knowledge.

The point about repetition is not strong enough to justify summary judgment. The “stock phrases” are not contained in witness statements, which must be in the witness’s own words or at least their own language (PD32 para 18.1). They are in statements of case served pursuant to Part 18. The natural inference is that they were drafted by the appellants’ legal team, as Mr Campbell submitted was the position. In that context the sheer scale of the exercise makes repetition understandable. The words used in the schedules may not be those which the appellants would have used but that is not a breach of the rules or practice directions. And they have verified what is said as a matter of substance. It would be a strong thing for the court to reject the statements of truth without hearing from the individual concerned. I do not consider we would be justified in taking that step.