KB-2023-003510 - [2025] EWHC 1755 (KB)

That is my ruling on the issue of the pleaded case against Mr Shah.

The next matter that I have to deal with is the Defendants’ application for summary judgment pursuant to CPR 24.2 concerning those parts of the Particulars of Claim which relate to the Claimant's data subject access requests. The relevant paragraphs are said by the Defendants’ Skeleton Argument to comprise paragraphs 193 to 204.

In fact, paragraphs 196, 197 and 198 have already been struck out because they relate to allegations of altered documents which are contrary to the findings of the Employment Tribunal, and which I have also considered and appear to me to be without foundation. So those particular paragraphs do not fall for determination on this summary judgment application in any event.

Paragraph 193 of the Particular of Claims refers to the Claimant’s data subject access request dated 4 September 2018. That relates to a letter which sets out a request for data relating to 17 classes of documents (15 of which are listed on the first page of the letter and the remaining 2 of which are listed on the second page of the letter).

Paragraph 194 just says that that request is referred to, somewhat mysteriously as it was made in September 2018, as the “October 2018 DSAR”.

Paragraph 195 deals with the response to that request, which is contained in a letter from the Claimant’s employer, The Character Group plc, dated 5 October 2018, which is signed by S. Tull. That letter first rehearses the fact that what has been requested is data processed in relation to the 17 topics identified in Mr Dowding’s data subject access request. It then explains what has been done by way of searches, and it explains what emails have been searched, what search terms have been used, and that group human resource files have also been searched. Enclosed with the letter were documents amounting to some 200-odd pages in total, I was told by Mr Helme.

Obviously, a data subject access request is a request for data rather than documents, but very often the data controller finds it convenient to respond to the request by providing documents containing the data in question, rather than seeking to fillet the data out or describing what personal data is being processed without copying the documents.

The letter then describes the classes of personal data that are held in respect of Mr Dowding, starting with payroll information and ending with tax codes. I will not read out all of the 10 different classes that are set out there, but they include address, date of birth, telephone numbers, bank details and so forth.

The letter goes on to confirm that the employer company does not make use of automatic decision-making, including profiling, and set outs a descriptions of other ways in which the data controller - that is the employer company - processes data.

The letter explains that not all personal data has been given to Mr Dowding in response to his request, and what has not been provided are records of the company’s intentions in respect of negotiations with him and matters that are subject to legal privilege. It further states that information that has already been provided as part of pleadings, correspondence, witness statements and disclosure, has not been provided again.

Finally, it explains that the company has done its best to respond to the Claimant’s request and asks whether, if there is any dissatisfaction with the response, “please let us know so we can address any concerns”. In fact, the Claimant made no response to that letter, and voiced no complaint, until 23 November 2020, more than two years later, and after the Employment Tribunal circulated its judgment on 12 November 2020.

Going back to the pleaded case, paragraph 199 says that by late 2020, it was clear that the documents sent in compliance with the data subject access request were inadequate, and paragraph 200 pleads that a supplementary request was made, as I have already mentioned, on 23 November 2020.

That supplementary request starts off with a complaint about known missing documents and then goes on to a complaint about missing documents that are now believed to exist, the total number of classes running to 31 classes in all. Plainly, a fundamental deficiency in that approach is the premise that the data subject, in this case Mr Dowding, is entitled to production of documents as opposed to data.

As I will consider in a moment, the Defendants’ case is in fact that all relevant documents have been disclosed that relate to the Employment Tribunal proceedings and the issues that led up to those proceedings, including concerns about Mr Dowding’s conduct, questions of whether he should be subjected to a disciplinary process and later whether his employment should be terminated, and resolutions by the board approving any decision to terminate and so forth. The Defendants’ case is that disclosure was given of all of those documents, whether containing his data or not.

The pleading goes on at paragraph 201 to say that Mr Tull did not a respond to the supplementary request, that the personal data specifically requested has not been provided, in further violation of Mr Dowding’s rights, and at paragraph 202 that a response was received from Mr Shah, containing it is said threatening words.

Paragraph 203 pleads that the supplementary request provided “succinct details” of why the October 2018 response was inadequate and of what was still required. Then paragraph 204 lists, it is said, 16 categories of data that are still to be provided. These include, for example, “personal data/information processed and/or accessed and/or received” relating to “the Claimant’s conduct/alleged conduct” and “the Claimant’s performance/alleged performance” (sub-paragraphs (iii) and (iv) respectively) and “personal data/information relating to all meetings and/or other consultations with Duane Morris (i.e. the solicitors for the employer company) concerning the Claimant’s terms, conduct, performance and/or settlement offers” (sub-paragraph (xiv)).

It is quite clear from the scope of the data that is requested that it all relates to Mr Dowding’s period of employment, and particularly to the disciplinary process to which he was subjected and the decision to terminate his employment.

One question that certainly presents itself to me, apart from the Defendants’ case (which is clear that the subject access request has been fully complied with, and that no further material documents remain to be produced, and that reiterations of the request are basically indicative of a misguided and abusive approach), relates to the fact that the real purpose of obtaining any further data, if indeed it existed, would all be, it seems to me, to rehash the history of the disciplinary and termination of employment process. One asks rhetorically what benefit that could possibly have for Mr Dowding.

Mr de Waal, who has appeared in front of me today on behalf of Mr Dowding, and for whose submissions and assistance I am most grateful, submits that is not really a relevant consideration. However, as I shall return to in a moment, I consider that it is.