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

The list of factors set out in Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd & Ors [2017] EWCA Civ. 121 (“Ittihadieh”) which are to be taken into account when the Court is striking a balance between the prima facie right of the data subject to have access to his personal data on the one hand, and the interests of the data controller on the other (see [108]) include the following (see [110]): “the absence of a legitimate reason (i.e. for making the subject access request) has a bearing on the exercise of the court’s discretion … even though a collateral purpose of assisting in litigation is not an absolute bar” and “[i]f the personal data are of no real value to the data subject, that too may be a good reason for refusing to exercise the discretion in his favour”. Leaving entirely to one side the consideration that this list of factors does not purport to be comprehensive, to my mind these adumbrated factors are plainly potentially in point.

Put in the way that I have expressed the question, it does appear to me that this is really a process that relates to going over ground that has already been very well trodden and dealt with by the Employment Tribunal and, further or alternatively, to attempts to relitigate, which in these proceedings have foundered because the relevant paragraphs in the Particulars of Claim have been struck out under orders that I have already made.

The availability of the data subject access request procedure has been there all along. It was open to Mr Dowding to invoke it before the Tribunal hearing in September 2020, and he did so. To the extent that he did not do so, or is seeking to enlarge his subject access requests by reiterations at a later date, it all appears to me to be in reality an attempt to try and find some basis for collateral challenge to the Tribunal's findings.

While his Counsel says it is a matter for Mr Dowding entirely, if he has a right of access to data, whether he wants to see the data and for what purpose he wants to use the data, I cannot help thinking that the fact that, in practical terms, it would be futile for him to get this further data (if any exists) is a powerful indicator as to the correct destination for the Defendants’ summary judgment application. But I do not base my decision on that but on the more detailed grounds that I am about to come on to.

So far as the law is concerned, this has been clearly and helpfully set out in paragraphs 75 to 89 of the Defendants’ Skeleton Argument and I do not propose to rehearse those legal principles in this ruling. Those paragraphs of that Skeleton Argument can be appended to the ruling and anybody who is interested can see what is the nature of the legal landscape that has been presented to me, and which I accept.

Mr de Waal has helpfully confirmed that he has no criticism of any aspect of that legal analysis, although he made two submissions on the law.