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

The other principle of law to which Mr de Waal helpfully took me is the often-cited summary of the principles applicable to applications for summary judgment contained in the judgment of Lewison J, as he then was, in Easyair Limited and Opal Telecom Limited [2009] EWHC 339 (Chancery) at [15]. As the Defendants point out in their Skeleton Argument, this has been approved by the Court of Appeal in (among other cases) A C Ward & Sons Ltd v Catlin (Five) Ltd [2010] Lloyd’s Rep IR 301.

Mr de Waal reminded me in particular that: “a realistic claim is one that carries some degree of conviction, this means a claim that is more than merely arguable”; “[i]n reaching its conclusion, the court must not conduct a ‘mini-trial’”; and “[a]lthough a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation of the facts at trial than is possible or permissible on summary judgment”. Those propositions are taken from subparagraphs (ii), (iii) and (vi), respectively, of Lewison J’s summary of principles in [15].

It is clear, as Lewison J said at the beginning of that paragraph, that the court must be careful before giving summary judgment on a claim. The question is whether there is a realistic prospect of success, or whether there is some other compelling reason, not one of probability, and one has to have one’s eye very firmly on that at all times.

The position in the present case is that the letter of 5 October 2018 explaining what was done in response to the data subject access request is very clear and detailed, and no concrete objection to any part of it has been put forward by Mr Dowding or on his behalf at any time; that includes in the course of Mr de Waal’s submissions today.

The letter itself is supported and bolstered by a witness statement, verified by a statement of truth, by Mr Peter Michael Blenkinsopp, who says at the beginning that he is “a qualified privacy professional with a background in law, technology and business” and has “over 35 years' industry experience helping organisations to successfully deliver compliance programmes within heavily regulated environments”. That witness statement is dated 5 June 2024 and is made in support of the Defendants' application for summary judgment. It goes into some considerable detail about what was done in this case, how The Character Group plc processed and responded to the data subject access request (which was apparently the first such request that it received under the GDPR), the nature of the search that was carried out, the “templates” and legal guidance that were considered and so forth. That is covered in some considerable detail over a total of 38 paragraphs and 12 pages, and again I do not propose to rehearse all of that here. Again, Mr de Waal has not been able to point to any aspect of that evidence which is open to criticism or apparent contradiction or inadequacy.

Mr de Waal’s broad proposition is that it is unsafe and wrong to judge, or prejudge, a case on incomplete materials, and that in litigation such as this, which is complex, it may well be that disclosure, witness statements and ultimately the process of cross-examination will produce further relevant materials or shed new light on matters.

The difficulty about that submission, in my judgment, is that it fails to take account of the difference between circumstances where there is some real ground for concern or where there is a realistic prospect that something germane may emerge if the matter is allowed to go to trial, versus those where, as the Vice Chancellor Sir Robert Megarry said many years ago in a case on summary judgment under the old RSC Order 14, the true position is that the stance of the respondent to the application is really nothing more than “Micawberism and the hope that something may turn up”.

The position here, it seems to me, is that there is no realistic prospect that disclosure will shed any further light on these matters, because self-evidently, as Mr Dowding is asking for data held by others, he will have no disclosure to give comprising documents containing his data held by others; and the Defendants’ firm stance is that they have given all the disclosure that there is to give and that they are able to give. They have said that over and again: they have said it in the Tribunal, they have said it in the letter, they have said it in the evidence, and they have said it in front of me. If there were any properly arguable grounds for believing their stance is wrong, and if the issues that I am not invited to strike out were to go to trial, in due course an application for specific disclosure could be made. But no grounds for making any such application have been identified in front of me, which reflects the fact that no such grounds exist.

I see no realistic prospect that disclosure will change anything. Nor witness statements for that matter. There is no realistic basis that I have been shown for supposing that any witness statement will alter or amplify or correct the evidence that I already have, in the form of Mr Blenkinsopp’s witness statement and the contemporary documents.

When it came to the question of what sort of point might be put by way of cross-examination, by way of concrete attack on the Defendants’ documented stance, it appeared to me - and I naturally make no criticism whatsoever of him for this - Mr de Waal was not able to identify anything specific even by way of illustration.

There has been in this case a suggestion of other documents that have not been provided, of which the Tosca email is perhaps the most obvious example. But the case relating to specific documents like the Tosca email has already foundered, and apart from a general point that, “Well, there may be other documents, we do not know”, there is not anything that I am aware of that could be said by way of concrete demonstration or even suggestion of a deficiency of response from the Defendants.

The matter is not made any better, from Mr Dowding’s point of view, by the consideration that the nature of the documents that he seeks - and it is mostly documents that he is pressing for - has changed over time and seems to be under a process of continuous evolution and indeed amplification. His most recent letter of 24 April 2024, I think probably, even on its face, flags up a yet further data subject access request, and has within it under the headings “Personal data contained in specific documents that are believed to exist” and “Personal data believed to be contained in the following classes of documents” a list of 48 categories of documents.

It would be wholly disproportionate to attempt to go over all of those categories in this ruling. But at the very beginning, one sees this:

“Duane Morris time ledger/billing support records and invoices 1.1.16 to 4.9.18 (they were not created for the dominant purpose of providing legal advice or for litigation purposes and are therefore not legally privileged).”

It is patently obvious to me that that is not an appropriate subject for a data subject access request. It relates to documents, but, even more importantly, it relates to the billing records of the solicitors for an opposing party in litigation. I regard it as utterly fanciful to suggest that such documents will contain Mr Dowding’s personal data.