KB 2023 004108 - [2025] EWHC 1824 (KB)

A few months before the trials were due to commence, the defendant (acting on behalf of the insurers) served a witness statement (dated 18 June 2021) from its director and head of organised fraud, Mr James Stevens, relating to the Ersan claims; this being done by service of the statement on Ersan, as solicitors for the claimants. The statement was intended to be relied upon in support of the contention made by the insurers in the Ersan claims that the court should make findings of fundamental dishonesty. Mr Stevens explained that, on the instructions of 18 of the defendant’s insurer clients, he had undertaken a review of data relating to claims that had been issued or threatened against those clients by 372 individuals represented by Ersan in respect of road traffic accidents occurring between 22 February 2016 and 1 March 2021. The fruits of that analysis were set out within Mr Stevens’ statement and the exhibits thereto (referred to in the present proceedings as “JS1”).

Mr Stevens explained the composition of the analysed claims as follows:

“8.

At the time of drafting this statement 228 Claimants have litigated their claims and 144 remain pre litigation.

9.

Of the total 372 Claimants DWF Law LLP have received 345 Claims Notification Forms (CNFs). Of those CNF’s [sic] 340 were submitted by Ersan & Co Solicitors and 5 CNF’s [sic] were submitted by solicitors previously instructed by the Claimants.

10.

Of the remaining 27 Claimant we are aware that they are represented by Ersan & Co Solicitors as we have either copies of the medical and/or psychological reports produced for them under the instruction of Ersan & Co Solicitors or we have copies of Court documents.”

Summarising his conclusions from reviewing the 340 Ersan CNFs, Mr Stevens observed:

“67.

Of the 340 CNF’s [sic] in this review 96% contain an allegation that the Claimant sustained psychological injuries.

68.

Of the 336 First Tier medical reports 67% of Claimants are recommended for further psychological examination by the First Tier Expert.

69.

Of the 336 First Tier medical reports 68% of Claimants served a psychological or psychiatric report.

70.

In 100% of reports by Dr YAHLI he diagnoses a recognised psychiatric condition.

71.

Of those reports 76% of the 209 reports available of Dr YAHLI provided a recovery period (with intervention) of two years or longer.”

The data from which Mr Stevens drew those conclusions was exhibited in the form of a spreadsheet with a line for each of the claims analysed and data set out under headings that included the name of the claimant, whether they were under 16, dates of any medical examinations, whether there had been a referral to a psychiatrist/psychologist and, if so, the diagnosis and prognosis. Information entered into the spreadsheet was not redacted or subjected to any form of pseudonymisation.

In response to the service of JS1, in or around late July 2021, letters were sent from various of those included within the spreadsheet to the defendant and relevant insurers, objecting to the use of their personal data and contending that this had amounted to a breach of data protection legislation; within those letters, the point was made that pseudonymisation of the various claimants referenced in the data set would have been a less intrusive form of processing the personal data in question. In responding to these objections, the defendant made clear its position that the data processing in JS1 fell within the exemptions under the UK GDPR, as necessary for the purpose of, or in connection with, legal proceedings (or prospective legal proceedings), obtaining legal advice, or establishing, exercising or defending legal rights. It was noted that data subjects had a continuing right to object, but that this was not an absolute right. The various insurers similarly responded in like terms.