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

Before going on to consider the legal questions that arise, it is helpful to first be clear as to the factual basis for these claims.

There is no dispute that, by means of JS1, the defendant processed the personal data of the claimants, including special category data, without first obtaining their consent. Equally, however, it is apparent that the defendant undertook that processing on the instructions of its clients, which were insurer defendants to claims, or threatened claims, made by a number of claimants, including C1, C2 and C3. Those instructions arose from concerns as to the way in which a large number of claims, represented by the same firm of solicitors (Ersan) and generally using the same medical experts, were being pursued; specifically, there were a very high number of claims of lengthy psychological injury, which raised suspicions of exaggeration and possibly fraud. Although the claims of C2 and C3 had been compromised prior to JS1, and the formal proceedings in C1’s case were only issued subsequently, the claim notification forms received from Ersan had made clear that they were seeking to pursue personal injury proceedings relating to road traffic accidents falling within the period under review (22 February 2016 to 1 March 2021), and the information in the claimants’ claim notification forms was thus included in the JS1 dataset (whether or not individual claims raised the particular issues that had given rise to the defendant insurers’ concerns, it was obviously necessary to include all claims/potential claims falling within the relevant time period; indeed, not to do so would (rightly) have been open to the criticism that the defendant had been improperly selective in creating the data pool).

The purpose of the JS1 data processing has thus been clear throughout: given the concerns that had arisen in relation to the Ersan claims, this evidence, taken from some 372 claims or threatened claims, was to be used in support of applications by insurer defendants in the County Court proceedings for the dismissal of claims on grounds of fundamental dishonesty pursuant to section 57 Criminal Justice and Courts Act 2015. There is no dispute that this can be an entirely proper application to make in personal injury proceedings (indeed, the importance to the administration of justice of combatting exaggerated and/or fraudulent claims has been recognised in numerous cases; see the observations made in Liverpool Victoria Insurance Co Ltd v Zafar [2019] EWCA Civ 392 at [47]-[50]) and it would clearly be open to a defendant to rely on similar fact evidence – information drawn from a much larger body of evidence to demonstrate a particular pattern of conduct - in seeking to establish what is said to be an exaggeration or fraud in an individual claim (see O’Brien v Chief Constable of South Wales Police [2005] UKHL 26 at [4]-[5], and (relating to the current proceedings) Kerseviciene v Quadri [2022] EWHC 2952 (KB) at [35]). As for the individual claimants: fundamental dishonesty is expressly pleaded in the defence to C1’s claim; the information provided in respect of the claims/proposed claims of C2 and C3 is simply part of the overall dataset comprising the evidential base for JS1.

Thus identifying why the defendant undertook this data processing, I am satisfied that this was for a specified, explicit and legitimate purpose, carried out in performance of the defendant’s professional (and regulatory) obligations to its clients, for the public interest task of ensuring the proper administration of justice, and for the purpose of the legitimate interests of the defendant’s clients.

It is also helpful at this preliminary stage to be clear as to the extent of the processing involved in JS1, which is explained in some detail in JS2. There is no issue with the initial sharing of data between the defendant and individual insurers as defendants/potential defendants to the notified claims (that would be an inevitable part of the giving/taking of instructions in litigation involving insurer clients); the dispute relates to the use of data drawn from a large number of claims in the creation of JS1. Although the claimants initially had concerns that this data set had been shared with the different insurers and with other third parties, such as the IFB and the GMC, I accept the evidence of Mr Henman that this was not the case: other than the limited number of individuals within the defendant who were involved in the data processing or who otherwise had a reason for seeing/overseeing JS1, the only disclosure of that data by the defendant was to Ersan and to the relevant courts. I return below to the specific complaints made in respect of the processing in this case, but it is relevant to note that, on the evidence, the further disclosure of this data to other individual claimants or potential claimants (that is, to all those listed in the spreadsheet which formed part of JS1) was by Ersan, not the defendant.

As for the claimants’ particular objections, I am prepared to accept that each of the claimants is genuinely aggrieved that their personal data – in particular their names and details of medical referrals – has appeared on a spreadsheet which is intended to be used in court proceedings other than their own. There is, however, a question as to the extent of that grievance and as to whether it can be said to be justified or reasonable. Again, these are points to which I return below. At this stage, however, it is necessary to address some of the particular issues arising from the evidence given by, and on behalf of, the claimants.

Although I am prepared to accept that C1 may have used a translator when giving evidence because she lacked confidence using English (not her mother tongue) in court proceedings, given that she chose to communicate with the court solely in Turkish, had the defendant not investigated the position, I would have been unaware that she had a degree from an English university, was ESL qualified, and held herself out as an ESL teacher. These are matters that could have been volunteered by C1, explaining why she nevertheless preferred to give her evidence through an interpreter; the fact that she did not do so gives the impression that C1 was not necessarily fully open in her testimony. As for the substance of C1’s evidence, given that the question of fundamental dishonesty has been expressly raised as an issue in her on-going personal injury claim, I am unable to see any reasonable basis for her objection to the disclosure of her personal data, in the form of JS1, to either Ersan (C1’s own solicitors, and the original source of the data from the defendant’s point of view) or the court. To some extent, C1 acknowledged this in her evidence, focusing on the fact that “other people” – referring to others in the Turkish/Kurdish community in this country who were also listed on the JS1 spreadsheet – would have been able to see her sensitive data, albeit apparently not understanding that it would not have been the defendant that disclosed JS1 to those “other people”.

C2 and C3’s evidence focused on the fact that they had believed their claims had been resolved and they did not see why their personal data, in particular given that it related to C2 when he was a child and (in both cases) included otherwise private medical information, should be used in cases involving other claimants. All three claimants were clear that they were not simply bringing these proceedings to assist Ersan, but equally all three were reluctant to explain how the claims were being funded, suggesting only that there was an arrangement in place with Ersan in this regard. Accepting, as I do, that the three claimants each have some sense of grievance about the processing of their data in JS1, I am nevertheless left with a question as to whether that grievance has been encouraged in some way.

Turning then to the evidence of Mr Gadd, it is hard to do other than accept the defendant’s description of his evidence (in closing submissions) as extraordinary. Mr Gadd was unable to explain why he was giving evidence in these proceedings other than the fact that he was being paid to do so. That was a remarkable admission, in particular given the earlier dispute relating to his statement and the questions that had been raised regarding his status as a witness (issues addressed in my judgment of 1 April 2025). Moreover, given that the defendant has at all times made clear its view that these claims are an abuse, motivated by Ersan’s wish to undermine reliance on JS1 in the remaining claims before the County Court, the only sensible inference would seem to be that Mr Gadd was advanced as a witness to avoid having to call someone from Ersan with direct involvement in the conduct of these proceedings.