[2024] UKUT 287 (AAC)

Mr Lockley did not accept that the grant of permission included the points raised in paragraphs 19(3) and (4) of the grounds of appeal. He said that the terms of the Upper Tribunal’s order specifically limited the permission in respect of Grounds 1 and 3 “as identified and explained below”. This was reinforced by the terms of paragraph 1 of the Reasons. The body of the reasons made no reference to the paragraph 19(3) and (4) points. He also contended that for the grant of permission to embrace these points would be inconsistent with the refusal of permission on Ground 4, which concerned the FTT’s “substantial distress” finding, as one of the points raised under this ground was that the FTT had erred in assuming for these purposes that the attackers could link records of personal information to the EMV Data.

In terms of the substantive dispute, Mr Lockley said that the FTT had sufficient material from its other findings in relation to the non-financial data, to be satisfied that the section 55A criteria was met, so that the alleged error was not material. He also suggested that at paragraph 113 of its decision, the FTT did make a “very tentative” finding that the third party attackers would be able to link records of personal data with the EMV Data. As regards quantum, he reminded us that there was no live ground of appeal in respect of the figure determined by the FTT.