UT (Tax & Chancery) UT-2024-000010 - [2024] UKUT 00416 (TCC)

Mr Cherry made extensive written and oral submissions in support of the Privacy Applications, concentrating upon the effect on the Applicant’s mental health of publication of the reference or Decision Notice.

Mr Cherry argued that the Applicant had provided cogent written evidence of the impact of publication of the reference and Decision Notice on her mental health.

This evidence is said to be from three sources: (1) Dr [S], the Applicant’s General Practitioner (a Doctor); (2) [] the Applicant’s counsellor (who is a member of the British Association for Counselling and Psychotherapy and holds a Masters’ Degree in Counselling); and (3) the Applicant herself.

He relied upon the decision in Darren Anthony Reynolds v FCA [2023] UKUT 234 (TCC) (Reynolds) which makes clear at [20] that it is incumbent on the Applicant to produce cogent evidence that there is significant likelihood of harm which makes publication unfair. In this case, he says there is such evidence. The notion of significance in this context confirms that it must not be fanciful or merely possible, but something tangible and real to the Applicant, which is supported by evidence, from any source and of any type capable of being considered against the burden of proof carried by the Applicant. The “significance” here relates to the likelihood of harm occurring and not a measure of the extent of the harm itself.

Mr Cherry argued that insofar as the application in Reynolds related to the mental health of the applicant there, it is clear there was a dearth of evidence. At [49] of the Decision the UT observed that:

“Turning to the issues of the impact of the publication of the Decision Notice on the mental health of Mr Reynolds and his son, Mr Reynolds has produced no medical evidence in support of his account of his or his son’s mental state. Even if Mr Reynolds or his son suffered from mental health issues, that is not a reason not to publish the Decision Notice. Their mental health issues would only be relevant if it could be shown that there was a real risk that publishing the Decision Notice would have an adverse impact on their health and Mr Reynolds produced no evidence to suggest that this is the case.”

He submitted that, unlike in Reynolds, the Applicant has produced medical and other related evidence in support of her contention that publication of the Decision Notices would have an adverse effect on her mental health.

He contended that Dr [S] had provided medical evidence twice in support of the Privacy Applications. The first element is the letter at (B/22). The date of this letter is 19 April 2024. That letter confirms that during the time of preparation for the Privacy Applications, the Applicant had a telephone consultation, which confirms that she was currently medicated in respect of her mental health, which had assisted in improving her mood. That letter records that the Applicant’s medication had been recently increased. It also confirmed that the Applicant was not eligible for a psychiatric referral on the NHS.

Mr Cherry suggested that the second letter from Dr [S] provided further medical evidence (B/23). The date of that letter is 16 May 2024. This letter provides medical evidence of the Applicant’s mental health history. It confirms that in June 2017, the Applicant was prescribed antidepressant medication to assist with her mood. That date coincided with the visit to her premises and the start of the Authority’s investigation into the Applicant’s conduct. He argued that this was no coincidence and the Authority’s investigation caused the deterioration in the Applicant’s mental health.

He argued that the second letter confirms that in March 2020, during COVID and during the ongoing FCA investigation into her conduct, the Applicant had the dosage of her antidepressant medication doubled. The second letter also confirms that in February 2021, during a medication review, the then dosage of her medication was helping to manage her mood, alongside online cognitive behavioural therapy the Applicant had been receiving. He submitted that this is clear evidence of the ongoing mental health issues the Applicant had experienced.

Mr Cherry contended that the second letter also confirms that in January 2024, the Applicant reported having a deterioration in her mood over the preceding few months, and so her antidepressant medication had been increased a further 50% from the previous dose. The period of mood deterioration experienced and reported by the Applicant to her doctor coincided with the issuance of the warning notice and the Regulatory Decisions Committee (“RDC”) hearing process and pending issuance of the Decision Notices.

He relied on the fact that Applicant is medicated through an antidepressant [medication], and a copy of the prescription for that medication dated 10 January 2024 is found in the bundle (B/19). That prescription confirms the current prescribed dosage of [the medication] as items 2 and 3 on that prescription with a combined dosage [] per day. These dosages and medications and their purposes and effect are corroborated in the letter from Dr S (B/23).