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The Bar Council Recognises The “Systemic Obstacles” Faced By Ethnic Minorities in Law

I was recently at a function in the Inns of Court. Upon my arrival a waiter came up to me with a drink and said to me: “wow these are your people”. I replied, “take a closer look around”. At that point a waitress walked into the room and I said, “now there are 3 of us”.

In a report from the race working group of the Bar Council, it was found that barristers from ethnic minorities – particularly black and Asian women – are at a greater disadvantage compared to their white peers. Barbara Mills QC and Simon Regis, co-chairs of the Bar Council race working group, say that ethnic minorities are more likely to “face systemic obstacles to building and progressing a sustainable and rewarding career at the bar” due to it being harder for ethnic minorities to enter the law; ethnic minorities being paid less and being at a greater risk of bullying and harassment. [1]

It was found in the report that candidates from ethnic minority backgrounds are less likely to obtain pupillage compared to their white counterparts – even when controlling for educational attainment.

Furthermore, the Lammy Report has highlighted that ethnic minorities are less likely to be recruited as judges despite a rise in BAME candidates applying. [2]

On average, a black female junior barrister with the same level of experience as a white male junior barrister bills £18,700 a year less, with Asian women billing £16,400 a year less. At all levels, white male barristers are at the top end of the spectrum earning the highest fee income while black female barristers are at the lowest end of the spectrum earning the lowest fee income. [1]

As well as this, black and Asian women are four times more likely to experience bullying and harassment at the bar than their white male counterparts while ethnic minorities are more likely to be referred to the regulator for disciplinary actions leading to ethnic minorities feeling “hyper visible, bullies, harassed and marginalised” at work and especially at court. [1]

Additionally, there is a clear disparity in the progression of ethnic minorities and white people at the bar with 5 black female QCs, 17 black male QCs, 17 Asian female QCs, 60 Asian male QCs, 9 mixed/multiple ethnicity female QCs, and 16 male mixed/multiple ethnicity QCs. This can be compared to the 1,303 white male QCs white female QCs. [1]

To overcome this systemic gap within the bar, the report has suggested creating goals for improving diversity within a fixed timescale and annual monitoring of data. There will be an annual update on actions taken against recommendations and a comprehensive review in 2024.

Recently, there has been action taken by the Bar Council in bridging the gap such as the promotion of Bar-based initiatives on race including Black History Month, making public statements and taking action to assist barristers who have reported experiences of racism to the council, and signing up as a support of the Black Talent Charter – an organisation which calls for meaningful action to redress the balance for black professionals in the workplace. [3]

The Bar Council has also shown its support for the 10,000 Black Interns initiative which provides paid internships for young black people at different chambers and organisations to develop their skills and build their professional network. [3]

In conclusion, I have heard much about equality, diversity and change since I started as a baby barrister. Little delivered. There is little point in a nash of one’s teeth that so little progress has been made in the law. No one will be surprised by that. So, what now? What we need to do is spend a short period of reflection and analysis to see why the past 25 years have been so slow to bring real change. Thereafter, we re-group renewed with better ideas than those of our predecessors and do so in an environment where we must now be unfettered from our past. It is time for a new and younger generation to lead from the front and to be free of any type of legacy intellectuals.

As for me, plenty of chat but what did Lawrence Power do to deliver change?

This; I rejected the old guard and created my own chambers (law firm) to bring modernity to barristers.[4] Excellence was the starting point, I do not deny that, but that excellence was welcomed from every walk of life. My discovery was that a merit only system intrinsically delivered equality and diversity.

The door is open for others to get together and set up and operate in a new genuinely inclusionary way.

www.whitestonechambers.com

[1] https://www.theguardian.com/law/2021/nov/04/barristers-from-ethnic-minority-backgrounds-face-systemic-obstacles

[2]https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/643001/lammy-review-final-report.pdf

[3] https://www.barcouncil.org.uk/support-for-barristers/equality-diversity-and-inclusion/race.html

[4] Footnote to myself, this was a tad naive and stupid at such a wee tender age and so little experience. Oh, and lest you forget it cost a small fortune too. Regrets? – Footnote Sinatra.

The World’s Biggest Corporate Law Firms “Called Out” For Being On The “The Wrong Side” Of Our Climate Crisis

In August 2021, the organisation Law Students for Climate Accountability created the “climate scorecard” which rated 100 of the top law firms from A – F based on their work in combatting climate change. The organisation has found that, over the last five years, these firms have facilitated $1.36 trillion in fossil fuel transactions, litigated 358 cases on behalf of fossil fuel clients and received $34.9 million in compensation for fossil fuel lobbying.

Some of the law firms which have scored low on the climate scorecard have released statements to promote their green goals for a sustainable future. In particular, the Magic Circle Law Firm Allen & Overy has said it does “more renewables work than any other law firm in the world by most key measures”.

Nevertheless, amongst these low scoring law firms, the report has identified Allen & Overy as the legal advisor on more transactional work for fossil fuel companies than 75 of the 100 law firms combined, Akin Gump as lobbying more for fossil fuel companies than 91 of the 100 law firms combined, and Paul Weiss as the firm responsible for more cases exacerbating climate change as 60 of the 100 law firms combined.

One of the most high-profile cases Paul Weiss has worked on was their representation of the American oil and gas corporation ExxonMobil. The company was accused of having misled investors about the risks of climate change to its businesses with the court ruling in favour of ExxonMobil in 2019. During the trial, in October 2019, climate protestors positioned themselves outside the New York County courthouse.

Tim Herschel-Burns, a third-year student at Yale Law School and co-founder of Law Students for Climate Change, stated “Everything fossil fuel companies want to do, they need lawyers to accomplish.” Herschel-Burns goes on, “But one thing that we found really striking is that overwhelmingly the top law firms are [representing] the wrong side of [the climate crisis].”

A statement from the legal director for the Center for Climate Integrity, Alyssa Johl, concurs with Herschel-Burns: “Elite law firms are representing the oil and gas companies and providing them with a deep bench of high-priced lawyers. For the communities across the country that are seeking justice, the end result is that their cases have been delayed and bogged down by procedural hurdles put forward by some of the biggest law firms in the country.”

Thom Wetzer, law professor and director of the Oxford Sustainable Law Programme, believes that law firms have a responsibility and incentive to actively move towards representing the ‘right’ side of the climate crisis: “Firms that engage constructively with the net-zero transition will be rewarded; clients will value their judgment and expertise, top talent will be more easily attracted and retained, and these firms will strengthen their social license to operate.”

USA Travel Ban To Be Lifted Monday 8-11-21: What You Need To Travel

From 12:01am on 8 November 2021, the blanket travel ban instigated by President Donald Trump’s presidential proclamation – and later reimposed by the newly elected President Joe Biden – in March 2020 will be lifted. This will allow fully vaccinated individuals from the UK, Ireland and the Schengen Area to freely travel to the US along with under-18s travelling with them. Notably, all arrivals by air to the USA must take a Covid-19 test no more than three days before travel.

Under the current rules, only individuals with a compassionate reason to travel to the USA are given a ‘National Interest Exception’ while individuals with family or partners in the USA are banned from travelling to the USA.

From Monday, individuals who have been fully vaccinated – at least two weeks before their arrival date – with a vaccine authorised by the World Health Organisation (WHO) will be able to visit the USA and will not need to quarantine on arrival. The list of permissible vaccines are as follows: Oxford AstraZeneca, Janssen (Johnson & Johnson), Moderna, Pfizer/BioNTech, Sinopharm, and Sinovac.

DOCUMENTATION NEEDED

To prove vaccination status, travellers must show a “record issued by an official source (e.g., public health agency, government agency) in the country where the vaccine was given.”

For British travellers, a copy of the NHS Covid pass can be used. While it is highly likely a digital version of the pass will be accepted, British travellers are advised to have a printed out copy of the pass as well.

In addition to proof of being fully vaccinated, travellers by air must show proof of a Covid test which was taken no more than three days before travel. British travellers are unable to use a free NHS test. Instead, they must use a test paid for privately. There is no need to take the more expensive PCR test as cheap and rapid antigen lateral flow tests are acceptable. Travellers can find a £30 test at Boots. Alternatively, Collinson holds testing centres at Heathrow, Gatwick, and Manchester airports (amongst others) for £40 with discount codes for numerous airlines that reduces the price to £32.

If you cannot provide a recent Covid test, individuals can provide proof of recovery from Covid-19 in the past three months. British travellers can use the NHS online recovery pass as proof amongst other alternatives.

EXEMPTIONS

The main exemptions for unvaccinated non-American adults comprise air or sea crew; people with diplomatic, UN or armed forces accreditation; arrivals from countries with limited vaccination programmes, (clearly not the UK); those with medical contraindications to vaccines; and people who have participated “in certain clinical trials for Covid-19 vaccination” such as AstraZeneca in the USA or Novavax Covid-19 vaccination trials. Evidence of exemption will still be required such as official documentation of clinical trial participation. Covid tests for those with exemptions must be taken no more than one day before travel rather than three days.

For unvaccinated children travelling with fully vaccinated guardians, Section 1 part 4 and Section 2 part 4 of the ‘Combined Passenger Disclosure And Attestation To The United States Of America’ form must be completed.

MASKS

It should be noted that mask-wearing on transport is mandatory within the USA and there are several restrictions imposed by individual cities and states which may interfere with your plans. For example, New York City’s ‘Key to NYC’ policy imposes individuals 12 and older to show proof of at least one dose of the Covid-19 vaccine before entering indoor dining, museums, aquariums, zoos, and performance venues.

CONTACT TRACING

On your flight, you may expect airlines to ask for the following pieces of personal information:

Full name, date of birth, email address, address while in the United States, primary contact phone number, secondary or emergency contact phone number.
Airline name, flight number, cities of departure and arrival, time and date of departure and arrival, seat number.

This is part of the CDC’s ‘Contract Tracing Order’ to collect contact information to allow public health officials to follow up with travellers who are potentially infected or have been exposed to an individual who is infected.

This is not quite open skies but we at Whitestone Aviation see this as a key moment in opening up business travel and holiday travel with what will be our biggest Brexit economic partner in the years to come.

London Trocadero LLP v Picturehouse Cinemas Ltd: Another Success For Landlords Against Tenants In Rent Arrears

Whitestone Chambers have been working throughout the last 18 months on cases such as this. If you need legal advice on any of the issues raised in this article, please do get in touch.

The case of London Trocadero (2015) LLP v Picturehouse Cinemas Ltd [2021] EWHC 2591 (Ch) marks the third success for landlords against tenants for unpaid rent during the pandemic this year.

The tenant, Picturehouse Cinemas Ltd, held two leases of cinema premises in Trocadero Centre, Piccadilly, London. Due to pandemic restrictions, the cinema had to close for certain periods which meant that Picturehouse Cinemas could not trade at all. Even during the gaps between pandemic restrictions, Central London’s trading conditions were so poor that the cinema largely remained closed and the earnings they gained were only a fraction of what they would have been in normal circumstances.

As a result of the pandemic’s impact on the cinema industry, Picturehouse Cinemas had not paid any rent since June 2020 causing London Trocadero to seek out a summary judgement for arrears of rent and service charge of £2.9 million.

The High Court rejected the defendant’s case that they were not liable to pay rent during the period when the premises could not be used as a cinema:

1. The argument that an implied term meant that rent was not payable during periods when the use of the premises became illegal and when the attendance was not at the anticipated level of Picturehouse Cinemas’ expectations. This failed because it was not obvious, and it would not give the lease ‘business efficacy’. Therefore, it did not make any commercial sense for the loss to be borne by the landlord when neither party had insured against loss by the pandemic.

2. The argument of failure of consideration as the premises could not be used for the purposes they were let for: use as a cinema. This failed because the court held that the use of the premises as a cinema was not ‘fundamental to the basis’ on which the parties had entered into the lease.

Moreover, the government’s proposal to introduce a binding arbitration scheme to help commercial landlords and tenants settle disputes regarding rent arrears that have arisen as a result of the pandemic and its restrictions was pleaded by the defendant in an attempt to adjourn the hearing. However, the court rejected the plea because the scheme was not applicable to cases on whether money was or was not owed by a tenant.

The High Court’s decision in the London Trocadero (2015) LLP v Picturehouse Cinemas Ltd [2021] EWHC 2591 (Ch) shows that tenants cannot rely on the government’s proposed arbitration scheme when seeking to avoid paying rent. Instead, this case informs tenants that they should withhold from arguing that rent is not due and attempt to come to an agreement with their landlord or go straight to arbitration. Whitestone Chambers has been working with numerous clients in negotiating and reading such agreements.

CMA Closes Investigation Into Ryanair and British Airways’ Covid Refunds Claims

The Competition and Markets Authority (CMA) have closed their investigation into whether Ryanair and British Airways owed customers who were legally prohibited from boarding their scheduled flights, due to lockdowns in their country, refunds stating that the legal position was unclear.

Despite thousands of customers being unable to go forth with their planned flights due to the restrictions of 2020 and 2021, the airlines have claimed that consumer protection law put them under no obligation to offer cash refunds to their customers. Therefore, in June 2021, the CMA began their investigation into this contentious area of law.

This month, the CMA closed their investigation into the airline companies finding that the consumer protection law entitles passengers to refunds only when the airline themselves cancels the flights to express an inability to provide their contracted services. However, as the airlines went ahead with some flights, the law is unclear about whether consumer protection law extends to passengers who were legally prohibited from taking their flight.

The CMA Chief Executive, Andrea Coscelli, believes that the law must adapt to fit with the uncertainties which have arisen from this unprecedented situation. Coscelli has stated, “Given the importance of this to many passengers who have unfairly lost out, we hope that the law in this area will be clarified.”

In addition, the regulator has argued that it would be unjustified to spend public money prolonging the investigation given the length of time it would take for an outcome to be reached in court and the uncertainty of the outcome.

Ryanair and British Airways agree with the outcome of the investigation as, in dispute to the claims from customers, the airlines argue that they have responded well to the challenges of travellers during the pandemic. The airlines offered vouchers or rebooking instead of refunds however, many customers availed this option. British Airways issued nearly 4 million refunds and offered highly flexible booking policies to the affected customers. Ryanair chief executive, Michael O’Leary, has also claimed – in a March 2021 statement to the Transport Select Committee – “All of the passengers who had requested refunds had received them.”

Fairhurst v Woodard: Neighbour Wins Security Camera Data Protection Case

In a series of disputes between neighbours Dr Mary Fairhurst and Mr Jon Woodard, over Mr Woodard’s house security system renovations which included security cameras and a Ring doorbell, a judge has held that Mr Woodard’s security system broke data laws and contributed to the harassment which led to Dr Fairhurst moving home.

It was found that Mr Woodard’s Ring doorbell captured images of Dr Fairhurst’s house and garden while the security camera mounted on Mr Woodard’s shed captured almost the whole of Dr Fairhurst’s garden and her parking space. In addition to video and image footage, the cameras collected audio data which Judge Melissa Clarke believed was “even more problematic and detrimental than video data” as it could capture the private conversations of neighbours.

Ring doorbells can pick up sound from 40 feet away enabling residents to turn their area of the neighbourhood and public space into surveillance hotbeds.

In conversation with Mr Woodard, Dr Fairhurst found that all data from the cameras were viewable by Mr Woodard on his smartphone or smartwatch in breach of the Data Protection Act 2020 and UK GDPR.

On one occasion, Mr Woodard sent Dr Fairhurst an image of her taken from the driveway camera claiming that there was a “suspicious stranger” loitering near his property. Judge Melissa Clarke determined this action as a threat and one of many examples of Mr Woodard utilising his security system to harass his neighbour.

In his defence, Mr Woodard claimed that his security system was put in place to prevent or detect crime which was claimed to be legal under s.1(3)(a) of the Protection from Harassment Act 1997. However, this was dismissed by the judge.

Amazon, the owner of Ring, has released a statement stating that customers must “respect their neighbours’ privacy, and comply with any applicable laws when using their Ring devices”. Furthermore, Amazon stated that there were privacy settings on the Ring doorbell to turn sound recording on and off.

The Information Commissioner’s Office has also stated that “Lots of people use domestic CCTV and video doorbells. If you own one, you should respect people’s privacy rights and take steps to minimise intrusion to neighbours and passers-by.”

The data privacy case of Fairhurst v Woodard (Case No: G00MK161) continues an ongoing conversation around the normalisation of domestic surveillance within our communities as the rise of relatively affordable home surveillance technology suggests that courts will be dealing with more data protection cases to do with security systems.

The Government’s New Regulations On Winding Up Petitions To Support Businesses Impacted By Covid-19 While Returning Back To The Pre-Pandemic Norm

The Amendment of Schedule 10 Regulations 2021 to the Corporate Insolvency and Governance Act 2020 is set to ease the restrictions over winding up petitions against a corporate debtor, taking effect on 1 October 2021 and set to last until 31 March 2022.

As a result of the Covid-19 pandemic, the Corporate Insolvency and Governance Act 2020 was put in place to restrict a creditor’s ability to present a statutory demand and winding up petition against a corporate debtor providing much-needed leeway for struggling businesses against the threat of winding up petitions.

Now, from 1 October 2021, those temporary restrictions – which were set to expire on 30 September 2021 – are being amended with new temporary regulations that are set to last until 31 March 2022. These regulations mean that a creditor may not present a petition for winding up unless the 4 conditions below are met:

Condition A is that the creditor is owed a debt by the company whose amount is liquidated, which has fallen due for payment, and which is not an excluded debt;

Condition B is that the debtor has been given written notice of the debt and an opportunity to provide repayment proposals for that debt;

Condition C is that at end of the period of 21 days, beginning with the day on which Condition B was met, the company has not made a proposal for the payment of the debt that is to the creditor’s satisfaction;

Condition D is that the debt is over £10,000.

In addition to these conditions, if the debtor makes proposals for payment after a creditor seeks a winding up order, the creditor must then give the court its reasons why the debtor’s proposals were unsatisfactory. The court will then review these reasons to conclude whether it can exercise its discretion to wind up a company.

Nevertheless, for commercial rent arrears built up during the pandemic, commercial landlords continue to be prevented from presenting winding up petitions onto them unless they can show that the reason for non-payment is unrelated to the pandemic.

The Schedule 10 Regulations are a reaction to the easing of pandemic restrictions with the winding up process slowly returning to its normal pre-pandemic order while continuing to support businesses still suffering from the economic fallout from the pandemic.

As well as this, these amendments are set to work alongside the proposed legislation in relation to the recently announced rent arbitration scheme. This scheme is set to apply to commercial tenants who have been affected by Covid-19 business closures and is set to encourage consensual agreement rather than continual court proceedings.

Whitestone Looks at Consumer Law Reform

Following numerous consultations, the UK Government plans to reform consumer law. These plans consist of giving regulators powers to impose fines of up to 10% of global turnover in the case of a breach of consumer legislations. Such reform – if actioned – is predicted to ‘toughen’ the regulatory environment in the consumer business sector.[1]

Problems lie upon whether all this talk of reform will be actioned, or whether weak enforcement from the consumer and sectoral regulators will leave this reform redundant. If a regulating authority, such as the Competition and Markets Authority (CMA) or the Financial Conduct Authority (FCA) believe a business to be infringing consumer law, they have no powers to compel the business to change its behaviour – such authorities can merely advise, and hope that businesses choose to act in accordance.

Despite courts withholding the power to order businesses to make such changes, the process of taking businesses to court is “lengthy, complex and costly” with no financial sanctions for civil breaches of consumer protection law, even if the business loses the case as seen in 2008 where the Office of Fair Trading took estate agent Foxtons to court over unfair provisions in its agreements with consumer landlords.[2] Currently, the CMA also has to go to court if it considers a business to have failed to comply with its investigatory powers under consumer law.[3]

These detrimental inconveniences have ultimately left regulators not wanting to take businesses to court, but instead attempting to negotiate a settlement with businesses. Such settlements, however, are not directly enforceable. In these circumstances, the regulators have no other option but to bring court proceedings against breaching businesses, leaving them at a major setback.

Notwithstanding these issues, the proposed reform promises to correlate with the powers of the CMA and other regulators in order to enforce the law in this area. Rather than having to go to court, regulators will have the powers to investigate and reach their own decision which will be immediately binding on the business in question, including an order to cease the illegal behaviour or a monetary penalty of up to 10% of the businesses global turnover to not only punish offenders but deter other businesses from engaging in such conduct. Furthermore, if the regulator believe that a business has failed to cooperate or provide sufficient information whilst under investigation, it will be entitled to impose a civil penalty of up to 1% of annual turnover, with an additional daily penalty of up to 5% of daily turnover in the case of continued non-compliance. Businesses can, nonetheless, appeal against such decisions by regulators.

These reforms will remove the necessity of court proceedings against breaching businesses by strengthening the power of the regulators, provided the Government legislates to implement this new regime.

When these reforms will ultimately come into force is unknown, though the deadline for responding to the consultation is 1 October 2021, preceding Government analysis of – and response to – any feedback and finding Parliamentary time for legislation to enact the reforms. Realistically, we think that the earliest the reform will be brought into force would now be 2023.

[1] https://www.lexology.com/library/detail.aspx?g=4b421dbf-c2ef-4f16-bac8-156695ea7347&utm_source=Lexology+Daily+Newsfeed&utm_medium=HTML+email+-+Body+-+General+section&utm_campaign=IPBA+subscriber+daily+feed&utm_content=Lexology+Daily+Newsfeed+2021-08-24&utm_term=

[2] https://www.gov.uk/cma-cases/foxtons-hidden-fees-in-lettings-agreements-with-consumer-landlords

[3] https://www.gov.uk/government/news/norton-extends-refund-rights-after-cma-action

Surveillance by the State – Data Collection and Human Rights?

The recent uprising and overtaking of the Afghanistan government by the Taliban has caused human right concerns to be pushed to the forefront of the world’s eyes and mind.. Data collection and storage may have devastating consequences for the citizens of Afghanistan.

Following Donald Trump’s deal with Taliban officials, Joe Biden still plans to withdraw all American Troops by 31 August with the UK aiming to remove troops but with no fixed date to help prevent a “humanitarian crisis”.^[1] The Taliban has suggested the data will be held for the aim of reducing voter and welfare fraud with new surveillance measures due to be implemented, including, digital identity cards for Afghan citizens and the use of biometric information – fingerprinting, iris scans and facial recognition; these potentially supporting Edward Snowden’s 2013 suggestion that surveillance is a mere “keystroke away from totalitarianism”.^[2]

Protecting Afghan Citizens:

Human Rights First – a human rights charity – has released a guide of how to avoid the misuse of biometric data and erasing your digital footprint for Afghan citizens;^[3] this could be critical for survival, with some individuals now being persecuted for posting anti-Taliban content.^[4]

The Human Rights Argument:

This, however is not an alien technology. Traditionally viewed ‘democratic’ societies like the US or UK use these forms of surveillance to protect their own citizens, but to what extent should this power be allowed to exist?

Subject to Article 8 of the European Convention on Human Rights, as expressed in the Human Rights Act 1998,^[5] is that

“Everyone has the right to respect for his private and family life, his home or his correspondence.”

This right is not to be interfered with by the state, however, there are the lawful excuses of necessity for reasons of “national security” and “public safety” amongst others. But how can a matter of public safety be accurately defined? In a democratic society the technologies may be used to prevent extremism or potential terror threats. In Afghanistan the same measures are being used to hunt-down citizens who do not promote the same values as the Taliban –which leads to the question could the same argument be used? Taliban officials may view Western ideals of democracy as a threat national security, therefore their actions would be justified as they were acting “for the prevention of disorder and crime”.

Solutions:

In the paperless age, we all should become more concerned with how governments are handling our data. Gone are the days of in-person destruction of files, with more advanced systems required to ensure data is adequately protected. Remote data destruction is a necessity so that devices are no longer accessible to those who would misuse private information. As the coalition forces withdraw from Afghanistan, these protections should have been enforced to prevent the theft of data leading to potential loss of life.

[1] Faulker, ‘Afghanistan: PM to press Biden to delay Kabul withdrawal’ https://www.bbc.co.uk/news/uk-58301269 [Accessed: 23 August 2021]

[2] Naughton, “Beware state surveillance of your lives – governments can change for the worse” Beware state surveillance of your lives – governments can change for the worse | John Naughton | The Guardian [Accessed: 23 August 2021].

[3] Human Rights First, https://www.evacuateourallies.org/resources [Accessed: 23 August 2021].

[4] Lockhurst, “Taliban ‘carrying out door-to-door manhunt’” https://www.bbc.co.uk/news/live/world-asia-58219963 [Accessed: 23 August 2021].

[5] Human Rights Act 1998, Schedule 1: The Articles.

Warren v DSG: the end of data breach litigation for claimant firms?

A recent decision made in the High Court may significantly limit data breach litigation by claimant firms.

When a business suffers a data breach involving the personal data of its customers, claimant firms seek to sign up affected customers, issuing multiple claims for damages. Such claims are often for breach of the UK GDPR, breach of confidence, misuse of private information and negligence backed by confidential fee arrangements and After the Event (“ATE) insurance. Due to the perceived complexity of data claims and cost exposure created by ATE premiums, claimant firms have opted to create their own business model fuelled by out-of-court settlements.

In the case of Warren v DSG,[1] the defendants – Currys PC World (“DSG”) – suffered an external attack which resulted in the compromise of c. 10 million customer records, and a £500,000 fine by the UK Information Commissioner’s Office for violating the seventh data protection principle under the Data Protection Act 1998 (“DPA”) by not implementing appropriate security measures.

The claimant is one of these customers, who sought £5,000 for breach of the DPA (now replaced by the UK GDPR), breach of confidence, misuse of private information and negligence. Following claims for breach of confidence, misuse of private information and negligence being dismissed, the claimants were left with only a UK GDPR claim.

Such claims were dismissed for the following reasons: (1) all of the causes of action required some positive wrongful action to be taken, and there was no positive wrongful action in such circumstances as DSG was the passive victim of an attack, thus had not intentionally facilitated the data breach; (2) such actions do not impose any form of duty on DSG; and (3) there was no clinically recognised psychiatric harm in order to find a claim in negligence.[2]

The decision in Warren v DSG will have now considerably simplify the defence of similar claims, as well as making it increasingly difficult for claimant firms to recover ATE premiums in such cases due to the lack of a privacy claim, undermining the business model of claimant firms.

The judgement can be read here: https://www.bailii.org/ew/cases/EWHC/QB/2021/2168.html

[1] Darren Lee Warren v DSG Retail Limited [2021] EWHC 2168 (QB)

[2] https://www.shoosmiths.co.uk/insights/articles/data-breach-litigation-tap-brakes-end-road-claimant-firms