A concession of an issue by the defendant in Halliday v Creation Consumer Finance means the law is still unclear as to whether nominal damages trigger compensation for distress arising from a contravention of the Data Protection Act
Section 13(1) of the Data Protection Act (DPA) provides a right to compensation for a data subject who has suffered damage by reason of any contravention by a data controller of any of the requirements of the Act. The domestic authorities are clear that “damage” in this sense consists of pecuniary loss. Thus, section 13(1) is a “gateway” to a further right of compensation under section 13(2)(a), for distress. The right to distress compensation cannot be triggered unless section 13(1) damage has been suffered.
section 13 distress damages are only available if damage in the sense of pecuniary loss has been suffered
In the case at first instance the judge had found against Mr Johnson in his claim that a failure to renew his membership was caused by unfair processing of his personal data. However, if the first head of claim had succeeded, pecuniary damages in the sum of £10.50, to cover the cost of a breakfast (don’t ask) would have been owed, and
the price of that breakfast [would have represented] his gateway to a right to recover compensation for distress under section 13(2)(a)
This point, already largely hypothetical, fell away on appeal, because the Court held
The Judge was not entitled to find that this, the only item of pecuniary damage that survived, was attributable to damage for which the MDU was responsible
The judgment in a recent case, Halliday v Creation Consumer Finance Ltd (CCF)  EWCA Civ 333 had been anticipated as possibly clarifying whether nominal, as opposed to substantial, damages under section 13(1), could suffice to be a gateway to distress compensation, and, indeed, whether the DPA effectively transposes the requirements of the European Data Protection Directive to which it gives effect. The case concerned errors by the defendant regarding disputed payments, which affected the claimant’s credit record. As Robin Hopkins said in a recent post on the Panopticon blog, after reports of the ex tempore judgment surfaced,
In Halliday…nominal damages (of £1) were awarded, thereby apparently fulfilling the ‘damage’ requirement and opening the door for a ‘distress’ award (though note that Panopticon has not yet seen a full judgment from the Court of Appeal in this case, so do not take this as a definitive account). If that approach becomes standard practice, claimants may be in much stronger positions for seeking damages.
Now that the full judgment has been made available, it can be seen that Mr Halliday did indeed succeed in using the nominal £1 damages as a gateway to £750 compensation for distress, but only because the defendant conceded the point:
this issue, which was the main issue of the proposed appeal to this court, is now academic as the respondent, CCF, concedes an award of nominal damages is “damage” for the purposes of the Directive and for the purposes of section 13(2) of the Data Protection Act 1998
So it appears we must continue to wait for fuller consideration of the meaning of the word “damage” in both the Directive and section 13 DPA.
UPDATE: Robin Hopkins has blogged on this case at the Panopticon blog. As he says – and as I may have omitted – “the judgment is not without its notable points”.