An award of nominal DPA damages in the High Court.
Whether, or in what circumstances, compensation may be awarded to a claimant who shows a contravention by a data controller of any of the requirements of the Data Protection Act 1998 (DPA), is a much-debated issue. It is also, occasionally, litigated. One key aspect is when compensation for distress might be awarded.
Section 13 of the DPA provides, so far as is relevant here, that
(1)An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage.
(2)An individual who suffers distress by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that distress if—
(a)the individual also suffers damage by reason of the contravention
The general interpretation of this has been that compensation for distress, in the absence of pecuniary damage, is not available. The leading case on this is Johnson v The Medical Defence Union Ltd (2)  EWHC 321 and on appeal Johnson v Medical Defence Union  EWCA Civ 262, with Buxton LJ saying in the latter
section 13 distress damages are only available if damage in the sense of pecuniary loss has been suffered
However in allowing an appeal in Murray v Big Pictures (UK) Ltd  EWCA Civ 446, and directing that the case go to trial, the Court of Appeal was prepared to consider a different view
It seems to us to be at least arguable that the judge [in the first instance] has construed ‘damage’ too narrowly, having regard to the fact that the purpose of the Act was to enact the provisions of the relevant Directive
But that case was ultimately settled before trial, and the issue left undecided.
Clearly, the decision in Johnson is potentially controversial, especially in cases (of which Johnson was not one) where the UK’s obligations under the European Data Protection Directive, and data subjects’ associated rights under the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, are taken into account. This much was recognised by Tugendhat J, in giving permisssion to the applicants in Vidal -Hall & Ors v Google Inc  EWHC 13 (QB) to serve on Google Inc out of jurisdiction. He noted (¶83-104) academic statements on the issue, as well as the European Commission’s view that the UK DPA wrongly restricts “[t]he right to compensation for moral damage when personal information is used inappropriately”, and said
This is a controversial question of law in a developing area, and it is desirable that the facts should be found. It would therefore be the better course in the present case that I should not decide this question on this application.
I shall therefore not decide it. However, in case it is of any assistance in the future, my preliminary view of the question is that Mr Tomlinson’s submissions are to be preferred, and so that damage in s.13 does include non-pecuniary damage
This is a fascinating point, and detailed judicial consideration of it would be welcomed (it may also be at issue in the impending case of Steinmetz v Global Witness Ltd) but, in the meantime, a question exists as to whether nominal pecuniary damage opens the door to awards for distress. In Johnson, the cost of a £10.50 breakfast had opened the door, but this was actual (if minor) damage. Last year, the Court of Appeal avoided having to decide the issue when the defendant conceded the point in Halliday v Creation Consumer Finance Ltd (CCF)  EWCA Civ 333 (about which I blogged last year). However, in a very recent judgment, AB v Ministry of Justice  EWHC 1847 (QB), which takes some wading through, Mr Justice Baker does appear to have proceeded on the basis that nominal damages do give rise to distress compensation.
The case involves an (anonymous) partner in a firm of solicitors who, as a result of events involving the coroner following his wife’s tragic death, made a series of subject access requests (under the provisions of section 7 DPA). The Ministry of Justice (MoJ) did not, it seems, necessarily handle these well, nor in accordance with their obligations under the DPA, and when it came to remedying these contraventions (which consisted of delayed responses) the judge awarded nominal damages of £1.00, before moving on to award £2250 for distress caused by the delays.
What is not clear from the judgment is to what extent the judge considered the MoJ’s submission that compensation for distress was only available if an individual has also suffered damage. The answer may lie in the fact that, although he awarded nominal damages, the judge accepted that AB had suffered (actual) damage but had “not sought to quantify his time or expense”. Query, therefore, whether this is a case of purely nominal damage.
One hopes that Vidal-Hall and Global Witness give the occasions to determine these matters. One notes, however, the vigour with which both cases are being litigated by the parties: it may be some time before the issue is settled once and for all.