What a difference an “s” made

Inaccuracy in personal data can be damaging. Inaccuracy in company data even more so…

By the interplay of section 4(4) and the fourth principle of Schedule One of the Data Protection Act 1998 (DPA) a data controller has an obligation to ensure that “personal data shall be accurate and, where necessary, kept up to date” (although if the data controller has taken reasonable steps to ensure the accuracy of the data the principle will not have been contravened).  A failure to comply with this obligation in circumstances which lead to damage on the part of the data subject can gives rise to a claim for compensation.

“Personal data”, of course, is data which relates to a living individual who can be identified from that data or from that data in conjunction with other information. But what obligation is there on a relevant organisation to process data on non-natural persons accurately? Can, for instance, a duty, breach of which may give rise to a claim in negligence, be owed to a company by Companies House which requires the latter to record data about the former accurately? This question was the key one of three preliminary issues to be determined by Mr Justice Edis in a recent case in the High Court.

The claim was brought by the person who had been Managing Director of “Taylor and Sons Limited”, a firm which, admittedly, had “suffered a setback because of the recession and the banking crisis” but traced its roots back to the late 18th Century. Nonetheless, it was in the in the process of taking to steps to raise money, reduce costs and diversify its customer base. However, at the same time, a company call “Taylor and Son Limited” (note “Son” singular) was the subject of a winding-up order in the Chancery Division of the High Court under the provisions of the Insolvency Act 1986. The judgment describes what happened next

The Order, which did not include the company number, was received by Companies House on the 12th of February 2009, on which date a bar-code confirming receipt was affixed. On 20th of February 2009 the CHIPS system (the Companies House computer system on which the information concerning registered companies is kept) was amended by the registration of the Order, not against Taylor & Son Limited, as it should have been, but against Taylor & Sons Limited, the Company… The error in this case was, therefore, describing a company as being in liquidation when it was not.

For a short period of time, therefore, until the error was noticed by Taylor and Sons‘ accountant and auditor, and amended, Companies House records were incorrect. However, and crucially, Companies House also creates and distributes what are known as “bulk products” which it sells to clients who then distribute the contents in turn to their clients. In essence these are bulletins summarising company liquidation news for those who have need to access it quickly. News of Taylor and Sons‘ apparent liquidation was included in these bulk products, and, the court found, no real attempt was made to correct the false information. In short, the error was not decisively nor widely corrected quickly.

What happened next to the company was deleterious – it went into Administration on 9th April 2009:

the Company ran out of cash and the Bank would not lend it any more….its suppliers demanded to be paid up to date before supplying any further goods or services rather than allowing the usual 30 days credit which actually extends to 90 days in real life

Questions the court had to determine were – did the error by Companies House cause the failure of the company? and did Companies House owe a duty of care to the company to record data about it accurately? (the defendant conceded that, if there was such a duty, it had been breached).

In answer to the first, the court heard detailed and compelling submissions from the claimant, and found the causation point proved

There is no evidence of any other precipitating factor, and the suggestion made by the Defendants that actions of others or of the Company in addressing the consequences of the error were new causes which break the chain of causation between the error and the administration are without foundation.

As to whether a duty of care was owed, the judge was reluctant to hold that a statutory duty existed under the provisions of the Companies Act 1996, and, in any case, did not have to decide that point, because he did hold that a common law duty existed, following the three-stage process in Caparo Industries v. Dickman [1990] 2 AC 605.

the Registrar owes a duty of care when entering a winding up order on the Register to take reasonable care to ensure that the Order is not registered against the wrong company. That duty is owed to any Company which is not in liquidation but which is wrongly recorded on the Register as having been wound up by order of the court. The duty extends to taking reasonable care to enter the Order on the record of the Company named in the Order, and not any other company

So, because of the addition of an “s”, a company went under, and Companies House is facing a damages claim which the Telegraph suggests might run to £9million.

One doubts that an inaccuracy in personal data would ever give rise to a claim that high.

The views in this post (and indeed all posts on this blog) are my personal ones, and do not represent the views of any organisation I am involved with.

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Filed under accuracy, Data Protection

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