The High Court has struck out a claim brought under the UK GDPR, ruling that it was an abuse of process as it should have been brought at the same time as an earlier claim for defamation.

Background

The case concerned the publication by the Daily Mail and Mail+ app of an article in June 2023 which concerned the story about the Labour Party returning a £100,000 donation by a City financier, Davide Serra, who had been accused of sexual harassment.

Also included in the article was reference to a further apparent cause of embarrassment for the Labour Party as another of its donors, Dale Vince, had joined a Just Stop Oil protest.

The article was originally published with the headline “Labour repays £100,000 to ‘sex harassment’ donor”. However, rather than publishing a photo of Mr Serra, immediately below the headline and before the article began were two photos of Mr Vince.

Mr Vince issued proceedings for defamation. Whilst he accepted that the ordinary reader, upon reading the article itself, would very quickly realise that he was not the person to whom the headline referred, Mr Vince argued an innuendo case. In essence, he argued that a substantial number of readers – knowing what they do about headlines and photographs accurately summarising an article – would have seen the headline, the two photographs, and the caption, and understood that the Daily Mail was saying that it was Mr Vince who was guilty, or had been accused, of sexual harassment.

After a hearing on 19 February 2024, Mr Vince’s case was struck out in a judgment by HHJ Lewis on 15 July 2024.

The dates are important as a month before judgment was handed down, on 5 June 2024, Mr Vince also brought a claim under the UK GDPR in relation to the same article, alleging that the processing of his data was not done ‘fairly’ as it was “unexpected and unduly detrimental and without justification”.

In response, as well as applying for summary judgment, Associated Newspapers applied for the UK GDPR claim to be struck out as an abuse of process on the basis that it could and should have been brought in the same proceedings as the defamation claim. In support of its position, it pointed to a number of instances in which Mr Vince’s solicitors expressly referred to his having a claim under the UK GDPR during pre-action correspondence in the defamation claim in 2023.

High Court Judgment

In his judgment, Mr Justice Swift first considered the application of the rule in Henderson v Henderson, which posits that it is an abuse of process to litigate an issue that has already been litigated, or which could and should have been raised in earlier proceedings.

Reviewing the authorities, Mr Justice Swift concluded that the rule in Henderson v Henderson did not apply since at the time that Mr Vince issued his UK GDPR claim, judgment had not yet been handed down in the defamation claim. As he explained, whilst the Henderson rule may have some flexibility, a “founding requirement for its application” is that there needs to have been a previous determination by a court.

However, the judge then turned to the court’s power to strike out a case under CPR 3.4(2)(b) and concluded that the claim should be struck out as an abuse of process. He held that “there was every reason why the UK GDPR and defamation claims should have been brought in the same proceedings. Both claims arose out of the same event – the publication of the article in Mail+ and the Daily Mail. Both claims rely on the same factual circumstances, namely the juxtaposition of the headline, photographs and caption, and the contention that the combination of the headline and the photograph created the misleading impression that Mr Vince had been accused of sexual harassment. In one claim this was said to be defamatory, in the other the misleading impression created was said to comprise unfair processing of personal data. Neither claim was legally complex, pleading the claims together would not have given rise to any form of difficulty”.

The judge was not in a position to determine whether Mr Vince had held back the UK GDPR claim “in reserve, to be deployed only if the defamation claim failed” or if by the time the defamation proceedings had been commenced, a decision had been made not to pursue the UK GDPR claim. Whichever it was, however, he was clear that “no sufficient reason for that choice has been provided” and that “what has happened in this case is a significant departure from any ordinary or proper use of the court’s process”.

The judge therefore struck out the claim and also held that, even if he had not, he would have granted summary judgment on the basis that “as in the defamation proceedings, it is accepted that on reading the text of the article published in Mail+ and the Daily Mail any ordinary reader would very quickly realise that Mr Vince was not being accused of sexual harassment. Considered on this basis the personal data relating to Mr Vince was processed fairly.”

To read the judgment in full, click here.