The Court of Appeal has thrown out data protection claims against national firm DWF after the pleaded case was found to have changed at the last minute without permission.
Lord Justice Warby, giving the lead judgment in Kul & Ors v DWF Law LLP, said the claims advanced in the action had ‘fluctuated and mutated’ over time and changed at least once during the appeal itself.
Each of the appellants had made personal injury claims which had been defended by DWF. The firm used information about them in other personal injury litigation to support a contention that the claims were fundamentally dishonest. There were 127 individuals named in the initial group claim, who complained that DWF had infringed their data protection rights. Some 124 claims were abandoned and discontinued before trial.
The claims were dismissed after a trial by Mrs Justice Eady, who found that the firm’s processing of the appellants’ personal data was lawful, fair and compliant.
During the appeal, the appellants argued that the judge erred in law and should have held that processing personal data was disproportionate and a breach of UK GDPR. They also argued that the judge should have found that DWF might engage in such processing in future and granted declarations that this would be unlawful.
Lord Justice Warby said this future processing point was a new, unpleaded case which was advanced for the first time at the hearing of the appeal. Legally and factually, he noted, it was inconsistent with the position adopted before the court previously.
‘The appellants need the court’s permission and relief from sanctions to change their position at this late stage,’ he said. ‘Assuming the court has jurisdiction to allow this, I can see no good reason for doing so. It would be prejudicial to DWF, and to the interests of justice more generally. The merits of the new case do not outweigh that prejudice.’
The judge outlined how no application was made for permission to amend the appellants’ statement of case or their grounds of appeal. No draft re-amended particulars of claim were presented to the court, nor were any draft amended grounds of appeal provided.
What happened at the hearing, Warby added, was in terms of the remedies sought an ‘about turn’ which was in and of itself unfair to DWF, regardless of any costs implications. No good reason was put forward for not raising the new point until a very late stage.
Warby stopped short of declaring the appeal an abuse of process but added: ‘I do however conclude that the appeal has been wasteful of time and resources in a way that is, fortunately, highly unusual, and without any good reason being apparent.’
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