上诉法院判决：个人数据保护

DATA PROTECTION — Personal data —Processing — Selection of information from manual and electronic files — Whether compilation in computer-created document constituting creation of data capable of being “processed” — Data Protection Act 1998, ss 1(1), 13, Sch 1, Pts 1, II

Johnson v Medical Defence Union Ltd (No 2) [2007] EWCA Civ 262

CA: Buxton, Arden and Longmore LJJ: 28 March 2007

It was not the case that the selection of information from various manual and electronic files and its compilation in a computer-created document was the creation of data capable of being processed.

The Court of Appeal so stated, inter alia, when dismissing the appeal of the claimant, David Paul Johnson, and allowing the cross-appeal of the defendant, the Medical Defence Union Ltd, arising from a decision of Rimer J sitting in the Chancery Division on 3 March 2006; The Times, 4 April 2006, dismissing the claimant’s claim for compensation for the unfair processing of data under the Data Protection Act 1998.

The claimant was a consultant orthopaedic surgeon who had been a member of the defendant, a mutual society providing its members with a range of benefits including professional indemnity cover. The claimant’s record caused the defendant to carry out a risk assessment review in relation to him. The procedure involved a consideration of the claimant’s files by a risk manager. Twelve of the files were manual, none of which amounted to a relevant filing system under section 1 of the 1998 Act; three were held in electronic form; one was held on a computer compact disc; and one was held on a microfiche file. Information was selected from the files by the risk manager and entered into a computer-created document called a risk assessment review form. A committee of senior clinicians considered that form and decided to terminate the claimant’s membership. The claimant sought compensation under section 13 of the 1998 Act on the ground that the defendant processed his personal data unfairly in breach of the first data protection principle and that that had led to his expulsion from the society. The claim included compensation for damage to his professional reputation. The central issues before the judge were: (i) whether the risk review involved any “processing” of the claimant’s personal data; (ii) if it did, whether such processing was unfair; (iii) if it was, whether it had been shown that, if the processing had been fair, the termination decision would probably not have been made; (iv) if the claimant succeeded thus far, what, if any, compensation he would be entitled to. The judge’s respective conclusions were: (i) yes; (ii) only in a minor and inconsequential respect; (iii) and (iv) did not arise, but if they did the answers to them would be (iii) yes, on the balance of probabilities, and (iv) £10.50 for pecuniary loss, £5,000 for distress; and if (contrary to the judge’s view) damage to reputation was a valid head of claim under the 1998 Act, £1,000 in that respect. On appeal, the claimant challenged finding (ii), and the judge’s approach to, and thus the level of, the sums awarded under, (iii) and (iv). The defendant cross-appealed against finding (i) as to processing, and against findings (iii) and (iv) on the ground that in any event no damages were recoverable.

BUXTON LJ said that the first question was whether the selection of information by the risk manager constituted “processing” under the 1998 Act, but neither the 1998 Act nor Directive 95/46/EC supported the claimant’s case. The judge had accordingly erred as to the first issue in holding that the selection of the data amounted to processing of data in the terms of the 1998 Act. It followed that the cross-appeal on that issue would be allowed, and that was sufficient to dispose of the proceedings.

ARDEN LJ gave a dissenting judgment as to issue (i), and LONGMORE LJ agreed with BUXTON LJ as to issue (i) and the result.

Appearances: Martin Howe QC and Ashley Roughton (Withers LLP) for the claimant. Richard Spearman QC and Jacqueline Reid (Fladgate Fielder) for the defendant.

Reported by: Matthew Brotherton, barrister.