EWHC-KBD 2025 753 [2025] EWHC 753 (KB) 0.26.19 6577f1f69810b66ae1c9e5f8363cd4564cb851fe3ce1c670e7edaa346ab0d246
7.4.0
Neutral Citation Number: [2025] EWHC 753 (KB)
Case No: KB 2023 004108
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 01/04/2025
Before :
THE HONOURABLE MRS JUSTICE JENNIFER EADY DBE
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Between:
(1) YESIM KUL
(2) ROHAT MAHIR (BY LITIGATION FRIEND MAHMUT MAHIR)
(3) MAHMUT MAHIR
Claimants
-and-
DWF LAW LLP
Defendant
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James Megarry (instructed by Ersan & Co Solicitors ) for the Claimants
Robin Hopkins (instructed by Clyde & Co LLP ) for the Defendant
Hearing date: 11 March 2025
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APPROVED JUDGMENT
This judgment was handed down remotely at 10.30am on 1 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives
(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).
.............................
Mrs Justice Jennifer Eady DBE:
Introduction
1.
This is my judgment on the claimants’ application for specific disclosure, and the defendant’s applications (i) to amend its amended defence, and (ii) for parts of the 7 January 2025 witness statement of Mr Christopher Gadd, solicitor for the claimants, to be struck out.
2.
This judgment addresses interlocutory applications made in relation to claims brought under the United Kingdom General Data Protection Regulation (“GDPR”). The substantive hearing is to be listed for hearing in a trial window from 6 May 2025 to 27 June 2025.
Background
3.
The claimants’ claim is brought under the GDPR. The claim initially involved 137 claimants but subsequently all but the current three claimants (originally the first, thirty-sixth and thirty-seventh claimants) discontinued their claims. For convenience, when necessary to distinguish between them, I refer to the current claimants as C1, C2 and C3.
4.
The claimants were involved in road traffic accidents; C1 in an accident on 19 January 2019, C2 and C3 in an accident on 2 October 2016. Ersan and Co Solicitors (“Ersan”) were instructed to act for each of the claimants.
5.
A claim form was issued in respect of C1 on 22 February 2022; the insurers for the defendants to that claim are Ageas Insurance Limited and Haven Insurance Company Limited. At the date of issue of the current proceedings, C1’s claim was continuing.
6.
In respect of C2, after pre-action correspondence, on 22 January 2019, C2’s potential personal injury claim was settled. From the date of the accident to the date of settlement, C2 was a minor and acted through C3, his father and litigation friend. C3 also pursued a claim in his own right. A claim form was issued in respect of C3 on 7 July 2017 and his claim was settled on 5 October 2017. The insurers for the defendant in respect of both C2 and C3 was Calpe Insurance Company.
7.
The defendant is a law firm that acts for a number of insurer clients who are the substantive defendants to a large number of road traffic accident (“RTA”) claims brought by individuals represented by Ersan, including the insurers for the defendants to the claims advanced by each of the claimants.
8.
During separate proceedings in the county court (not involving any of the present claimants), the defendant’s director and head of organised fraud, Mr James Stevens, made a witness statement, dated 18 June 2021 (amended on 14 October 2021), with various exhibits; this statement is referred to as “JS1”. Specifically, reliance was placed on JS1 in five claims before the county court in which Ersan acted for the claimants and the defendant for the relevant insurer defendants. Pleas of fundamental dishonesty had been entered in respect of each of the claims and JS1 contained an analysis of claims data provided to the defendant by 18 of its insurer clients, as follows:
“7.
The dataset consists of claims that have been received by DWF LAW LLP up to 21 April 2021 where the accident date range is dated from 22 February 2016 to 1 March 2021. The dataset consists of 372 Claimants with a mixture of litigated and non-litigated matters. This is considered to be a sufficient sample to evidence patterns and behaviours on claims where Ersan and Co are instructed by the Claimants and DWF Law LLP have been instructed to defend the claims. ...”
9.
It is common ground that the data referred to in JS1 included the personal data of C1, C2, and C3, including health data such as would amount to a special category of personal data for the purposes of the GDPR. It is also not in dispute that the consent of the claimants was not sought before it was processed by the defendant.
10.
During the course of August 2021, applications were made in the five county court cases for the defendants in those proceedings to be debarred from relying upon JS1. Initially, in objecting to the admission of JS1, Ersan (as solicitors for the claimants) had contended that the statement gave rise to various “ data protection legislation breaches ” and also objected to JS1 on the grounds of relevance. In seeking to meet those initial objections, on 23 September 2021, Mr Stevens made a further statement (“JS2”), in which he explained the evidence gathering process that had led to JS1.
11.
The applications were listed for hearing on 5 October 2021, before Her Honour Judge Backhouse. At that stage, however, counsel for the Ersan claimants put the objection to JS1 on the basis that it amounted to quasi-expert evidence that was inadmissible and/or unreliable.
12.
HHJ Backhouse refused the application to debar reliance on JS1. A subsequent appeal against that decision was refused by Freedman J in a judgment handed down on 21 November 2022 ( Kerseviciene v Mide Quadri and anor and four other appeals [2022] EWHC 2951 (KB)).
13.
Further applications relating to one of the county court cases were heard by HHJ Backhouse in March 2023, leading to an order of 29 March 2023 in which the recitals recorded the following undertaking:
“AND UPON it being recorded that Ersan & Co have, through their Counsel, given an undertaking to the Court that they will not make further applications to debar the Defendants or other insurers represented by DWF LLP from relying on the witness statement of James Stevens dated 18 June 2021 containing similar fact evidence.”
14.
The current proceedings were issued on 23 October 2023. It is the defendant’s case that the claims represent, in substance, an application by Ersan to debar the defendant and/or its insurer clients from relying on JS1 (see paragraph 27 of the amended defence in these proceedings).
The pleadings
The particulars of claim
15.
As I have stated, the claims before the court are pleaded under the GDPR; they are thus concerned with the defendant’s processing of the personal data of the three claimants – the “ identified ... natural persons ” (see art 4(1) GDPR).
16.
The particulars of claim were settled by leading counsel, who had previously been instructed to act for the Ersan claimants in the earlier debarring application and appeal. The data processing complained of is that described in JS1. It is said (see paragraph 42(2) of the amended particulars of claim) that the defendant’s processing:
“... included:
- collecting the personal data;
- recording the personal data;
- storing the personal data;
- retrieving the personal data;
- consulting the personal data;
- analysing the personal data;
- disclosing and disseminating the personal data (including the analysis carried out on it) to insurers; and
- otherwise using the personal data.”
17.
At paragraphs 42-54 of the amended particulars of claim, the claimants set out the particulars of the alleged breaches of the GDPR relied on.
18.
By paragraph 42(3), it is contended that, in breach of art 5(1)(c) GDPR, the defendant processed more personal data than was necessary for the original purposes for which it was collected; it is said that the further processing of the personal data of the three claimants was excessive and not limited to that necessary:
“for the specific purposes of defending [these claims]”, which thereby “violated the data minimisation principle, as the personal data collected was not relevant or proportionate to the new purposes for which it was being processed”
It is further stated that:
“The personal data should have been adequate, relevant and limited to what was necessary for the specific purpose of defending [the claimants’ claims]. Processing the Claimants’ personal data for use in an unrelated legal matter and for broader purposes exceeded what was required for defending the original claims.”
19.
By paragraph 43 of the amended particulars of claim, the claimants complain of breaches of arts 5(1)(a), and 6 GDPR, stating that the defendant at no time sought the consent of any of the three claimants for the data processing involved in JS1.
20.
At paragraph 43(1) the claimants put their complaint as a breach of the “ Right to erasure ” under art 17 GDPR, stating that the defendant unlawfully retained and used their personal data:
“beyond the purpose for which it was collected (i.e., the [claimants’ own] claims)”
21.
At paragraph 43(2) the same complaint is made as a breach of the “ Right to restriction of processing ” under art 18 GDPR.
22.
By paragraph 44 of the amended particulars of claim, the claimants again state that they never consented to the defendant’s processing of their data in the way it was used in JS1.
23.
Paragraph 45 of the amended particulars of claim complains of a breach of art 5(1)(a) GDPR on the basis that:
“at no time did the Defendant notify any of the Three Claimants that it was proposing to carry out, that it was carrying out or that it had carried out the ... [JS1 data processing]”
24.
Relying on the preceding allegations, paragraphs 46, 47 and 48 assert that none of the processing involved in JS1 was lawful, fair or transparent.
25.
At paragraph 49 the claimants contend that:
“to the extent that the Defendant had collected personal data relating to each of the Claimants for a specified, explicit and legitimate purpose (namely defending [the claimants’ claims]), the processing of their personal data in [JS1] constituted further processing in a manner incompatible with those purposes, thereby infringing Article 5(1)(b) of the GDPR.”
26.
At paragraph 50 specific reference is made to the claims of C2 and C3, whereby it is contended that (those claims having been concluded “ years before ” JS1), pursuant to art 5(1)(e) GDPR, the defendant had no legitimate purpose in processing their personal data.
27.
By paragraph 51, the claimants further contend that, to the extent that JS1 processed their “ sensitive personal data ”, that was prohibited by art 9(1) GDPR.
28.
Paragraphs 52-54 state that no personal data was obtained directly from C1, C2, or C3, and the defendant was thus obliged, pursuant to art 14 GDPR, to provide the claimants with information as required under that provision.
29.
Pursuant to paragraphs 55 and 56, the claimants make clear that their claim is for declaratory relief and compliance orders; no compensation is sought.
30.
As the defendant has observed in its arguments at this hearing, the claimants’ pleaded claim does not allege contraventions of art 5(1)(d) GDPR (accuracy), or the data protection impact assessment (“DPIA”) provisions of art 35; it also does not make a positive case that there has been a failure to satisfy a lawful processing condition under art 6(1). Additionally, the defendant points out that the pleaded claim does not advance any wider allegations against it beyond the specific GDPR provisions relied on, and does not rely on any particular facts about the claimants, beyond the fact that they were not parties to the proceedings before HHJ Backhouse and/or that (in the cases of C2 and C3) their claims had been resolved by the time JS1 was deployed.
The defence
31.
By its amended defence, the defendant accepts that, for relevant purposes, it was a data controller. It is further accepted that it would be liable for the acts and omissions of Mr Stevens and that, in processing personal data, it was subject to the duties (and exemptions) as provided by the GDPR.
32.
The defendant admits that, in the compilation of JS1, it processed the personal data of each of the claimants, and that it did not seek the claimants’ consent for such processing. It is the defendant’s case, however, that it did not thereby act in breach of the GDPR:
“41.
...
2)
... the Defendant’s processing was necessary for the performance of a task carried out in the public interest, namely the administration of justice. It was reasonably necessary for the Defendant to draw to the attention of the relevant Courts [its] concerns .... To that end, it was reasonably necessary for the Defendant to process the Claimants’ personal data as part of the Dataset and JS1. Articles 6(1)(c) (by virtue of the Defendant’s duties to the Court) and (e) (by virtue of the furthering of the administration of justice in the public interest) of the GDPR applied.
3)
Further or alternatively, the processing of the Claimants’ personal data as part of the Dataset and JS1 was reasonably necessary for the purposes of the legitimate interests of the Insurers and DWF (in acting for the Insurers) in defending RTA claims brought by clients of Ersan. Those interests were not outweighed by any interests, rights or freedoms of the Claimants, including because (i) by bringing their RTA claims, the Claimants should reasonably have expected that the personal data of which they now complain would be used by the Defendant and put before the Courts in open proceedings, and (ii) the Claimants do not allege that they suffered any damage or distress as a result of the processing of which they complained. Article 6(1)(f) of the GDPR applied.”
33.
Although the defendant goes on to make specific rebuttals to each of the alleged breaches of the GDPR, the pleadings identify little by way of factual dispute about the processing giving rise to JS1. On the basis of the parties’ respective pleadings, the dispute in this case essentially concerns whether the facts relating to the production and deployment of JS1 gave rise to the contraventions of the GDPR rights of the three claimants as alleged within the amended particulars of claim.
34.
In this regard, the defendant denies liability in all respects; specifically, however, it contends (see paragraph 6(3) of the amended defence):
“In substance, this claim constitutes an attempt by Ersan to use the GDPR rights of the Claimants to (i) relitigate issues which were raised and/or should have been pursued but were not pursued in other proceedings… and/or (ii) collaterally attack or circumvent the outcome of those other proceedings, and/or (iii) collaterally attack or circumvent an order of HHJ Backhouse dated 29 March 2023…”
35.
It is the defendant’s case that, had these three claimants been party to the proceedings before HHJ Backhouse, referred to above, their present claims under the GDPR would undoubtedly fall to be struck out without more, on a Henderson v Henderson basis ( Henderson v Henderson (1843) 3 Hare 100). The defendant maintains that the present claim is in substance an attempt by Ersan to achieve the same ends (the undermining of the defendant’s, and its insurer clients’, ability to rely on JS1) via a different claim between different parties. Although the defendant says it has opted to pursue all of its points together at trial (rather than make a stand alone strike-out application on this basis), because – given the discrete issues raised by the pleadings – the practical difference between the hearing of an application and trial itself is not very significant, it nevertheless contends that this concern about the real purpose of the claim is pertinent to the issues raised by the applications currently before the court.
36.
In any event, on the basis of the pleaded case before the court, this matter has been listed for trial with a time estimate of two days.
The claimants’ application for specific disclosure
The application and the respective positions of the parties
37.
By their application of 7 October 2024, the claimants seek specific disclosure of documents under ten categories, a.-j. The application is supported by a witness statement from Ms Dilan Yakut, solicitor for the claimants, relying on documents exhibited thereto.
38.
The defendant resists the application, its position being set out in the statements of Mr Michael Henman, a solicitor within the defendant firm, and in the exhibits to those statements.
39.
The categories of disclosure sought, and the parties’ respective cases on each category, are summarised below.
a Communications (correspondence, meeting notes, attendance notes, etc) between the defendant and its insurer clients concerning the sharing of the claimants’ personal data .
40.
The claimants say this is clearly relevant as the central issue in the case will be whether the defendant can establish a lawful justification for the processing of their data. As for the defendant’s assertion of privilege: (i) this would be for the defendant to prove; (ii) not all documents falling within this category would necessarily be privileged; (iii) it was doubtful that communications within this category came into existence for the dominant purpose of giving/receiving legal advice; (iv) as for litigation privilege, communications with insurers falling within this category would not relate to evidence to be used in connection with anticipated proceedings involving the insurer in question/would not be for their benefit, and so would not be covered by litigation privilege; (v) in any event, privileged material could be redacted/severed from the disclosed documents under this category.
41.
For the defendants it is stated that the communications in question are privileged: (i) they are confidential communications between solicitors and their (insurer) clients for the dominant purpose of litigation; (ii) the whole basis of the claimants’ case was that their data was used for the purposes of litigation - for litigation privilege to apply it was not relevant that the communications in issue did not relate to the claimants’ own cases; (iii) equally, whether or not the insurers in question were involved in the proceedings/stood to benefit was not relevant; (iv) a qualified solicitor (Mr Henman) had carried out a proportionate check and confirmed these were privileged documents, and (v) redaction/severance would not be a proportionate course given the nature of this category of communication.
b Communications between the defendant and its insurer clients concerning the insurer clients’ permission or refusal of permission for the use of the claimants’ personal data .
42.
As for a.
c Instructions, correspondence and agreements between the defendant and DWF Forensics Limited regarding the processing of the claimants’ personal data.
43.
This request relates to a subsidiary company wholly owned by the defendant. The claimants say it is for the defendant to establish that any assertion of privilege would extend to this entity. The defendant contends that the same considerations would apply as for categories a. and b.
d Internal communications (assessments, correspondence etc) explaining the defendant’s conclusion that a data protection impact assessment (“DPIA”) was not required under art 35 GDPR .
44.
Although the defendant has said that no DPIA was carried out, Mr Henman has explained that his consideration of historic emails, and discussion with fee-earners involved at the time, make clear that the defendant carefully considered the appropriateness of the task culminating in JS1. The claimants say that such emails etc would shed light on the purpose for which data was processed, the steps taken to ensure such processing was reasonably necessary, and whether any mitigating measures (such as pseudonymisation) were considered. These, the claimants submit, are highly relevant to key issues in the case.
45.
For the defendant it is pointed out that: (i) no breach of art 35 GDPR has been alleged in these proceedings; (ii) any consideration of the exercise involved in JS1 was not within the ambit of art 35 and did not amount to a “conclusion” as to a DPIA; (iii) in any event, art 35 does not confer actionable rights on data subjects.
e Communications between the defendant and the Insurance Fraud Bureau (“IFB”) and General Medical Council (“GMC”) and “any other organisations” regarding the sharing of the claimants’ personal data .
46.
Relying on an email from the IFB to the Solicitors Regulation Authority (“SRA”) of 29 September 2021, and on suggestions that questions were raised regarding a doctor used in the county court claims, the claimants say they must be entitled to see correspondence evidencing the sharing of their personal data with other parties: that would be consistent with the overriding objective and relevant to whether consideration had been given to safeguards and other protective measures.
47.
The defendant says: (i) no such documents exist (at most, certain disclosures were made to the IFB but – as confirmed by Mr Henman – those did not include any of the claimants’ personal data); (ii) the claimants’ pleaded case raises no issues about any alleged disclosures to third parties other than to insurers and to the court; (iii) if the court was minded to consider ordering disclosure of communications with the IFB, it should first allow the IFB to be heard on the point.
f A list of all third parties with whom the claimants’ personal data was shared .
48.
As for e.
g Documents (internal records, meeting notes, correspondence etc) showing how many claims were excluded from JS1 due to lack of insurer permission .
49.
The claimants say this will have a direct bearing on whether the defendant will be able to establish it was pursuing a legitimate interest, and, absent such disclosure, the claimants will be unable to make submissions as to the inaccuracy/inappropriateness of JS1 (going to the question whether the data processing was justified/necessary); more generally, it was in accordance with the overriding objective for the claimants to have sight of documents relevant to this issue.
50.
The defendant says such disclosure would be irrelevant to any pleaded issue: the claimants’ case raised no issues as to how their data - as compared to the data of others - came to be used for JS1. In any event, such documents would attract privilege for the same reasons as set out under a.
h Documents showing how many claims were excluded despite insurers providing permission .
51.
As for g.
i Communications between the defendant and insurers in respect of C2 .
52.
The claimants say that C2, who was still a minor when his case was settled, is entitled to have access to documents which would allow him to understand why his data was retained following the disposal of his claim.
53.
The defendant says that such communications would obviously be privileged, for the same reasons as explained under a.
j The number of instances of similar fact evidence akin to JS1 served on other law firms, and the number of complaints by individuals, solicitors, organisations, and experts regarding data breach, misuse and abuse of personal data .
54.
The claimants say these documents are relevant: (i) to whether the data processing for JS1 was necessary in pursuit of a legitimate interest (or whether it was merely an attempt to impugn Ersan and served no legitimate purpose), and/or (ii) whether the defendant can establish a lawful justification.
55.
The defendant contends this request is wholly flawed: (i) it is not a request for documents; (ii) it is so poorly defined as to be scarcely intelligible; (iii) it would be grossly disproportionate; (iv) it is irrelevant to the issues to be tried and amounts to an ill-defined fishing expedition.
Relevant legal principles
56.
The rules relating to the disclosure and inspection of documents are set out within CPR 31. “ Disclosure ” means stating that a document exists or has existed (CPR 31.2); by CPR 31.6 it is provided that disclosure is standardly to be required of a party in respect of: (a) the documents on which that party relies and (b) the documents which adversely affect that party’s case or which adversely affect or support another party’s case. Pursuant to CPR 31.12, the court may make an order for specific disclosure; where such an application is made in relation to a category or class of documents, it should be carefully defined so as to be limited to that which is relevant such that the disclosing party is in no doubt as to the scope of the disclosure obligation: City of Gotha v Sotheby’s [1998] 1 WLR 114 per Aldous LJ at p 123F-H. In determining such an application, the court’s starting point will be to identify the factual issues in the case, as identified by the pleadings. By CPR 16.4(1)(a), the particulars of claim must include a concise statement of the facts on which the claimant relies; it is that document that will identify the material facts relied on in the claim. This, in turn, will inform any decision taken by the court on any application for disclosure; as was observed in Harrods Ltd v Times Newspapers Ltd and ors [2006] EWCA Civ 294 (see per Chadwick LJ (with whom the other members of the court agreed)):
“12.
... the judge was plainly correct to approach the application for further disclosure on the basis that it was essential, first, to identify the factual issues that would arise for decision at trial. Disclosure must be limited to documents relevant to those issues. And, in seeking to identify the factual issues which would arise for decision at the trial, the judge was plainly correct to analyse the pleadings. The purpose of the pleadings is to identify those factual issues which are in dispute and in relation to which evidence can properly be adduced. ...”
57.
Notwithstanding its potential relevance to the issues to be determined, however, where a document attracts legal professional privilege, it will be immune from the requirements that would otherwise compel its disclosure. Such privilege may take the form of: (1) legal advice privilege (“LAP”), which protects a confidential communication between a client and their professional legal adviser if made for the dominant purpose of seeking legal advice or related legal assistance; and/or (2) litigation privilege, which applies to communications between either a client or their legal adviser and a third party, where the dominant purpose of the communication is connected to actual, pending, or contemplated adversarial litigation.
58.
Where LAP is claimed, the principles to be applied by the court were summarised in R (Jet 2) v Civil Aviation Authority [2020] EWCA Civ 35 , [2020] 2 WLR 1215 , see in particular per Hickinbottom LJ (with whom the other members of the court agreed) at paragraphs 69 and 96 (I summarise): ( i) consideration of LAP has to be undertaken on the basis of the documents, not simply the role of the lawyer; (ii) but, where that role is qua lawyer, a broad approach is to be taken: most communications to/from the client are likely to be sent in a legal context and privileged, although a particular document may not be so; (iii) likewise, where the usual role is not qua lawyer, a document may still fall within the scope of LAP if set in a legal context; (iv) in considering whether a document is covered by LAP, the breadth of the concepts of legal advice and continuum of communications must be taken into account; (v) context will be important, but the court is unlikely to be persuaded by fine arguments as to whether a particular document falls outside legal advice, particularly as the legal and non-legal might be so intermingled that for practical purposes distinguishing/severing the two will be impossible and it can be properly said that the dominant purpose of the document as a whole is giving/seeking legal advice; (vi) where there is no such intermingling, and the legal and non-legal can be identified, the parts covered by LAP will be non-disclosable (and redactable), and the rest will be disclosable; (vii) a communication to a lawyer may be covered by LAP even if express legal advice is not sought: it is open to a client to keep his lawyer acquainted with the circumstances of a matter on the basis that the lawyer will provide legal advice.
59.
As for litigation privilege, I have been referred to summaries of the relevant principles at paragraph 11 Starbev GP Ltd v Interbrew Central European Holding BV [2013] EWHC 4038 (Comm) , and paragraph 68 Holyoake v Candy CPC [2017] EWHC 52 (QB) . Save on one point (addressed at paragraph 60 below), there is no real dispute between the parties in this regard: (1) the burden of proof is on the party claiming privilege to establish it; (2) a witness statement that asserts litigation privilege, and/or a statement of the purpose of the communication over which the privilege is claimed, will not necessarily be determinative - the court will carefully scrutinise how the claim to privilege is made out and witness statements in support, which are evidence of a fact that may be required to be independently proved, should be as specific as possible; (3) although litigation need not have begun for the privilege to apply, it must, objectively assessed, be reasonably in prospect; (4) the party claiming privilege must, however, also show that the relevant communications were for the dominant purpose of either (i) enabling legal advice to be sought or given, and/or (ii) seeking or obtaining evidence or information to be used in or in connection with such anticipated or contemplated proceedings; (5) litigation privilege arises where a client obtains advice or assistance for litigation purposes from an adviser acting in their professional capacity, whatever that capacity might be; (6) for the privilege to apply, however, communication must be either between client and advisor, or advisor and third party - communications between client and third party are not protected unless either one of them is acting as the advisor's agent; (7) litigation privilege may be lost by waiver, or disapplied where it is designed to act as a cloak for crime or fraud.
60.
In Holyoake Warby J (as he then was) also made clear that, for the purposes of establishing litigation privilege, the contemplated litigation need not be the litigation in which the claim to privilege is asserted (see Holyoake at paragraph 67(3)). The potential breadth of that principle was not, however, wholly accepted by the claimants; it was Mr Megarry’s submission that, because the privilege belongs to the client, the assertion of privilege can only be in respect of litigation contemplated by that client. Ultimately I do not consider this point determinative of the issues raised in the current proceedings but I should say that I cannot see that the claimants’ position in this regard would be consistent with the decision of the Court of Appeal in Al Sadeq v Dechert LLP [2024] EWCA Civ 28 , [2024] KB 1038 (see per Popplewell LJ (with whom the other members of the court agreed) at paragraphs 191-215).
The claimant’s application for specific disclosure – analysis and decision
61.
Considering the first two categories of disclosure sought ( a. communications between the defendant and its insurer clients concerning the sharing of the claimants’ personal data, and b. communications between the defendant and its insurer clients concerning the clients’ permission/refusal of permission for the use of the claimants’ personal data ), I am clear that the communications in question are covered by legal privilege. The fact that these communications were for the dominant purpose of litigation is inherent in the identification of the claimants’ complaints: JS1 was a witness statement prepared, and relied upon, in the course of the various county court proceedings in which the defendant was acting as the legal adviser for a number of its insurer clients; on the claimants’ own case, the communications in question would have been for the dominant purpose of obtaining evidence or information to be used in those or other (actual/anticipated) proceedings.
62.
More specifically, however, I am satisfied that such communications would inevitably be covered by LAP. In advancing the claimants’ case on relevance in relation to categories a. and b., Mr Megarry emphasised that it was considered that the documents would be likely to reveal information as to the basis on which the defendant was acting (or believed itself to be acting) in sharing and processing the data in issue. Given that the defendant was the legal adviser to the insurance companies in question, it is hard to see how communications relating to the basis on which it was acting in processing this data would have been other than for the dominant purpose of giving (or seeking) legal advice. Indeed, on the way the claimants’ application has been advanced, to the extent that the communications contained other information, it is hard to identify how it is said that that would be relevant.
63.
The same points apply to the third category of disclosure ( c. instructions, correspondence and agreements between the defendant and DWF Forensics Limited ), which relates to a subsidiary company wholly owned by the defendant. To the extent that DWF Forensics was involved in the data processing in issue, it would have been doing so as agent of the defendant and for the same purpose.
64.
The explanation of relevance for the fourth category of disclosure sought by the claimants ( d. internal communications explaining the defendant’s conclusion that a DPIA was not required ) suggests this has been misdescribed. To the extent that the claimants seek disclosure of the defendant’s conclusions as to the necessity of a DPIA under art 35 GDPR, the answer is clear: (i) there is no basis for considering that there would be any relevant documents (the defendant’s case is that it reached no conclusions as to any DPIA issues); (ii) even if there were such documents, the claimants’ claim raises no issues under art 35 so as to suggest that these might be relevant to an issue to be determined at trial; and (iii) in any event, it is hard to see how such a claim could be pursued as art 35 does not confer actionable rights on individual data subjects.
65.
Perhaps recognising these difficulties, the argument in support of this disclosure request has, however, been advanced on a somewhat different basis. Referring to the “ historic emails” and “discussions with ... fee earners ” mentioned at paragraph 12 c. of Mr Henman’s second statement, the claimants say that these would (apparently regardless of any consideration of DPIA requirements) be highly relevant. However, in thus identifying how these documents are said to be relevant, the claimants again face the obvious difficulty that the communications in issue would inevitably be the subject of legal privilege. Even if not relating to the giving of legal advice (although it is hard to see how such communications would not be for that purpose), the information in question would plainly be for the dominant purpose of the litigation in which the defendant (and, therefore, the relevant fee earners and other personnel) was involved.
66.
The fifth and sixth categories of disclosure ( e. communications between the defendant and the IFB and GMC and “any other organisations” regarding the sharing of the claimants’ personal data and f. a list of all third parties with whom the claimants’ personal data was shared ) give rise to questions of relevance. Other than complaining of the dissemination of their personal data to insurers (and, potentially, its use in the court proceedings), the claimants’ pleaded case raises no issues as to any disclosures to other parties. Mr Megarry says that such documents are brought into relevance (i) by the reference at paragraph 42(2) of the amended particulars of claim to “ otherwise using the personal data ”, and, more broadly, (ii) by the need to investigate the defendant’s purpose in processing the data, and whether it was reasonably necessary for the purpose on which the defendant relies. Yet more generally, it is said that the claimants must be entitled to see correspondence which evidences their personal data being shared with third parties; that, it is submitted, is consistent with the overriding objective and with the underlying principles of the GDPR.
67.
In considering this application for disclosure, I am bound to remind myself that I am constrained by the case the claimants have chosen to bring; I am not determining whether it might be fair (in general terms) for the claimants to know whether their data was passed on to the IFB or the GMC or some other entity (although the defendant has clearly stated it was not), but whether the documents in question might be relevant to the court’s determination at trial of the issues raised by this claim. The agenda for that trial – and thus for my consideration of this interlocutory application – is set by that which can fairly be said to arise from the pleadings (see Harrods Ltd v Times , supra). By listing this matter for a two-day trial, those involved in the prior management of this case have clearly understood the areas of factual dispute to be relatively limited. That, in my judgement, is a fair assessment of the issues raised by the pleadings. The fact that no application has been made to extend the listing would suggest that the parties share that view.
68.
Turning then to the claimants’ suggestion that this disclosure would be warranted by the unparticularised reference to “ otherwise using the personal data ”, I am clear that this does not provide any proper basis for understanding the claimants’ claim to have identified a separate line of enquiry into whether the defendant might have passed the data on to parties other than its insurer clients; that is not part of the pleaded case. A better point might arise from the defendant’s amended defence, and its positive assertion that the processing of personal data involved in JS1 was lawful pursuant to arts 6(1)(c) and 6(1)(f) GDPR. In considering whether the defendant is able to make good its contention that the JS1 data processing was lawful for these purposes, the court will need to determine whether it was “ necessary ” for compliance with the legal obligation relied on (art 6(1)(c)) or for the purposes of the legitimate interests in question (art 6(1)(f)); answering that question, I accept, will import questions of proportionality: “ necessary ” means that the processing must be proportionate to the relevant legal obligation and/or legitimate interests. That, however, does not mean that the court will be embarking upon a task unconstrained by the pleadings. In considering whether the legal obligation could have been performed, or the legitimate interests pursued, with processing of the claimants’ personal data that was less intensive or invasive, the court will not be carrying out a general inquisitorial enquiry, but will be testing the defendant’s case against that which has been identified to be in issue. Other than disclosing and disseminating the data “ to insurers ”, the claimants have not put their case as one in which it is contended that the defendant engaged in unnecessary processing to other third parties.
69.
Even if I was wrong in my understanding of the claimants’ pleaded case, however, I am satisfied that there would be no basis for ordering disclosure under these headings. Having considered the basis for the application in this regard, it is clear that it is a fishing expedition. Although there is a reference to contact with the IFB in an email from the SRA, that does not provide any basis for considering that any personal data of C1, C2 or C3 was disclosed by the defendant to the IFB. The position in this regard has been checked by Mr Henman (an officer of the court), who has confirmed that none of the claimants’ data was forwarded to the IFB. As for any disclosure to the GMC or any other entity, as Mr Megarry accepted in oral argument, no concrete basis for the application in this regard has been identified.
70.
Turning then to the seventh and eighth categories ( g. documents showing how many claims were excluded from JS1 due to lack of insurer permission , and h. documents showing how many claims were excluded despite insurers providing permission ), it is the claimants’ case that these will have a direct bearing on whether the defendant can make good its defence. As Mr Megarry explained in oral submissions: the claimants wish to argue that claims were deliberately left out of JS1, and the data processing involved was not done in an honest way, such that, even if the defendant may have had a legitimate purpose, it will not be able to demonstrate that it was reasonably necessary to process the data in the way that it did.
71.
Even if I assume that documents falling within these categories might not be subject to LAP and/or litigation privilege, I am unable to see that such disclosure goes to an issue that arises from the pleadings in this case. The amended particulars of claim make a number of contentions as to how the processing of the claimants’ data to create JS1 gave rise to breaches of the GDPR; there is, however, no allegation of dishonesty made against the defendant. The case is put on the rather more straightforward basis that, by processing the personal data of each of C1, C2, and C3, for use in claims to which they were not parties, the defendant breached various provisions of the GDPR. Accepting (as I do) that the defendant’s defence will require the court to consider whether the data processing in issue was lawful – that is, whether it was “ necessary ” for the purposes relied on, and thus proportionate – as I have already explained, I do not accept that this gives rise to an open-ended inquisition, unconstrained by the pleadings. It is thus relevant that the claimants’ claim raises no issue of comparison; that is, as to how their data - as opposed to that of other claimants – came to be used for the JS1 exercise. While I can see that this might be a point that Ersan would have wanted to raise, to counter the pleas of fundamental dishonesty in the cases before the county court (as, indeed, it did in the earlier debarring application), I am unable to see that this is disclosure going to any dispute that can properly be identified from the pleadings in the claims brought by C1, C2 or C3 in the current proceedings.
72.
The ninth category of disclosure ( i. communications between the defendant and insurers in respect of C2 ) simply identifies the fact that C2 was a minor at the time of his RTA and when his case was settled. It underscores the point that C2’s case had been compromised before the data processing involved in JS1, but raises no distinct point relevant to issues of disclosure.
73.
As for the tenth category ( j. the number of instances of similar fact evidence akin to JS1 served on other law firms and the number of complaints regarding data breach, misuse and abuse of personal data ), the basis for the application in this regard is set out in the witness statement of Ms Yakut (solicitor for the claimants), who explains that Ersan have learned that the defendant has served statements analogous to JS1 in other claims (i.e. involving claimants represented by other firms). It is suggested that information relating to this practice in other cases would enable the claimants to see whether comparative data relating to other firms was held and processed by the defendant but consciously omitted; that, it is said, would be relevant to determining whether JS1 was necessary in pursuit of a legitimate interest or was merely an attempt to impugn Ersan. Furthermore, the claimants submit that documents highlighting data protection issues faced by the defendant in other cases would be likely to have a bearing on whether it can establish a lawful justification for the data processing in question.
74.
Assuming that documents exist in this respect, I am unable to see how this could possibly be a category of disclosure relevant to the issues to be determined at trial in these proceedings. The court will be required to determine the issues raised by the parties’ respective pleadings. At the risk of repeating my earlier observations, the court will have to decide whether the processing of the personal data of C1, C2, and C3 in the creation of JS1 – to be used in proceedings involving none of the current claimants – gave rise to the alleged breaches of the GDPR. In reaching that decision, the court will have to consider whether the data processing involved in creating JS1 was necessary for (and thus, proportionate to) the purposes relied on, but it will do so on the basis of the matters identified in the pleadings. The disclosure request made under this heading is a fishing expedition, apparently designed to see what other material might be available to cast questions as to the reliability of JS1. That might be a line of enquiry relevant to county court proceedings relating to the claims of other claimants (albeit, as recorded in the recital to the order of HHJ Backhouse of 29 March 2023, Ersan has undertaken not to make further applications to debar reliance on JS1 in such proceedings), but it is not an application for specific disclosure that goes to a factual dispute that can be identified as arising from the pleadings in this matter.
75.
For all the reasons provided, the claimants’ application for specific disclosure is refused.
The defendant’s application to re-amend its defence
The application and the respective positions of the parties
76.
By its application of 28 February 2025, the defendant applies to re-amend its defence in the following terms:
“16.
As confirmed in the Defendant’s letter to Ersan of 14 July 2021, The Defendant did not disclose the Dataset or any other personal data of the Claimants relating to the Analysed Claims to anyone other than Ersan (and its relevant clients) and the Courts seized with the claims referred to in §15 above. Upon a request received from the Insurance Fraud Bureau, the Defendant disclosed certain data from or relating to the Dataset and the Analysed Claims, but that did not include any personal data of the Claimants .” (in the original application, the (re-)amendments are shown in green)
It is the defendant’s case that the re-amendment provides a more accurate account of this part of the factual context but does not impact upon the issues to be determined.
77.
The application is, however, resisted by the claimants. It is objected that the defendant’s position about the extent to which the JS1 data has been processed has been subject to some change:
“More than once, the claimants and [Ersan] have been told that data in the first Stevens WS had been shared with nobody; this was, of course, the position in the previous defence.” (claimants’ skeleton argument, paragraph 37)
The claimants further say that the defendant has failed to adequately explain:
“how it came to mis-represent the position in the initial defence and continues to refuse to disclose any documents evidencing the data that was shared to the IFB.” (claimants’ skeleton argument, paragraph 38)
78.
In oral submissions, Mr Megarry emphasised that this was an application that was being made relatively late in the proceedings and the claimants were entitled to ask for clarification as to why this had arisen at this stage (indeed, it was said that the application was premature given there were outstanding questions raised by Ersan in the correspondence).
The defendant’s application to re-amend its defence – analysis and decision
79.
I acknowledge that this is an application to amend made relatively late in the proceedings. The trial window is set for 6 May to 27 June 2025, and the application could have been made earlier than it was (it seems that the need for clarification was identified in the preparation of Mr Henman’s first statement in these proceedings, which was dated 9 January 2025). I do not, however, agree that the earlier pleading mis-represented the position (as now clarified in the proposed re-amendment) relevant to the claimants’ claims. The defendant still maintains that it did not disclose any personal data of the claimants to the IFB (or (other than its insurer clients) to other third parties); what it has clarified is that it did respond to a request from the IFB by disclosing certain data from/relating to JS1. That is a necessary clarification as otherwise the pleading would not be accurate; it does not, however, specifically go to the claims of the claimants in these proceedings.
80.
In any event, the question for me is whether – having regard to all factors relevant to the overriding objective – it would be dealing with the case justly and at proportionate cost to allow this re-amendment. The answer to that is obvious: the re-amendment gives rise to no new issues of fact or law, but simply ensures that the court is provided with an accurate statement of the defendant’s position. Achieving this by way of this re-amendment is clearly a proportionate (and appropriate) way of clarifying the defendant’s case. Refusing the defendant’s application would not assist in dealing with this case justly: to the extent the claimants consider this re-amendment raises questions as to whether the defendant has been candid in its defence of the claims, that is a matter that can be raised in cross-examination and/or submission at trial.
81.
I am satisfied that there is no proper basis for objecting to the proposed re-amendment; the defendant’s application to re-amend its defence in the form proposed is allowed.
The defendant’s application to exclude parts of the witness statement of Mr Gadd
The defendant’s application and the respective positions of the parties
82.
In its application of 28 February 2025, the defendant has also sought an order for the exclusion of parts of the witness statement of Mr Gadd (“the Gadd statement”).
83.
The Gadd statement has been served in preparation for the trial in this matter; it is dated 7 January 2025 and is some 39 pages long (albeit these include sections of other documents that have been pasted into the statement). Mr Gadd describes himself as being a solicitor at Ersan, who has conduct of this action on behalf of the three claimants. In correspondence, the defendant has questioned whether this is correct, pointing to the fact that the Law Society’s records suggest Mr Gadd is a consultant at Central Chambers Law Ltd; in oral submissions Mr Hopkins went somewhat further, contending that this might warrant a direction that Mr Gadd could not be called as a witness at trial (although it was ultimately said that this must be a matter for the court). In any event, the defendant says that the Gadd statement is inappropriate in numerous respects as, to a substantial extent, it comprises evidence that is either inadmissible or, if it is admissible, should be excluded in exercise of the court’s case management powers under CPR 3.1(2)(k) (power to exclude an issue from consideration) and/or CPR 32.1(a) (power to control evidence).
84.
Specifically, the defendant objects to paragraphs 28-33 of the Gadd statement on the basis that these contain allegations not relevant to the pleaded issues and have nothing to do with the data rights of the three claimants. Objection is made to paragraphs 35, 40, 42, and 44-48, on the basis that these amount to legal argument; and to paragraphs 49-50, 64, and 112-130 as purporting to give expert opinion evidence. The defendant also objects to paragraphs 52 and 53, as containing irrelevant speculation as to the selection of the defendant by insurers, and to paragraphs 54-63, and 65-76, which continue the attack on how cases were selected for inclusion into JS1; again, the defendant submits that this is put on a far broader basis than could be relevant to the data protection rights of the three claimants. Objection is also made to the attack on the methodology used for JS1 at paragraphs 77-101, and to the focus on communications with the SRA and the GMC at paragraphs 102-109; these are again said to be irrelevant. Paragraphs 131-143 of the Gadd statement address the argument that the claim raises issues that give rise to an estoppel given the earlier debarring application; the defendant objects to these paragraphs being included and similarly says that paragraphs 144-158 should be excluded as amounting to legal argument/submission.
85.
For the claimants it is argued that it is necessary, given the facts of this case, for the court to have evidence setting out the background of (i) the litigation in which JS1 was initially served, (ii) Ersan’s objections to JS1, and the applications made to exclude it, and (iii) the facts that indicate inadequate disclosure from the defendant. It is the claimants’ case that the background to the original RTA claims is relevant to the matters the court has to consider, and it is entirely reasonable to have a solicitor give narrative evidence about those matters based on the documents and his own knowledge. More particularly, the claimants say that details of the perceived deficiencies in JS1 are central to their contention that it was fatally flawed and so did not serve a legitimate purpose.
86.
As for the objection that the Gadd statement includes matters of expert opinion and/or legal submission, it is accepted that the statement uses phrases such as ‘ it is submitted ’ and expresses comments on the evidence but, in view of the overriding objective, it is contended that this should not require the evidence to be excluded or restricted, not least as “ The nature of the evidence and Mr Gadd’s lack of direct perception ” (claimants’ skeleton argument, paragraph 34 a.) inevitably meant some evidence in relation to the background of the case was expressed as commentary based on documents. Furthermore, although the Gadd statement expressed views about the reliability of JS1, it was acknowledged that Mr Gadd was not an expert; he was not seeking to give expert opinion evidence, but was making fact-based observations expressed as commentary (albeit, in oral argument, Mr Megarry accepted that there had been no direction permitting expert evidence of the kind expressly referenced in the Gadd statement).
87.
The claimants further point out that, insofar as the court is being asked to exercise its power to strike out any part of the witness statement, this is a sanction of last resort, and whether or not it is appropriate in a given case depends on whether that would be proportionate.
The legal framework
88.
By CPR 3.1(2)(k), the court is provided with the case management power to exclude an issue from consideration. As the notes to this provision in the White Book observe, this is a power usually left for exercise by the court when conducting a pre-trial review. That said, by CPR 1.4, the court has an obligation to further the overriding objective by actively case managing cases; although it can be tempting to leave issues relating to the scope of the evidence to the trial judge, that is unlikely to be compatible with the duty on the court to deal with cases justly and at proportionate cost. Moreover, by CPR 32.1, the court is empowered to control the evidence to be given at trial, a power that it is plainly envisaged will be exercised not merely at the trial itself but at a prior stage, such that directions may be given as to:
“32.1
(1) ... (a) the issues on which it requires evidence; (b) the nature of the evidence which it requires to decide those issues; and (c) the way in which the evidence is to be placed before the court”
with a further power to exclude evidence that would otherwise be admissible: CPR 32.1(2).
89.
In addressing an application to excise passages from witness statements in advance of the trial in the case of BGC Brokers LP v Tradition (UK) Ltd Martin Brokers Group Ltd v Bell [2019] EWHC 3588 (QB) , I observed that:
“46.
... The starting point is that a party is entitled to know from the pleaded case the allegations to which they have to respond and the preparatory steps for trial will be premised on that pleaded case. Disclosure and inspection will thus be conducted by reference to the pleaded issues and the parties’ witness statements will be prepared to address the issues arising from the pleadings.”
It is not suggested that I should do other than adopt the same starting point when addressing the defendant’s application in the current proceedings.
90.
In the BGC Brokers case, I set out the approach to be adopted when considering the exclusion of evidence, as follows:
“49.
Where an issue arises as to the admissibility of particular evidence, a two-stage test is to be applied. First, is the evidence potentially probative of one or more issues in the litigation? If so, it is legally admissible, but the court will then go on to consider, secondly, whether there are good grounds for why it should decline to admit that evidence in the exercise of its case management powers; see JP Morgan Chase Bank & Others v Springwell Navigation Corporation [2005] EWCA Civ 1602 at paragraph 67, applying the principles laid down by Lord Bingham in O’Brien v Chief Constable of South Wales Police [2005] 2 AC 254 , [2005] 2 WLR 1038 .
50.
At the second stage, Lord Bingham suggested that three matters might affect the way in which a judge should exercise their discretion in this regard; see as summarised by the Court of Appeal in JP Morgan v Springwell :
‘(i) That the new evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues that are collateral to the issues to be decided. (ii) That it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice. (iii) That consideration must be given to the burden which its admission would lay on the resisting party.’
51.
In relation to the third of these considerations, Lord Bingham specifically identified:
‘The burden in time, cost and personnel resources …of giving disclosure, the lengthening of the trial, with the increased cost and stress inevitably involved, the potential prejudice to witnesses called upon to recall matters long closed or thought to be closed, the loss of documentation, the fading of recollections …In deciding whether evidence in a given case should be admitted, the judge's overriding purpose will be to promote the ends of justice, but the judge must also bear in mind that justice requires not only that the right answer be given but also that it be achieved by a trial process that is fair to all parties.’”
91.
In support of its application in the present case, the defendant further relies on the observations of Lord Phillips in O’Brien , emphasising the court’s duty to give primacy to the overriding objective (see paragraph 54), and continuing:
“56.
… when considering whether to admit evidence, or permit cross-examination, on matters that are collateral to the central issues, the judge will have regard to the need for proportionality and expedition. He will consider whether the evidence in question is likely to be relatively uncontroversial, or whether its admission is likely to create side issues which will unbalance the trial and make it harder to see the wood from the trees…”
92.
There is, however, a need for caution when determining these questions at an interlocutory stage; as Mann J warned in Wilkinson v West Coast Capital [2005] EWHC 1606 (Ch):
“5.
… desirable though the power to control evidence obviously is, particular care must be taken when it is sought to exercise the power before a trial. ... In my view, I should only strike out the parts of the witness statements which I am currently considering if it is quite plain to me that, no matter how the proceedings look at trial, the evidence will never appear to be either relevant or, if relevant, will never be sufficiently helpful to make it right to allow the party in question to adduce it…”
93.
Moreover, in JD Wetherspoon v Harris and others [2013] EWHC 1088 (Ch) , at paragraphs 40-42, it was allowed that: (i) a witness of fact may sometimes give opinion evidence as part of his or her account of admissible factual evidence in order to provide a full and coherent explanation and account; and (ii) the rules as to witness statements are not rigid states, and it is conceivable that they may properly be relaxed in order to achieve the overriding objective of dealing with cases justly.
The defendant’s application to exclude parts of the witness statement of Mr Gadd – analysis and decision
94.
Turning then to the application made in relation to the Gadd statement, I note the defendant’s contention that Mr Gadd should be held not to be an appropriate witness – the question whether he is in fact a solicitor at Ersan having not been answered – but it seems to me that this is a point that can be addressed at trial. If there are issues relating to Mr Gadd’s status, these might go to the credibility of his evidence but these are plainly not matters I can determine at this stage. Otherwise, the defendant’s objections can be seen to fall under three main headings: (i) legal argument; (ii) irrelevant allegations; (iii) expert opinion evidence. In addressing the questions that arise in each instance, there is a degree of overlap with my earlier consideration of the claimants’ application for specific disclosure.
95.
First considering the question whether parts of the Gadd statement should be excluded as amounting to legal argument rather than evidence, I note that Mr Gadd comments on what are said to be various failures of disclosure on the part of the defendant (see paragraphs 34-48), seeking to make observations as to what inferences might be drawn from these alleged failings. In large part, Mr Gadd’s contentions in these paragraphs essentially set out the arguments deployed in support of the claimants’ application for specific disclosure. Given my ruling on that application, (save in relation to paragraphs 46-47), I am unable to see that these paragraphs are likely to assist the court at trial.
96.
Even if I was wrong in that ruling, however, I cannot see that the content of most of the paragraphs to which objection is taken by the defendant can properly be characterised as evidence, as opposed to legal submission. Paragraphs 35, 40, 42, 44-45, and 48 are all plainly submissions as to whether, as a matter of law, the defendant adhered to the requirements of the GDPR. Excluding these paragraphs gives rise to no prejudice to the claimants: to the extent that these address relevant questions of law in this case, these are matters that can be appropriately dealt with in legal submission. I would not, however, include paragraphs 46 and 47 within this exclusion: it seems to me that these do address factual matters relating to C2 and, although including some comment by way of submission, the observations that Mr Gadd seeks to make in this regard do not warrant excluding this evidence.
97.
At paragraphs 131-143, Mr Gadd addresses what are characterised as estoppel points relating to the earlier rulings on the debarring application and the undertaking recorded in the order of HHJ Backhouse of 29 March 2023. While it may be open to question as to how far the court will be assisted by this section of the Gadd statement (which largely amounts to commentary on various documents and to argument on the defendant’s case), I can accept that this seeks to address part of the procedural history that has been put in issue, and I would not exclude this evidence, which seeks to provide the claimants’ explanation and account by way of response to the defendant’s case.
98.
I do not, however, consider that the same latitude can be afforded in respect of paragraphs 144-158 of the Gadd statement. This section of the statement sets out what can only be said to be legal submissions in support of the claimants’ case (albeit that these go far wider than the pleaded case in many respects). These paragraphs cannot properly be characterised as mere observation or as providing a full and coherent explanation and account of the claimants’ position; by ruling that this section of the Gadd statement is to be excised, I am not excluding evidence and the claimants are put to no prejudice: to the extent that the legal submissions that Mr Gadd seeks to deploy in these paragraphs are relevant to the issues to be determined at trial, these are matters that can be appropriately addressed in legal argument.
99.
The bulk of the defendant’s objections to the Gadd statement relate to the question of relevance. At paragraphs 28-33 a number of serious allegations are made against the defendant, including the suggestion that the defendant’s use of JS1:
“31.
... appears to be part of a calculated strategy by insurers and DWF to undermine the fairness of court proceedings. This serves a dual purpose: pursuing costs orders against Claimant representatives, who can typically meet them, rather than Claimants who are often unable to do so, and improperly influencing the Court’s perception of the honesty of the Claimants. In addition, concerns have bene raised that the allegations and actions employed by DWF are a deliberate and cynical tactics [sic] to circumvent the consequences of the Qualified One-Way Costs Shifting rules.”
100.
The same can be said in relation to paragraphs 52-63 of the Gadd statement, in which Mr Gadd speculates as to why insurers might have instructed the defendant and/or why the defendant selected particular cases to be included in the JS1 data set. The allegation that underlies this section of the Gadd statement is that:
“57.
... the data presented is partial and has been selectively chosen by the parties with a vested interest in the outcome of this litigation. ...” (“this litigation” in this context refers to the various county court proceedings, not the present case)
101.
Similar allegations are made (albeit with different emphases) within paragraphs 65-76 and 77-101 of the Gadd statement.
102.
These are not allegations that are raised by the claimants’ pleaded case. In argument, it has been suggested that they will, nevertheless, be relevant to the inquiry that the court will need to undertake when determining issues of necessity and proportionality. For the reasons I have already provided (in relation to the claimants’ application for specific disclosure), I do not, however, accept that the court’s consideration of these issues under art 6(1)(c) and/or art 6(1)(f) will give rise to an entirely open investigation, unconstrained by the pleadings. The matters raised are also plainly controversial. Should Mr Gadd be permitted to introduce these allegations, the defendant has made clear that it will wish to contest this evidence; that would plainly open up the scope of the trial, which would extend far beyond the two day listing that has previously been accepted as appropriate to address the issues arising in this case. In truth, these are allegations that raise specific and very different issues to those identified by the claimants’ pleaded case. They may be matters relevant to the weight to be given to JS1 in the various county court proceedings, but they do not address issues that arise from the pleadings in the present case. Had the claimants wished to broaden the scope of the court’s inquiry in these proceedings, the appropriate course would have been to raise these matters in the amended particulars of claim and/or by way of formal reply to the defendant’s defence. Seeking to introduce serious allegations of this nature by means of witness evidence will serve only to distort rather than assist the court’s focus on those matters it is required to determine. In the words of Lord Phillips (paragraph 56, O’Brien ), the admission of this evidence would create side issues which would unbalance the trial and make it harder to see the wood from the trees.
103.
Paragraphs 102-109 of the Gadd statement also give rise to questions of relevance, albeit these reference the communications between Ersan and the SRA, rather than the conduct of the defendant in compiling JS1. Even allowing for a degree of latitude in setting out the factual context to the claims, I am unable to see that this section of the Gadd statement has any relevance to the issues to be determined at trial.
104.
For the reasons provided, I therefore direct that the following paragraphs of the Gadd statement are to be excluded: 28-33, 52-63, 65, 68-76, 77-101, and 102-109. Contrary to the defendant’s case, I can accept that paragraphs 66-67 (which relate to the specific case of C1) are potentially relevant and should not be excluded at this stage.
105.
Turning then to the objection that the Gadd statement impermissibly seeks to introduce expert opinion evidence, I note that, at paragraphs 49-50, Mr Gadd expresses his views as to the conclusions to be drawn from what he describes as a “ notable spike ” in claims in 2019. I am unable to see that this is evidence that goes to an issue identified from the claimants’ pleaded case but, in any event, it is clear that it is opinion evidence, expressing Mr Gadd’s view that:
“50.
... By cherry-picking cases and excluding thousands of Ersan files, DWF may have manipulated the dataset to serve its narrative”
106.
At paragraphs 64, and 112-130 of the Gadd statement, the attempt to introduce expert opinion evidence is even more clear. In these paragraphs, Mr Gadd introduces and cites the opinions of/arising from “ expert statistician Marie Oldfield ”, “ the expertise of Dr Aisha Ali, a specialist in psychiatric injuries ”, and “ numerous studies .. [f]or example a 2020 study from Croatia, which synthesizes much of the academic literature .. .”.
107.
As Mr Megarry accepted in oral argument, there has been no direction allowing for expert opinion evidence to be given in these proceedings. That, it seems to me, is for good reason: such evidence would not be relevant to any of the issues arising from the pleadings in this case. In any event, the court cannot be assisted by an attempt to introduce expert opinion evidence through the non-expert testimony of Mr Gadd. Accordingly, I allow the defendant’s application to exclude these paragraphs from the Gadd statement.
108.
The defendant’s application in relation to the Gadd statement is thus allowed in part. Paragraphs 28-33, 35, 40, 42, 44-45, 48, 49-50, 52-63, 64, 65, 68-76, 77-101, 102-109, 112-130, and 144-158 are to be excluded from the Gadd statement, pursuant to the case management powers provided by CPR 32.1(2) and/or the inherent jurisdiction of the court.
Disposal
109.
For the reasons provided:
(1)
I dismiss the claimants’ application for specific disclosure.
(2)
I grant the defendant’s application to re-amend the defence.
(3)
I partly grant the defendant’s application to exclude parts of the Gadd statement: allowing that application in respect of paragraphs 28-33, 35, 40, 42, 44-45, 48, 49-50, 52-63, 64, 65, 68-76, 77-101, 102-109, 112-130, and 144-158 of the Gadd statement.
110.
This judgment having been circulated to the parties and their legal representatives in draft form in advance of handing down, the parties are directed to file an agreed draft minute of order (or, in the absence of agreement, a draft minute of order that highlights any points in dispute) at least two working days before the date fixed for the handing down of judgment. Should either party seek to make any further applications consequential upon the decision herein, such application, together with concise written submissions in support, should also be filed and served at least two working days before the date of hand down .