Background
The three claimants had brought claims for personal injury following road traffic accidents, instructing Ersan and Co Solicitors. These were amongst several hundred similar personal injury claims brought by that firm. In June 2021, DWF served similar fact evidence in respect of personal injury claims on behalf of 18 insurers in support of the contention made by in the Ersan claims that the court should make findings of fundamental dishonesty. That evidence included reference to the three claimants in these proceedings and their data.
Contents of CNF's and medical reports
DWF and their clients examined the data they held regarding claims submitted from Ersan & Co. That evidence included that, in a total of 340 CNF's received, 96% contained an allegation that the Claimant had suffered from psychological symptoms as a result of the accident. 68% of the Claimants went on to be seen by a psychological expert with a report served. Many were from the same expert, who recorded an outcome of a recognised psychological condition in all 209 reports he produced, with 76% of the prognosis periods being for two years duration or beyond.
Litigation
A number of the Ersan claimants applied to debar the use of the evidence we had gathered in their Personal Injury claims. The application was made on the basis that the evidence was quasi expert evidence, that it was inadmissible and even if it was admissible, it was unreliable. Arguments relating to breaches of data protection rights were not pursued. The application was dismissed by HHJ Backhouse.
The decision was then appealed. Freedman J accepted that the defendant insurers in the County Court proceedings were entitled to run a case relying on similar fact evidence, seeking to derive patterns from a much larger body of evidence. No data protection points were run before the judge, however. The appeal was dismissed; the judgment stating that it would be for the trial judge to decide what to make of the evidence.
DWF then received 142 Data Subject Access Requests from Ersan clients between 13th and 28th October 2021. Ersan & Co submitted a complaint, on behalf of in excess of 100 claimants, to the Information Commissioner's Office (ICO). In January 2022 the ICO responded stating that there was no evidence that had been identified to it that demonstrated that DWF had breached the requirements of data protection legislation.
In September 2023, Ersan sent letters before action to DWF on behalf a large number of potential claims (including the current claimants), which complained of a serious data breach. High Court proceedings were commenced, originally on behalf 137 claimants, but 134 claimants discontinued leaving the three claimants pursuing a claim that DWF had breached a number of their GDPR obligations.
The GDPR claim
The claimants were not seeking monetary compensation; they were seeking a large number of remedies including declarations that DWF had infringed several of articles of the General Data Protection Regulations, and that DWF should stop processing their data.
DWF defended the case on the basis that they had not misused the data or breached the Claimants' data rights and, more broadly, taking the position that this was a cynical claim by the three claimants driven by the claimant solicitors to prevent the use of the similar fact evidence in the defence of hundreds of claims.
Outcome
Clyde & Co represented DWF in the High Court trial which took place over two days on the 4th and 5th June.
The case was dismissed.
Mrs Justice Eady found DWF undertook the data processing “for a specified, explicit and legitimate purpose, carried out in performance of the defendant’s professional (and regulatory) obligations to its clients, for the public interest task of ensuring the proper administration of justice, and for the purpose of the legitimate interests of the defendant’s clients”. She also found that the processing was necessary proportionate and fair, going on to say "I do not consider that the interests or fundamental freedoms of the claimants took precedence over the legitimate interest of the defendant’s insurer clients in putting the data … before the court to support pleas of fundamental dishonesty in the County Court proceedings.'
What this means
Lorraine Carolan, DWFs Global Head of Fraud, stated:
"We welcome the judgment and the dismissal of these claims. The judgment reinforces the legality of DWF's strategy, finding our actions in this matter to be for the purposes of the legitimate interests of our clients and both necessary and proportionate. This was an important case, for the 18 insurers who sit behind the claims giving rise to these proceedings, and for the industry more broadly. The judgment will support efforts to challenge claims which raise suspicions of exaggeration and fraud. It is a clear win for insurers and their policyholders and should serve as a cautionary note to those contemplating bringing, or facilitating, such claims."
**Update – stop press**
We have just heard that Ersans & Co have submitted an appeal so this is not the end of the matter. DWF will take a robust view on this further appeal which will be to the Court of Appeal: watch this space!
