Ezsias v Welsh Ministers

At the permission stage, an arguable challenge to the fairness of a hearing may justify permission, including a complaint that the judge considered a substituted bundle which the appellant had not seen. Permission may also be granted for arguable questions concerning the scope of subject access under the Data Protection Act 1998, the effect of Directive 95/46/EC, and the proportionality of searches for personal data. Granting permission does not indicate that the grounds will succeed. The court may refuse grounds having no reasonable prospect of success while allowing more substantial procedural and legal issues to proceed.

The appellant sought permission to appeal a High Court order made by HHJ Hickinbottom on 18 December 2007. The High Court declared limited breaches of the respondent’s obligations under the Data Protection Act 1998 for failure to disclose all disclosable personal data within 40 days, dismissed the wider claim for a declaration, and ordered indemnity costs after 29 June 2007.

Permission had been refused on paper by Buxton LJ. On renewal, the appellant relied on alleged procedural unfairness, including an unseen substituted bundle, and challenged the High Court’s approach to personal data, subject access, the proportionality of searches, and the possible effect of Directive 95/46/EC and Durant v the Financial Services Authority [2003] EWCA Civ 1746. The respondent did not attend. The central question was whether these matters warranted permission to appeal.

1. Disposition. The renewed application was granted in part. Permission to appeal was granted on grounds 2(d) to (k), and refused on all other grounds. The appeal was to be listed before a court of three and confined to one day.
2. Procedural complaints. Complaints concerning outstanding applications and the transfer of the case from a High Court judge were unarguable because the case had changed shape through case management. A judge’s robust expression of views at an earlier case conference did not, without more, establish bias or apparent bias. The judge below had dealt adequately with that complaint.
3. Bundle and fair hearing. The complaint concerning the substituted bundle had greater force. The first-instance judge had recognised that the original bundle was inadequate and directed preparation of an agreed replacement. The appellant said that no agreement was reached and that he never saw the bundle ultimately placed before the judge. If established, that could amount to an irregularity and denial of a fair hearing. It therefore warranted permission, without any finding that the alleged denial had occurred or affected the outcome.
4. Data protection issues. The court accepted that the proposed challenges to the scope of personal data, the Directive-consistent construction of the Data Protection Act 1998, and limitations based on reasonable and proportionate searches merited reconsideration. The judge noted that Durant had already expressed itself on the law and that the appellant might face difficulty showing that it could be affected. Nevertheless, those issues could proceed to a full court. The email and attendance note relied upon by the appellant illustrated the factual questions but were not finally determined.
5. Postscript. Because related employment proceedings had concluded and the practical importance of the appeal might lie principally in costs and implementation, the court urged the parties to consider mediation. That was an exhortation, not a determination of the merits.

• Court of Appeal (Civil Division)—On a renewed application after paper refusal by Buxton LJ, permission was granted on grounds 2(d) to (k) and refused on the remaining grounds: [2008] EWCA Civ 874.
• High Court of Justice, Cardiff District Registry—HHJ Hickinbottom made a limited declaration of breaches of the respondent’s data-protection obligations, dismissed the wider declaration claim, and ordered indemnity costs after 29 June 2007.