Candy v Holyoake & Ors (No 2)

Procedural non-compliance does not automatically justify striking out a claim. The court must assess what is just and proportionate, having regard to the seriousness of the breach, the merits, the importance of the claim, available alternative sanctions and the practical consequences of allowing the case to continue.

Claims in privacy or confidence must identify the information relied on and distinguish the nature or quality of the information from the circumstances said to create a duty of confidence or a reasonable expectation of privacy. An injunction must identify with sufficient certainty what the defendant may or may not disclose. A civil conspiracy claim requires a clear allegation of financial loss. Where deficiencies are remediable, an unless order may be preferable to immediate dismissal.

The claimant brought claims in breach of confidence, misuse of private information and data protection concerning a recording made during a private occasion, seeking injunctions, delivery up, destruction and disclosure of recipients. Following an earlier order requiring a more particularised Part 18 response, the claimant served a response which the defendants said was non-compliant.

The defendants sought strike-out under CPR 3.4(2)(a) and (c), or alternatively an unless order. The claimant sought permission to amend the privacy and confidence claims and to add conspiracy causes of action. The central issues were whether the response complied with the order, whether the pleadings disclosed reasonable grounds, whether the proposed amendments were sufficiently clear, and what procedural consequence was proportionate.

1. Disposition. The Second Response failed to comply with the order of 2 March 2017. It was struck out. The claim itself was not struck out. An unless order required the claimant to serve compliant amended or re-amended statements of case and seek permission for the amendments, failing which the Particulars of Claim would be struck out and judgment entered for the defendants.
2. Under CPR 3.4(2)(a)
3. Privacy and confidence claims must state the information sought to be protected, its nature or character, and the matters relied on to establish either confidentiality or a reasonable expectation of privacy. The nature of the information is distinct from the circumstances said to impose a duty of confidence. The pleading must also distinguish privacy issues from confidence issues. The pleaded claims were muddled but sufficiently arguable to proceed if properly reformulated.
4. The proposed broader claims concerning deleted or unrecorded information were refused. Their scope was vague, they were advanced too late, and an injunction could not be framed or policed with the required certainty. The proposed conspiracy amendments were likewise refused in their existing form. A civil conspiracy claim requires a clear and distinct allegation of pecuniary loss; allegations of substantial loss, damage or serious harm were insufficiently specific.
5. The applications were therefore allowed only to the extent of striking out the non-compliant response, refusing the proposed amendments and making the unless order. The claimant could make a properly formulated fresh application. Costs and the precise form of order were left for further determination.