Aven & Ors v Orbis Business Intelligence Ltd

A late amendment will generally be refused where it requires an adjournment and the delay is unexplained, inexcusable, and causes disproportionate prejudice to the opposing party, the public and the administration of justice. A defendant who denies alleged inaccuracy must comply with CPR 16.5 by stating the reasons for the denial and any different version of events relied upon. A bare denial does not give adequate notice of a positive case that data are factually accurate. A defence under paragraph 7 of Schedule 1 Part II of the Data Protection Act 1998 must be pleaded with the necessary factual elements, including that the data accurately recorded information obtained from a data subject or third party.

This was a pre-trial review of claims under the Data Protection Act 1998 concerning personal data contained in a memorandum prepared by Orbis Business Intelligence Ltd. The claimants alleged that the data were inaccurate and sought compensation, declarations and corrective orders.

Orbis applied shortly before trial to amend its defence to plead that the data were factually accurate and, alternatively, that its records fell within paragraph 7 of Schedule 1 Part II of the Act. The claimants opposed the amendment and sought related consequential relief. The central issue was whether the proposed amendments should be permitted without disrupting the imminent trial.

1. The application to amend the defence to plead the literal or factual accuracy of the data was withdrawn and permission was refused in substance. The existing defence did not sufficiently plead a positive case of factual accuracy.

2. Under CPR 16.5, a defendant denying an allegation must state the reasons for the denial and, where a different version of events is relied upon, that version. A bare denial of inaccuracy may imply accuracy but does not identify the factual case needed to meet the denial at trial.

3. The court applied the principles summarised in Quah v Goldman Sachs International [2015] EWHC 759 (Comm). Trial dates should be maintained unless there is good reason to interfere. The proposed amendment would require an adjournment, and the delay was unexplained and inexcusable. The resulting prejudice to the claimants, the public and the administration of justice outweighed any prejudice to Orbis.

4. The court rejected reliance on the policy against false vindication discussed in Mackenzie v Business Magazines UK Ltd and Basham v Gregory. The proposed evidence did not amount to a substantive assertion that the impugned propositions were factually true, and refusal would not improperly muzzle the defence.

5. The defence under paragraph 7 of Schedule 1 Part II of the Data Protection Act 1998 had not been adequately pleaded. Permission was granted for a narrower amendment stating that the defendant had accurately recorded information obtained from a third party, subject to identifying the third party or parties. Mr Steele’s witness statement was also to be amended to remove post-publication material irrelevant to the reasonableness of the defendant’s state of mind or conduct at the relevant time.

Not stated in the judgment.