Robin Simon Graham Makin (formerly known as X) v The Transcription Agency LLP & Anor

The claimant sought personal data by subject access requests under the Data Protection Act 2018 and the UK GDPR. The defendants relied on the statutory judicial exemption (para 14 of Part 2 of Schedule 2 to the Data Protection Act 2018) to refuse disclosure. The court upheld the defendants' reliance on that exemption, held that it had power to conduct a closed hearing to determine the applicability of the exemption and concluded that the entirety of the withheld material fell within the exemption.

On costs, applying CPR 44 and established authorities on indemnity costs (including the Excelsior and Three Rivers principles), the judge concluded that the claimant had pursued and conducted the litigation in a manner that took the case "out of the norm" by advancing wide-ranging, unfounded and aggressive allegations (including repeated attacks on counsel, the defendants and the Crown Legal Department). For those reasons the claimant was ordered to pay the defendants' costs on the indemnity basis and to make specified interim payments on account.

Background and parties

• The claimant applied for personal data from the first defendant (a court transcription services supplier under a Framework Agreement) and the second defendant (a High Court Master and Costs Judge). Both defendants refused to supply the data, relying on the judicial exemption in para 14 of Part 2 of Schedule 2 to the Data Protection Act 2018.
• The claimant's substantive challenge was dismissed by the court in an earlier judgment ([2023] EWHC 1092 (KB)). This judgment deals with costs.

Nature of the application

• The claimant sought relief for alleged wrongful refusal to disclose personal data in response to subject access requests under the Data Protection Act 2018 and the UK GDPR. The costs hearing considered whether costs should follow the event and whether they should be assessed on the standard or indemnity basis, and whether interim payments on account should be ordered.

Issues framed by the court

• Whether the judicial exemption applied to the withheld material.
• Whether the court had power to hold closed hearings to determine applicability of the exemption.
• Whether the defendants had complied with the statutory time limit for responding to the SARs.
• Whether the claimant's conduct of the litigation justified an order for indemnity costs and interim payments on account.

Court's reasoning and conclusions

• On the substantive data protection issues (determined in the main judgment), the court found no legal bar to withholding the claimant's personal data under the judicial exemption, that closed proceedings were permissible to determine the exemption, and that all withheld material fell within the exemption. The claimant also failed to prove that the second defendant had responded outside the one-month statutory period.
• On costs, the court applied CPR 44 and relevant authorities. The claimant repeatedly pursued unfounded allegations (including assertions about insurance, confidentiality of the Framework Agreement, and improper conduct by the second defendant and Government lawyers). The judge held that those actions were "out of the norm" under the test for indemnity costs and amounted to aggressive, wide-ranging and unsubstantiated allegations that justified indemnity costs against the claimant in respect of both defendants.
• The court rejected submissions that the second defendant was not indemnified by the Crown and regarded any contest on that point as a matter for detailed assessment; it ordered interim payments on account to minimise further satellite litigation.

Relief ordered

• The claimant was ordered to pay the defendants' costs on the indemnity basis.
• Interim payments on account were ordered: 90% of each defendant's budgeted costs and 50% of incurred costs, with specific sums set out in the order for each defendant.

The claim is dismissed as set out in the main judgment. The court held that the defendants validly relied on the judicial exemption in para 14 of Part 2 of Schedule 2 to the Data Protection Act 2018; the court had power to hold a closed hearing; the withheld material fell within the exemption; the claimant failed to prove delay in response to the SAR. On costs, the claimant's conduct was "out of the norm" and indemnity costs were ordered for both defendants, together with specified interim payments on account.

Proceedings followed a three-day trial decided in the main judgment [2023] EWHC 1092 (KB). This judgment determines costs arising from that trial and records the dismissal of the claimant's substantive claim in the main judgment.