President Donald J Trump v Orbis Business Intelligence Limited

Where limitation has expired, an amendment adding a claim is permitted only if it arises from the same or substantially the same facts already in issue. Different periods of data processing, different statutory duties and new allegations of dissemination ordinarily constitute new facts. A claim form cannot be reinterpreted by later particulars to add a new cause of action where the inconsistency resulted from an intentional change of case rather than an obvious clerical error.

Under the UK GDPR, compensation requires damage caused by the infringement. The legislation does not provide nominal or vindicatory damages for a bare infringement. A restriction order requires current processing capable of restriction, and storage or processing for litigation purposes is outside its practical scope.

The claimant brought proceedings concerning the defendant’s preparation, dissemination and retention of two memoranda from the so-called Steele Dossier. The claim form relied on the UK GDPR and the Data Protection Act 2018. The later particulars also pleaded a claim under the Data Protection Act 1998, alleging pre-25 May 2018 processing, and sought compensation, erasure and restriction of processing.

The claimant applied to amend the claim form to include the 1998 Act claim. The defendant opposed the amendment on limitation and procedural grounds, and applied to strike out the claim or obtain summary judgment. The central issues were whether the proposed amendment added a new cause of action, whether it arose from the same or substantially the same facts, and whether the surviving UK GDPR claim had any viable remedy.

1. Amendment application. The proposed Data Protection Act 1998 claim was a new cause of action. It concerned a different statutory regime and processing before 25 May 2018, whereas the existing claim concerned processing thereafter.
2. The six-year limitation period applied to the data protection claim. The one-year period under section 4A of the Limitation Act 1980 applied to defamation and related claims, not data protection claims.
3. The court applied the four-stage test in Mullaley & Co Ltd v Martlet Homes Ltd: whether limitation had arguably expired, whether a new cause of action was added, whether it arose from the same or substantially the same facts, and whether permission should be granted. The third question was answered no. The pre-2018 dissemination allegations, the fairness issue arising from lack of notice, and the reputational harm allegations required investigation of facts outside the existing post-2018 retention claim.
4. The principle in Evans v Cig Mon Cymru did not apply. That principle concerned correction of an obvious clerical or administrative error. Here, the difference between the claim form and particulars resulted from deliberate decisions made at different times, after further correspondence.
5. The amendment was therefore refused. Even if discretion arose, it would have been refused because substantial parts were out of time, the delay was unexplained, the proposed claim sought to vindicate reputation, and amendment would deprive the defendant of an accrued limitation defence.
6. Surviving claim. The claim for compensation failed. After removal of the pre-2018 and dissemination allegations, only retention and storage from 25 May 2018 remained. No pleaded or evidential basis connected that storage with distress or other damage. Article 82 of the UK GDPR requires damage caused by the infringement; it does not permit nominal or vindicatory damages for a bare contravention. Lloyd v Google was applied.
7. The claims for erasure and restriction of processing also had no real prospect of success. Erasure would have no utility while the memoranda remained publicly available. Article 18 did not assist because the only identified post-2018 processing was storage or processing for the purpose of defending litigation.
8. The defendant obtained summary judgment under CPR 24.2 on the claim as a whole. The identified parts of the particulars were also struck out under CPR 3.4(2)(a).