Thomas Cole v Marlborough College

The claimant brought a data protection claim seeking a declaration that the defendant had unlawfully failed to comply with a subject access request dated 26 September 2022 and an order requiring compliance. The dispute for this hearing was a discrete procedural point: whether documents that the defendant says it was entitled to withhold under paragraph 16 of Schedule 2 to the Data Protection Act 2018 may nevertheless be disclosed for inspection in the disclosure process.

The judge held that the defendant was entitled to withhold from inspection, in whole or in part, documents containing the claimant's personal data which the defendant asserted it was or would have been entitled to withhold under paragraph 16 Schedule 2 DPA 2018. The decision followed the principle in X -v- The Transcription Agency LLP and related authorities that a party challenging the withholding of personal data should not be given sight of the very material whose withholding is in issue, and that the court may inspect material in private if necessary. The judge also rejected the claimant's suggestion that confidentiality clubs or restricted disclosure to the claimant's lawyers would resolve the difficulty, emphasising practical and fairness objections including difficulties for unrepresented litigants. The ruling was limited to the inspection phase; issues at trial (including whether a closed hearing or special advocate is needed) were left to the trial judge.

The claimant, a former pupil, alleged the defendant school had failed to comply fully with a subject access request made on 26 September 2022. The school had provided a substantive response on 25 November 2022 but redacted or withheld certain documents on the basis that they contained the personal data of other identified individuals and so fell within the exemption in paragraph 16 of Schedule 2 to the Data Protection Act 2018.

The claimant sought a declaration of unlawful action and an order requiring compliance with the request. No damages were sought. The Master directed that a discrete issue about the scope of inspection in the disclosure exercise be determined by a High Court judge: whether the defendant could withhold from inspection documents which it asserted were exempt under paragraph 16 Schedule 2 DPA 2018.

Issues framed by the court included:

• whether a claimant challenging the withholding of personal data may be given inspection of the disputed documents during disclosure and trial;
• the relevance of authority (including X -v- The Transcription Agency LLP, Browning, and Lin) that supports inspection by the court in private but not disclosure to the claimant; and
• whether confidentiality clubs or restricted access to claimant's lawyers could be a practicable alternative.

The judge concluded that the defendant was entitled to withhold from inspection documents it asserted were exempt under paragraph 16, endorsing the approach in X that it would defeat the purpose of the legislation to give a challenger sight of the very material that the hearing is designed to decide. The court accepted an implied power to inspect material in private and to carry out review in the absence of the claimant and his representatives where necessary. The judge rejected proposals for confidentiality clubs on practical and fairness grounds, including their inapplicability to unrepresented litigants and the risks of lawyers knowing material that their clients do not. The conclusion was expressly confined to the inspection phase; how the trial judge should manage trial issues (including closed procedures or special advocates) was left for the trial.

The judge ordered that costs of this discrete hearing follow the event and directed the claimant to pay the defendant's costs of the hearing.

The court held that the defendant is entitled to withhold from inspection, in whole or in part, documents containing the claimant's personal data which the defendant asserts it was or would have been entitled to withhold under paragraph 16 of Schedule 2 to the Data Protection Act 2018. The reasoning followed authority that a challenger should not be given sight of the very material whose withholding is in issue and that the court may inspect such material in private; confidentiality clubs were rejected as an adequate solution for the inspection phase. The ruling is limited to the inspection phase and does not determine how the trial judge should resolve evidential or closed hearing issues at trial. Costs were ordered against the claimant for this hearing.