Lee McLoughlin v Chief Constable Of Kent Police

A data protection claim may be an abuse of process where it seeks to re-litigate an issue which arose, or could have arisen, in criminal proceedings or earlier judicial review proceedings. The court must adopt a broad, merits-based assessment of the public and private interests and all the circumstances. A collateral challenge to the safety of a conviction may remain abusive even though the civil proceedings cannot directly quash the conviction.

For accuracy purposes, personal data is inaccurate if it is incorrect or misleading as to a matter of fact under Data Protection Act 2018, section 205(1). The natural and ordinary meaning of the data may be assessed without treating its inclusion in a witness statement as altering that meaning.

The claimant had pleaded guilty to possessing indecent images of children after police evidence referred to use of a computer and a Facebook account. He later brought a claim under the Data Protection Act 2018, alleging that part of a police witness statement was inaccurate and seeking damages and injunctive relief.

The defendant applied to strike out the claim or obtain summary judgment on the grounds that it was abusive re-litigation and had no reasonable prospect of success. The County Court dismissed the application and directed the claim to trial. The defendant appealed on both grounds.

1. Appeal allowed on the abuse ground. The claim was an attempt to re-litigate an issue which arose, or could have arisen, in the criminal proceedings, and also sought to revisit the earlier judicial review. The fact that the civil claim could not directly quash the convictions did not prevent it being a collateral attack on their safety.
2. The court applied the broad, merits-based approach to abuse of process. Relevant considerations included the public and private interests and all the circumstances. The claimant could have clarified during the criminal proceedings, including by a basis of plea, that he accepted possession but denied simultaneous Facebook activity. The later distinction between possession and an allegedly aggravating manner of possession was artificial and did not avoid the abuse.
3. The exceptional Jameel form of abuse, concerning litigation not worth pursuing, is not confined to defamation claims and can apply in data protection proceedings. It was unnecessary to decide that issue here because the claim was abusive as re-litigation.
4. The second ground failed. Under section 205(1) of the Data Protection Act 2018, personal data is inaccurate if it is incorrect or misleading as to any matter of fact. The County Court judge was entitled to find that the police statement arguably conveyed that searches or downloads occurred while the claimant was using Facebook, and that the claimant therefore had a reasonable prospect of proving inaccuracy and obtaining a remedy.
5. The natural and ordinary meaning of the statement was not altered merely because it appeared in a witness statement prepared for criminal proceedings. Questions concerning witness immunity and related remedial issues were left unresolved. The claim was abusive and would proceed no further.

• High Court (King's Bench Division): appeal allowed on the re-litigation ground; the finding on arguable inaccuracy was upheld, but the claim was dismissed as abusive.
• Canterbury County Court: HHJ Parker dismissed the defendant’s strike-out and summary judgment application and directed the claim to proceed to trial.