Mark Dowding v The Character Group Plc

Unless orders requiring payment of earlier costs orders may be made as a condition of continuing litigation where the defaulting party has failed to comply and there is no effective alternative enforcement method. The court must consider all the circumstances, including access to justice, the party’s means, proportionality, and alternative enforcement. A party cannot rely on impecuniosity substantially caused by spending available funds on other litigation.

A data subject access request is concerned with personal data, not documents, and may properly be refused where the statutory discretion is engaged by an abusive, repetitive or collateral request with little or no legitimate value. Issues conclusively determined in earlier proceedings cannot ordinarily be relitigated in fresh proceedings.

The claimant brought High Court proceedings against his former employer and three individuals arising from his dismissal. Following earlier strike-out and summary-judgment orders, the claimant was ordered to pay substantial costs. His applications for permission to appeal against the material costs orders were refused.

The claimant applied for permission to amend his pleadings. The defendant applied for an unless order requiring payment of the outstanding judgment debt and further costs, failing which the proceedings would be struck out or stayed. The claimant relied on alleged impecuniosity, pending fraud proceedings, access to justice, and data subject access claims. The central issues were whether enforcement should be made a condition of continuing the claim and whether the remaining data claims had a realistic prospect of success.

1. Unless order. The outstanding costs orders ought to be complied with. The normal consequence of non-compliance is a sanction preventing continuation of the litigation, ordinarily by an unless order. The court must nevertheless consider all the circumstances, including Article 6 access to justice, the availability of alternative enforcement, proportionality, the circumstances in which the costs orders were made, and the defaulting party’s evidence of means.
2. Access to justice did not prevent the order. The claimant had sufficient pension resources when the costs orders were made and had continued drawing substantial sums. His evidence did not establish that only a materially smaller net sum was available. Even if his available resources were insufficient, that position had substantially resulted from expenditure on living costs and other litigation while making no payment towards the ordered costs. Alternative enforcement against the property was inadequate because it would be delayed and would leave a substantial shortfall.
3. The alleged fraud proceedings provided no sufficient reason to stay or refuse enforcement. They did not directly undermine the earlier findings on which the orders rested, and the new material was not central or necessary to those rulings. The unless order therefore required payment of the judgment debt, interest and the further costs ordered in the present application. The proceedings were to be struck out without further order on default, with the amendment application stayed pending payment. The claimant’s adjournment, costs and set-aside applications were refused.
4. Relitigation and individual defendants. Matters already raised and determined by the Employment Tribunal could not be revived in the High Court proceedings. Any challenge to the Tribunal’s findings belonged by way of appeal. Findings binding on the company could, in the circumstances, also bind its officers and employees acting as the company’s instruments. The claims against two individual defendants were consequently removed, and the remaining claims against the other individual defendant were struck out as inadequately founded and largely duplicative.
5. Data subject access claims. A subject access request seeks personal data, not documents. Mere mention of a person’s name does not necessarily constitute that person’s personal data. The court accepted that the defendant had conducted a reasonable search and supplied the relevant material. The repeated and expanding requests were principally attempts to revisit the disciplinary and dismissal process, had little or no real value, and were abusive. There was no realistic prospect of establishing a breach or obtaining wider relief, and summary judgment was granted.

The judgment records that the claimant’s applications for permission to appeal against material costs orders made on 18 July 2024 were refused by the Court of Appeal. The present court then granted the unless order and stayed the amendment application pending compliance.