Yesim Kul & Ors v DWF Law LLP

Specific disclosure must be confined to documents relevant to factual issues arising from the pleadings. A party cannot use disclosure to investigate unpleaded allegations, compare its treatment with other cases, or pursue a fishing expedition. Where the opposing party relies on lawful processing under the GDPR, necessity imports proportionality, but the court’s assessment remains constrained by the pleaded case.

The court may control evidence before trial. It may exclude material that is irrelevant, legal submission, inadmissible expert opinion, or likely to create disproportionate collateral issues. Caution is required before excising witness evidence, but the power may be exercised where it is clear that the material cannot assist at trial.

The claimants brought proceedings under the GDPR concerning the defendant law firm’s processing of their personal data, including health data, in a witness statement and dataset used in unrelated road traffic accident litigation. No compensation was claimed.

The claimants sought specific disclosure in ten categories. The defendant applied to re-amend its defence and to exclude parts of a solicitor’s witness statement as irrelevant, legal argument, or expert opinion. The central interlocutory issues were whether the requested documents were relevant to the pleaded GDPR issues, whether they were privileged, and whether the challenged evidence should be admitted or excluded before trial.

1. Specific disclosure. The claimants’ application was dismissed. Under CPR 31, disclosure is directed to documents relevant to factual issues identified by the pleadings. Categories of documents must be carefully defined. The court applied City of Gotha v Sotheby’s and Harrods Ltd v Times Newspapers Ltd in treating the pleaded case as the starting point.
2. Communications between the defendant, its insurer clients and its subsidiary concerning the processing were protected by legal professional privilege. The communications concerned legal advice or information obtained for actual or contemplated litigation. The defendant therefore was not required to disclose them.
3. The requests concerning a DPIA, third-party disclosures, selection of claims for the dataset, comparative material, and complaints were either irrelevant to the pleaded issues or amounted to a fishing expedition. Although necessity under arts 6(1)(c) and 6(1)(f) GDPR imports proportionality, the court was not required to conduct an open-ended inquiry into unpleaded matters.
4. Re-amendment. The defendant was permitted to clarify that it had disclosed certain dataset-related information to the Insurance Fraud Bureau, but not the claimants’ personal data. The amendment introduced no new issue and accurately stated the defendant’s position.
5. Witness evidence. The defendant’s application was partly allowed. Applying the approach in BGC Brokers LP v Tradition (UK) Ltd, evidence is first assessed for potential probative value. The court then considers whether exclusion is justified by collateral distraction, unfair prejudice, or disproportionate burden, as explained in JP Morgan Chase Bank v Springwell Navigation Corporation and O’Brien v Chief Constable of South Wales Police.
6. Parts of the witness statement containing legal submissions, unpleaded allegations, irrelevant attacks on the dataset, and unlicensed expert opinion were excluded under CPR 32.1(2) and the inherent jurisdiction. The court applied the caution in Wilkinson v West Coast Capital, but concluded that the identified passages could not assist at trial. The defendant’s application was otherwise refused.

The specific disclosure application was dismissed, the defence was re-amended, and the witness statement was partly excised.

Not stated in the judgment.