Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd& Ors, Court of Appeal - Civil Division, March 03, 2017, [2017] EWCA Civ 121,[2017] WLR(D) 158

Issuing Organization:Civil Division
Actores:Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd& Ors
Resolution Date:March 03, 2017
 
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Neutral Citation Number: [2017] EWCA Civ 121

Case No: A2/2015/1599, 1520 &1524

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION

His Honour Judge Seymour QC

(sitting as a High Court Judge)

HQ15X00982

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 3 March 2017

Before :

LORD JUSTICE LEWISON

LORD JUSTICE LLOYD JONES

and

LORD JUSTICE McCOMBE

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Between :

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE QUEEN'S BENCH DIVISION, OXFORD DISTRICT REGISTRY

His Honour Judge Harris QC

(sitting as a High Court Judge)

30X90052

Between :

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A2/2015/1520 & 1524

Mr Philip Coppel QC & Ms Ruchi Parekh (instructed by Taylor Wessing LLP) for the Appellant

Mr Robin Hopkins (instructed by Stitt & Co) for the 7 Respondents

A2/2015/1524

Rhodri Williams QC (instructed by Blake Morgan Solicitors) for the Appellant

Mr Timothy Pitt-Payne QC (instructed by Simmons & Simmons LLP) for the Respondent

Mr Julian Milford & Mr Christopher Knight (instructed by Information Commissioner's Office) for the Intervener

Hearing dates : 29/30 November and 1 December 2016

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Lord Justice Lewison:

The issues

  1. These two appeals, which were heard together, raise issues under the Data Protection Act 1998 (``the DPA''). Shortly stated, the main issues are:

    i) The scope of the definition of ``personal data'' in section 1 of the DPA;

    ii) Who is a ``data controller'';

    iii) What constitutes a subject access request (a ``SAR'');

    iv) Whether the duty to comply with a SAR is limited to a duty to carry out a reasonable and proportionate search;

    v) The extent of the exemption from data protection duties for data processed only for the purposes of an individual's personal, family, or household affairs;

    vi) The extent of the court's discretion under section 7 (9) of the DPA to order or to decline to order a data controller to comply with a SAR.

  2. We were aware, at the hearing, that another constitution of this court had recently heard an appeal in Dawson-Damer v Taylor Wessing, which we understood raised issues about the exercise of discretion which might have a bearing on the outcome of these appeals. We therefore informed the parties that we would delay giving judgment in these appeals until judgment had been given in Dawson-Damer and they had had an opportunity to make written submissions about it. Judgment in Dawson-Damer was handed down on 16 February 2017 ([2017] EWCA Civ 74). We received written submissions on 21 February 2017 and further submissions on 23 and 24 February 2017.

  3. There are other, more case specific, issues raised by the appeals which I will come to in due course. I begin with the basic facts.

    Ittihadieh v 5-11 Cheyne Gardens RTM Company Ltd

  4. Mr Alireza Ittihadieh owns flat 5/6 in a residential building at 5-11 Cheyne Gardens where he has been living for 20 years. The building is a block of 10 Victorian houses which were converted into 15 interlinked flats in the 1960s. Mr Ittihadieh is also the beneficiary of a trust which indirectly holds a 999-year lease in two other flats in the building, as well as a reversionary interest in another flat. 5-11 Cheyne Gardens RTM Company Ltd (``the RTM company'') is a right-to-manage company of certain parts of the building. The second to fifth respondents are residents in various flats in the building, as well as being directors of the RTM company. HMR London Ltd, the sixth respondent, is a company that is the company secretary to the RTM company and the seventh respondent is a director of the sixth respondent.

  5. Until 2010 the Cadogan Estate owned the freehold of the building and the head leaseholder was August Building Ltd. In October 2010 a company owned by Mr Ittihadieh bought the head lease. In 2010 the non-corporate owners of flats in the building, but excluding Mr Ittihadieh and his partner, established and became members of the RTM company under the Commonhold and Leasehold Reform Act 2002. Four residents (the second to fifth respondents) were appointed directors of the RTM company and the fourth was elected chairman. Later that year Mr Ittihadieh, his partner and his companies became members of the RTM company. However, Mr Ittihadieh's attempt to get representation on the RTM company by having his solicitor appointed a director was blocked. Later attempts by Mr Ittihadieh himself to be appointed a director so as to enable him to raise his concerns about the running of the building were also blocked.

  6. During the course of the disputes that have been going on between Mr Ittihadieh and his fellow residents, Mr Ittihadieh became concerned that his fellow residents had been swapping, retaining and otherwise using personal information about him. He formed the view that they had gone beyond what was permissible and had been keeping a specific file on him. There was such a file known as ``the Alireza file''.

  7. In consequence he made a SAR on 3 November 2014 contained in a letter from his solicitors, Taylor Wessing. The letter was addressed to the directors of the RTM company and it stated that it was also being sent to each of the other respondents to this appeal. In addition to containing the SAR the letter made a number of other complaints. It said, for instance, that Mr Ittihadieh intended to bring proceedings against the RTM company ``its directors and company secretary, both in their capacity as directors and company secretary and personally'' for discrimination, harassment and victimisation. The SAR began:

    ``Our client is aware that the RTM Company holds personal information about him. He also believes that the RTM Company holds information about our client which is, amongst other things, defamatory.

    We hereby request, pursuant to Section 7 (1) of [the DPA], that you provide him with all information and documents which our client is entitled to receive under Section 7 (1) (a) - (d). We demand that you confirm to us in writing whether the RTM Company or anyone acting on its behalf is processing personal data (including emails) about our client. For the avoidance of doubt, we expect this to include personal data processed by [the respondents] personally acting in their capacity as directors or company secretary of the RTM Company or otherwise in the RTM Company's business.

    For example, please provide a copy of the information constituting any personal data of which our client is the data subject, including, without limitation, a copy of all personal data which may be held in the form of handwritten notes, meeting and other attendance notes, letters, emails, SMS text messages and word-processed documents. It is likely that some data may be held in back-up or archive form or may have been deleted but is still recoverable. This can be identified through the use of search tools, and should be considered part of your search criteria.''

  8. The letter also said:

    ``The fee of £10 was sent to Mr Peter Crawford of Stitt & Co. We are awaiting confirmation that he will be forwarding this to you.''

  9. It ended by saying:

    ``Our client will in due course be issuing a claim against the RTM Company, its directors and company secretary, both in their capacity as directors or company secretary and personally, for the discrimination against, harassment and victimisation of our client, as set out above.''

  10. Stitt & Co's reply of 25 November 2014 said that any personal information which had been requested ``will amount also to personal information about those other individuals which they are unlikely to consent to disclose.'' The reply also said that the request was ``a fishing expedition and an abuse of process. It will involve the RTM Company in wholly unnecessary costs which will have to be passed on through the service charge provisions in the lease...''

  11. Under cover of a letter of 12 December Stitt & Co disclosed a number of documents (some 400 in all) and said that some of the documents had been redacted in order not to disclose personal information about other individuals who had not consented to disclosure. One of the disclosed documents referred to an ``Alireza file''. On 19 December Taylor Wessing asked for disclosure of the ``Alireza file;'' but on 22 December Stitt & Co replied to the effect that they would not comment on the documents withheld and that the RTM Company, its directors and managing agents had fully complied with their obligations.

  12. On 2 March 2015 Mr Ittihadieh issued a claim form in the Queen's Bench Division, seeking an injunction and damages. A few days later he made an application for an order under section 7 (9) of the DPA requiring the respondents to provide witness statements giving the information required under section 7.

  13. HHJ Seymour QC heard the application on 5 May 2015. He decided that the SAR was directed only to the RTM company and not to the other respondents; that none of the other respondents was a ``data controller'' for the purposes of the DPA, and that if any of them had processed data in a personal capacity they were entitled to an exemption in respect of that data on the ground that the data were processed only for the purposes of an individual's personal, family, or household affairs. As far as the RTM company was concerned, the judge said that no attempt had been made to show him that the 400 pages of disclosed documents failed to provide all the information to which Mr Ittihadieh was entitled, and that to make an order would be disproportionate. He therefore refused to exercise his discretion under section 7 (9).

  14. That left the ``Alireza file''. The judge had looked at the file over the lunch adjournment with the agreement of both parties. He refused to make an order relating to that file for reasons which he said he had given at the resumption of the afternoon session. There is a complaint of procedural irregularity amounting to injustice about the judge's treatment of this issue, to which...

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