‘Since last year, Warren has proved a thorn in the side of those bringing claims arising out of external cyber-attacks – appearing, at least, to bar such Claimants from relying on the torts of negligence and misuse of private information (MPI), as well as breach of confidence. That appearance was confirmed to be reality by Saini J in Graeme Smith & ors v TalkTalk Telecom Group plc [2022] EWHC 1311 (QB). Avid readers of Panopticon will observe that it was Saini J who also decided Warren, thus confirming the position in Smith (not the South African cricketer), in the face of attempts by the Claimants initially to suggest that Warren was wrongly decided; diluted subsequently to seek to distinguish it on the facts. Saini J’s confirmation of the position post-Warren (and explaining that had given consideration to the case of Swinney v Chief Constable of Northumbria Police Force [1997] QB 464), is important, as it makes the law clear, following HHJ Pearce’s decision in Collins & Ors v Ticketmaster UK Limited [2022] Costs LR 123. In Collins, the Court had not decided the point, but did permit an amendment to plead MPI in a data breach case despite Warren – although “could not say that the claim went beyond that which was arguable”. HHJ Pearce permitted the amendment in Collins where the claimants had argued that Warren could be distinguished and did not apply to cases where the defendant had taken a deliberate decision to conduct its business in a manner that did not comply with the relevant industry standard – as opposed to “pure” omission cases. The clarity now provided by Saini J is welcome, given the importance of the feasibility of MPI claims in this field to claimants potentially being able to recover ATE premia (the conventional wisdom being that they are irrecoverable in DPA/GDPR claims).’

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Panopticon, 30th May 2022

Source: panopticonblog.com