Full case report

Smith v Lloyds TSB Bank Plc

Reference [2005] EWHC 246 (Ch)
Court Chancery Division

Judge Laddie J

Date of Judgment 23 Feb 2005


Summary

Data protection – ‘Data’ – s.1(1) Data Protection Act 1998 – Information previously processed – Information capable of conversion to digital format – ‘Personal data’ – Information about company – s.7(9) Data Protection Act 1998


Facts

The Claimant Smith was the controlling shareholder of a company involved in a development project funded by loans from the Defendant (“Lloyds”). Both the company’s borrowings and Smith’s personal borrowings were secured on the development and by a mortgage on Smith’s home. The company became unable to repay the loan and went into liquidation. Lloyds petitioned to have Smith made bankrupt. Smith asserted that Lloyds had entered into an oral agreement with him to the effect that Lloyds would make available to the company long-term finance in a substantial amount. He claimed that documentation held by Lloyds would prove that contention and sought an order for its disclosure under s.7(9) of the Data Protection Act 1998. It was not in dispute that Lloyds did not hold any information about Smith on computer at the time of his request.


Issue

(1) Whether ‘data’ in s.1(1) of the DPA ought to be construed to include information once but no longer held on computer;
(2) Whether ‘data’ in s.1(1) of the DPA ought to be construed to include information in documents documents which could rapidly be turned into a digital format;
(3) Whether the information sought was ‘personal data’.


Held

(1) The question of whether information was data had to be answered at the time of the request, target=_parent> Johnson v Medical Defence Union [2004] EWHC 347 applied. At that time Lloyds did not hold any information about Smith wholly or partly on automatic equipment.

(2) The reference to and definition of a “relevant filing system” in s.1(1) would be meaningless if any documents capable of being converted into a digital format were to be treated as if they were in a computer database. Smith was not entitled to disclosure of such material under the Act.
(3) The documents related to the company rather than Smith. As such they did not contain personal data, target=_parent>Durant v Financial Services Authority [2003] EWCA Civ 1746 applied.


Comment

The Claimant faced the significant obstacle of both of the relevant cases, Johnson and Durant, being clearly against him. The argument that information was “once processed, always processed” conflicted with Laddie J’s own decision in Johnson that the question of processing is to be answered at the time of the request. The second argument, that any pile of documents could easily be scanned and indexed, was, to use Laddie J’s words, “more ambitious”. If accepted it would have had the startling effect of making the DPA applicable to every single paper document (or at least every document held by those owning scanners). As to being ‘personal data’, the documents sought related to loans to a company and so were never likely to pass the Durant test of being biographically significant. As leave to appeal was granted on the questions of ‘data’ and ‘personal data’, the Court of Appeal are likely to have the chance to consider Johnson, and to reconsider the controversial decision in Durant.


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Instructing Solicitors

De Cruz Solicitors for Smith; CMS Cameron McKenna for Lloyds.


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