Breach of confidence – Data Protection Acts 1984 and 1998 – Misfeasance in public office- Targeted Malice – Reckless indifference
In 1999 and 2000 articles were published in two newspapers that revealed confidential and sensitive personal information about Lord Ashcroft contained in documents leaked from the Foreign Office and from the Second Defendant. This was an application to re-amend the particulars of claim in his action for damages for breach of confidence and privacy in order to add breaches of the 1984 and 1998 DPA. He also sought to add the FCO press officer who authenticated the leaked documents to the press as a Defendant and applied for damages for the tort of misfeasance in public office and aggravated damages.
Whether the Data Protection Act 1984 Act provided a private law remedy in damages for the leak of the documents in breach of the data protection principles? (2) Whether the failure to hold a leak inquiry had or to conduct an adequate enquiry found a claim for breach of any common law or equitable right of confidence, or a claim for a breach of duty under either the 1984 or 1998 Acts? (3) Whether the authentication of leaked documents by the FCO official constitute targeted malice for the purposes of the tort of misfeasance in public office.
The only private law right to damages conferred by the 1984 Act arose under s.23 and the amendment would be allowed only to the extent that it sought damages under that section for the disclosure of documents. (2) An allegation that a leak inquiry had not been held, or had been conducted inadequately, could not found a claim for breach of any common law or equitable right of confidence, nor a claim for a breach of duty under either the 1984 or 1998 Acts. (3) The authentication of leaked documents could not be argued to constitute targeted malice for the purposes of the tort of misfeasance in public office because there was insufficient evidence to infer that the purpose of authentication was to injure Lord Ashcroft. However, and with some hesitation, the court did accept that the act of authenticating the documents might have been an illegal one carried out with reckless indifference to the probability of injury.
This was one of a series of hearings involving Lord Ashcroft and government departments. The trial settled on the second day. See the report for 5 June 2002.