Sofola v Lloyds TSB Bank plc
Reference:  EWHC 1335 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 27 Jun 2005
Summary: Defamation - Slander - Qualified privilege - ss.13 and 14 Data Protection Act 1998 - Civil Procedure - CPR Part 3.4 - CPR Part 24 - CPR Part 52(3)(6)
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Instructing Solicitors: Claimant in person; Cameron McKenna for the Defendant
This was an appeal against a decision of Master Tennant, of whose reasons there was no record, to strike out S’s claims for slander and under ss. 13 & 14 of the Data Protection Act 1998 (claims for compensation and an order for relief respectively). S had brought these claims in relation to a visit to a bank where a photocopied driving license was suspected to be a forgery when an erroneous note on S’s account warned staff of previous fraud by S. The police were called but no action was taken. S requested the bank remove the erroneous note and a later note suggesting S had tried to withdraw money using the driving license, which it failed to do. Mitting J gave permission to appeal only on the slander point.
Whether (i) the slander claim be struck out as there was no reasonable prospect of of S defeating the defence of qualified privilege and making out a case on malice; (ii) the court had the jurisdiction to reopen S’s application for permission to appeal the DPA claims under CPR Part 52.
Allowing the appeal in part,
(i) The slander claim should be allowed to proceed, certainly as far as disclosure and exchange of witness statements. There was nothing to contradict S’s account of the facts and nothing which indicated why the bank had called the police.
(ii) This case was exceptional and S’s application for permission to appeal the DPA points should be reopened. There was no record of the Master’s reasons why the DPA claims should be struck out and Mitting J. had not given reasons why they were bound to fail. Tugendhat J. accepted that the bank’s non-compliance with the deletion request gave rise to an arguable claim under s.13. This matter had not been addressed properly by Mitting J, which was a compelling reason to allow the appeal within CPR Part 52(3)(6).
A part slander, part Data Protection claim was allowed to proceed by Tugendhat J. in exceptional circumstances, after it had been struck out by a Master and an application for permission to appeal dismissed by a second High Court Judge. The case is interesting for the recognition of potential data protection remedies where a conventional defamation claim might fail either through want of publication to a third party or a likely qualified privilege defence.