Court of Appeal dismisses 'wasteful' data protection claim against DWF

The Court of Appeal has dismissed data protection claims brought against national firm DWF Law, criticising the way the pleaded case shifted repeatedly — including during the appeal itself.

Giving the lead judgment in Kul & Ors v DWF Law LLP, Lord Justice Warby said the claims had 'fluctuated and mutated' over time and had changed at least once in the course of the appeal.

How the claim arose

Each of the appellants had brought a personal injury claim that DWF defended. The firm used information about them in other personal injury litigation to support an argument that the claims were fundamentally dishonest.

A group of 127 individuals then alleged that DWF had infringed their data protection rights. Of those, 124 claims were abandoned and discontinued before trial — a detail that says a good deal about how the action was assembled.

At trial, Mrs Justice Eady dismissed the remaining claims, finding that the firm's processing of the appellants' personal data had been lawful, fair and compliant.

The argument that arrived too late

On appeal, the appellants argued that the judge should have found the processing disproportionate and in breach of the UK GDPR. They also sought declarations that any similar future processing by DWF would be unlawful.

Warby LJ held that the future processing point was a new, unpleaded case advanced for the first time at the appeal hearing, and one that was legally and factually inconsistent with the position previously taken.

'The appellants need the court's permission and relief from sanctions to change their position at this late stage,' he said. 'Assuming the court has jurisdiction to allow this, I can see no good reason for doing so. It would be prejudicial to DWF, and to the interests of justice more generally. The merits of the new case do not outweigh that prejudice.'

No application had been made to amend the statement of case or the grounds of appeal. No draft re-amended particulars of claim were produced, and no draft amended grounds were provided. The 'about turn', the judge said, was unfair to DWF regardless of any costs consequences, and no good reason had been offered for leaving the point so late.

Warby LJ stopped short of finding the appeal an abuse of process, but added: 'I do however conclude that the appeal has been wasteful of time and resources in a way that is, fortunately, highly unusual, and without any good reason being apparent.'

What defendant firms should take from it

The judgment is useful ammunition for firms facing volume data protection claims spun out of underlying litigation. Two points stand out.

The first is procedural discipline. Courts have limited patience for group claims whose theory of loss changes as the evidence thins, and a case that reaches the Court of Appeal on a ground never pleaded is unlikely to survive contact with it.

The second is substantive. Using data obtained in one claim to test the honesty of another is a routine and necessary part of insurance defence work. Eady J's finding that the processing was lawful, fair and compliant — now undisturbed — gives defendant practitioners a clear reference point when the same allegation is made again.

Our view

The attrition rate here is the story. A group of 127 claimants became three by trial and none by the end of the appeal. That pattern is familiar in low-value data protection litigation, where the economics have long depended on defendants settling early rather than on the claims being individually strong. Judgments that name the cost of that approach, as this one does, are the most effective discouragement available.