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Kenneth John Baillie Prentice against Chief Constable of Police Scotland (Sheriff Court Civil) [2025] SCLAN 32 (30 April 2025)
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[2025] SCLAN 32
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SHERIFFDOM OF SOUTH STRATHCLYDE DUMFRIES AND GALLOWAY AT
LANARK
[2025] SC LAN 32
LAN-B158-23
JUDGMENT OF SHERIFF ANTHONY MCGLENNAN
in the cause
KENNETH JOHN BAILLIE PRENTICE
Pursuer
against
CHIEF CONSTABLE OF POLICE SCOTLAND
Defender
Pursuer: Party
Defender: Cartney
Airdrie, 30 April 2025
The sheriff, having resumed consideration of the summary application;
Preface
[1]
This summary application seeks three orders. By its first crave, declarator that the
defender has failed to comply with its statutory obligations "under section 45(1) and (2)"
to fully and properly respond to the subject access requests made by the pursuer or his
agent on 17 November 2021, 22 February 2022, 31 July 2023 and 11 September 2023. The
legislation is not specified by the crave, but reading the balance of the application there
is more than reasonable inference that the sections referred to are of those of the Data
Protection Act 2018.
2
[2]
The second crave seeks an order in terms of section 167(2) of the Data Protection
Act 2018. That order to require the defender to comply in full with its obligations under
sections 45(1) and (2) of the Act, in relation to the aforementioned subject access requests.
[3]
In his the third crave, made in terms of section 169 of the 2018 Act, the pursuer
seeks an award of compensation of £5,000.00 from the defender for "damage and distress"
suffered as a result of the defender's failure to respond to the said subject access requests.
[4]
My judgment addresses the debate that took place upon preliminary pleas insisted
upon by the defender relative to the application. These are her first and second pleas-in-law.
They relate to the relevancy and specification of the pleadings in respect of all three craves.
It also addresses the issue of the competency of the crave for declarator.
The application
[5]
The record of pleadings encompasses 38 pages. An addendum to the defender's
fourth answer and what is designed as a response by the pursuer, account for 28 pages of
that total.
The overarching positions
The pursuer's case
[6]
The background to the raising of the application is the involvement of Police
Scotland with the pursuer, his firearms license, and his firearms. More specifically the
actions of Police Scotland in 2021 related to their concerns as to the suitability of the
pursuer to hold a firearms license, culminating in the revocation of his license and the
seizure of his firearms. The pursuer later successfully appealed against that revocation
at the sheriff court at Lanark. Subsequently data subject access requests were made by
3
the pursuer (or made on his behalf by his then solicitors) of the defender. These sought
the personal data of the pursuer processed by the defender in relation to various actions
taken by Police Scotland with regard to the pursuer's firearms and firearms license. The
pursuer maintains these requests were either not responded to at all, or were inadequately
responded to. Exemptions were claimed by the defender which were not properly available
to her. These failings amounted to breaches of the defender's obligations to the pursuer
in terms of section 45 of the Data Protection Act 2018. The court should make a declarator
in that regard. The court should also order compliance with the requests as per its power
at section 167 of the Act. The effect of the breaches was that the pursuer was placed at a
disadvantage in his appeal against revocation of his firearms license, the natural course of
justice was thus interfered with. He was also caused financial detriment, frustration, anxiety
and stress. Compensation should be awarded in terms of section 169 of the Act.
The defender's case
[7]
The defender refutes the assertion that she failed to comply with her obligations in
terms of the 2018 Act. In terms of the subject access requests averred upon, these either, in
one instance, did not constitute a data subject request, or were responded to in compliance
with the Act. When responding the defender relied appropriately upon available
exemptions provided for by the Act.
Condescendence and answers
Condescendence two and its answer
[8]
Condescendence two avers that a subject access request was made of the defender
on 17 November 2021. The averments address the nature of the request as follows:
4
"...it contained requests for the Defender to provide personal data held by and processed
by it relating to the Pursuer". The request was not responded to. A "follow up email" was
sent on 6 December 2021. This attracted an email response from the defender stating that
the request had been sent to her legal services department, but "no substantive reply was
ever received...".
[9]
In answer the defender challenges that a subject access request was made on
17 November 2021. Rather, it is averred, all that was forwarded on that date was an email
seeking information and documentation. A subject access request was forwarded on
21 February 20222 and responded to on 21 March 2022. The averments in this second
answer call upon the pursuer to specify the dates and recipients of the subject access
requests identified in his second condescendence.
Condescendence three and its answer
[10]
The pursuer's third article avers that a further subject access request was made of
the defender on 22 February 2022. It requested personal data held by the defender in;
the pursuer's firearms licence file; the Police Scotland's database and record system; the
Police National Computer; and the Police National Database. It also requested; personal
data held in relation to Police Scotland's attendance at the pursuer's property on 1 October
2021; the personal data held which led to Police Scotland seeking to remove the pursuer's
shotguns on that date; and the personal data contained in any documentation which
named or identified the pursuer in relation to the said attendance at the pursuer's home.
In addition it requested the personal data contained in any documentation which named
or identified the pursuer in a warrant application placed before a sheriff on 4 October 2021.
Lastly it sought; any personal data held containing information "in regard to public safety
5
concern(s) relating to the Pursuer as a lawful licenses gun holder"; and that contained "in
relation to Carty's solicitors 1st December 2022 to 10th April 2023". The averments continue
that the request was responded to by the defender, by letter, but that in doing so the
defender failed to provide all of the data requested. Indeed in large part the data was not
supplied. The defender relied upon exemptions set out at sections 45(4)(e), section 45(6),
and schedule 2 part 2 section 7 of the 2018 Act, absent of any explanation of the basis of their
application to the request made. The pursuer avers his belief that the exemptions were not
properly available to the defender.
[11]
The defender's answer accounts that upon 21 March 2022 a response was provided
to the subject access request of 22 February 2022. Therein the pursuer was provided with
the information to which he was entitled in terms of the data protection legislation.
Section 45(4)(a), and schedule 2, part 2, section 7 of the Data Protection Act 2018 restricted
the pursuer's access to some data. The response issued by the defender had communicated
that this data was exempt from subject access rights and that the restriction of access was
necessary and proportionate. The pursuer was called upon to specify the basis and extent
of the alleged infringement of his rights as a data subject.
Condescendence four and its answer
[12]
The pursuer's fourth article of condescendence addresses a subject access request
made "(on) or about 31st July 2023", that communication being incorporated into pleadings
brevitatis causa. The defender's response to the same is averred to have failed to provide
all data sought in terms of the request. It is asserted that: "The Pursuer does not accept that
the Defender had a legitimate basis for withholding the information". The defender is called
upon to "specifically" set out and exemptions which applied to the date sought.
6
[13]
Thereafter the averments turn to a further request made upon 11 September 2023,
also incorporated into pleadings brevitatis causa. Personal data sought therein regarding
events of 1 October 2021 and 4 October 2021 was not provided by the defender's response
of 25 October 2023. Here too the statutory exemptions relied upon by the defender for so
doing were not available to her.
[14]
The answer of the defender admits that the requests were made and responded to. It
avers that in both of her responses the pursuer was provided with the information to which
he was entitled in terms of the data protection legislation, there was accordingly no breach
of the pursuer's rights in terms of the Act. The pursuer is called upon to specify the basis
and extent of the alleged infringement of his rights as data subject in terms of the Act. The
answer incorporates an addendum containing the defender's position in respect of the
information and documents that were provided in relation to the pursuer's requests.
[15]
There are 19 "items" (as they were referred to) addressed by the defender in the
addendum. They are as follows:
i.
Reports on all police systems for incident 20/12/2019.
ii.
Reports on all police systems for incident 03/01/2020.
iii.
Reports on all police systems for incident 02/06/2021.
iv.
Reports on all police systems for incident 01/10/2021.
v.
Reports on all police systems for incident 01/10/2021.
vi.
Firearms initial incident notification form 090-032 for incident 20/12/2019.
vii.
Firearms initial incident notification form 090-032 for incident 01/10/2021.
viii.
Firearms initial incident notification form 090-032 for incident 01/10/2021.
ix.
Firearms initial incident notification form 090-032 of 04/10/2021 for
incident 2398 of the 01/10/2021.
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x.
Firearms initial incident notification form 090-032 of 04/10/2021 for
incident 0289 of the 01/10/2021.
xi.
Supporting documents presented by Police Scotland to procurator
fiscal/sheriff in support of application for sheriff warrant.
xii.
Supporting documents presented by Police Scotland to procurator
fiscal/sheriff in support of application for sheriff warrant.
xiii.
All communications relating to pursuer between the defender's Professional
Standards Department and National Firearms and Explosives Licensing
Department.
xiv.
All communications between Police Scotland and Glasgow City Council.
xv.
Dates the defender accessed Police National Computer / Police National
Database / Criminal History System (PNC/PND/CHS) between 11/02/2019
to 21/12/2019.
xvi.
Security of firearms form showing incident number pursuer's shotguns
were stored under when under the supervision of the area commander.
xvii.
Application to procurator fiscal for sheriff warrant made by Police Scotland
seeking a warrant.
xviii. All production schedules/documents formulated relating to warrant.
xix.
Communications between Cartys solicitors and Police Scotland 1/1/2023
to 30/3/2023.
[16]
The pursuer provided a response to the addendum. Therein, item-by-item, he
accounts his position on what is averred by the defender.
8
Condescendence five and its answer
[17]
The fifth condescendence addresses damages sought. In a brief article of
condescendence the pursuer avers that the failure to respond to his subject access requests
caused him "distress over a protracted and unnecessary period of time". Particular
reference is made to the "disadvantage" he was placed at during the (successful) appeal
taken against the revocation of his firearms license. This is averred to have been by way
of preventing evidence being presented. The averments continue that the withholding
of data has brought financial detriment to the pursuer in his attempts to recover the data
sought, reference being made to his instruction of three firms of solicitors. The withholding
of data is also averred to have "..interfered with the natural course of justice and caused
the Pursuer frustration, anxiety and stress over this protracted period of lime (sic)".
[18]
The defender's answer includes a call upon the pursuer to state the loss he alleges
he has sustained and the basis upon which he attributes that loss to her responses to the
subject access requests made.
Parties' pleas-in-law
The pursuer
[19]
The pursuer first pleads that having made lawful subject access requests in terms of
sections 45(1) and (2) of the 2018 Act, declarator should be pronounced as first craved. His
second plea being that the defender's failure to comply with her obligation to disclose his
personal data, an order should be pronounced in the terms second craved. As per the third
plea-in-law, the defender having failed to meet her statutory obligation to the pursuer, an
award of compensation should be made.
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The defender
[20]
The defender's first and second pleas seek dismissal on the basis of a lack of
relevancy and specification. This is stated quoad the action itself at the first plea, and in
relation to the averments upon loss (which apply only to the third crave) in the second plea.
[21]
The defender's third, fourth and fifth pleas-in-law seek absolvitor on the basis that,
respectively; the averments where material are unfounded in fact; no contravention of the
pursuer's subject access rights has occurred; and no loss or damage has been suffered by the
pursuer.
Background and procedural history
[22]
It is relevant to account some of the somewhat lengthy procedural history:
(a)
The application was lodged by the pursuer on 26 September 2023 and was
warranted the following day. A hearing was fixed for 31 October 2023. The pursuer
had attended to the lodging without legal representation and continued to represent
himself throughout.
(b)
The defender opposed the application at the hearing. The pursuer was
permitted to amend the heading of the application and also the name of the chief
constable. A further hearing was fixed for 28 November 2023. Technical difficulties
with the pursuer's ability to connect to the virtual hearing required that hearing
to be continued until 8 January 2024. At that hearing the application was further
continued to allow the defender's solicitor time to take instructions upon preliminary
pleas. A further hearing was fixed for 6 February 2024.
(c)
On 1 February 2024 a note containing preliminary pleas was lodged by the
defender. Principally this attacked the application on the basis that both its first and
10
second pleas-in-law referred to the Data Protection Act 2018 without identifying the
relevant provisions which the defender was alleged to have infringed. On
6 February 2024 a further hearing was fixed for 16 April 2024, to allow the pursuer
time to consider those pleas. The pursuer duly lodged a minute of amendment. The
defender opposed the amendments at the April hearing. The court reserved
consideration of allowing the same until answers (and subsequent adjustments) had
been lodged. On 25 June 2024 the minute and answers as adjusted were allowed and
a further hearing fixed for 23 July 2024. Meantime, on 6 June 2024, a revised note of
preliminary pleas had been lodged by the defender. Procedure then became bound
up in the issue of a minute for contempt of court lodged by the pursuer. This was
dismissed in early September 2024 and diet of debate upon the defender's revised
preliminary pleas fixed for 5 December 2024.
(d)
The application called before me for the first time at that diet of debate.
Written submissions had been lodged, and I heard the defender's solicitor on her oral
submissions. A short way into the pursuer's oral submission it was clear to me that
he was failing to address the defender's preliminary pleas. He was, both in these
oral submissions and what he had provided in writing, concentrating exclusively
upon providing an account of the substantive merits of his application, and not
attending to dealing with the pleas to relevancy and specification. I suggested that
he may wish further time prepare his oral submission before completing the same.
The pursuer agreed this was an opportunity he would like to take up, and the diet of
debate was continued further for that to take place.
(e)
When the diet of debate recalled on 30 January this year the hearing
commenced by way of presentation of an unopposed motion by the pursuer to
11
further amend his pleadings. It was granted. The effect was that the third crave now
refers to section 169 of the Data Protection Act 2018 and had reference to Article 82 of
the General Data Protection Regulation deleted. Article of condescendence four also
had the following deleted:
"The Pursuer understands that the Defender sought to rely on the
non-existent suitability review as justifying their reliance on the exemption
provided by section 45(1) (e)and section 45(6) of the Data Protection Act 2018.
As that suitability review was not carried out, the Pursuer asserts the
Defender had no basis to do so and sought to rely on those exemptions
without proper basis".
(f)
Notwithstanding the amendments the defender's preliminary pleas remained
insisted upon. Ahead of the continued debate the pursuer had lodged written
submissions. When the case called he asked that I consider these rather than hear
him in further oral submission. I was content to do so. However, at this juncture I
raised with parties whether the declarator sought at crave 1 could be competently
granted. It was pars judicis to do so (see most recently, Afandi v City of Edinburgh
Council 2022 SAC Civ 10). I continued the hearing to provide parties with an
opportunity to lodge written submissions and thereafter present any brief additional
oral submission which they had upon the matter. The defender had also sought at
the hearing to rely on the case of Barry Scott v Kate Frame, Police Investigations and
that. I considered that fairness required that he be allowed to consider what was
said there and include any views he held upon the authority's application to the
issues at debate in those in his submissions.
12
(g)
Written submissions were duly lodged. The debate recalled on 20 March
2025. Neither party wished to augment what was written with oral submissions. I
made avizandum.
The Data Protection Act 2018
Section 45 of the Data Protection Act 2018
[23]
Section 45 of the Data Protection Act 2018 sets out obligations upon a data controller:
"(1)
A data subject is entitled to obtain from the controller--
(a) confirmation as to whether or not personal data concerning him or her is
being processed, and
(b) where that is the case, access to the personal data and the information set
out in subsection (2).
(2)
That information is--
(a) the purposes of and legal basis for the processing;
(b) the categories of personal data concerned;
(c) the recipients or categories of recipients to whom the personal data has
been disclosed (including recipients or categories of recipients in third
countries or international organisations);
(d) the period for which it is envisaged that the personal data will be stored
or, where that is not possible, the criteria used to determine that period;
(e) the existence of the data subject's rights to request from the controller--
(i) rectification of personal data (see section 46), and
(ii) erasure of personal data or the restriction of its processing (see
section 47);
(f) the existence of the data subject's right to lodge a complaint with the
Commissioner and the contact details of the Commissioner;
(g) communication of the personal data undergoing processing and of any
available information as to its origin.
(3)
Where a data subject makes a request under subsection (1), the information
to which the data subject is entitled must be provided in writing --
(a)
without undue delay, and
(b)
in any event, before the end of the applicable time period (as to which see
section 54).
(4)
The controller may restrict, wholly or partly, the rights conferred by
subsection (1) to the extent that and for so long as the restriction is, having
13
regard to the fundamental rights and legitimate interests of the data subject,
a necessary and proportionate measure to--
(a) avoid obstructing an official or legal inquiry, investigation or procedure;
(b) avoid prejudicing the prevention, detection, investigation or prosecution
of criminal offences or the execution of criminal penalties;
(c) protect public security;
(d) protect national security;
(e) protect the rights and freedoms of others.
(5)
Where the rights of a data subject under subsection (1) are restricted, wholly
or partly, the controller must inform the data subject in writing without
undue delay--
(a) that the rights of the data subject have been restricted,
(b) of the reasons for the restriction,
(c) of the data subject's right to make a request to the Commissioner under
section 51,
(d) of the data subject's right to lodge a complaint with the Commissioner,
and
(e) of the data subject's right to apply to a court under section 167.
(6)
Subsection (5)(a) and (b) do not apply to the extent that the provision of the
information would undermine the purpose of the restriction.
(7)
The controller must--
(a) record the reasons for a decision to restrict (whether wholly or partly) the
rights of a data subject under subsection (1), and
(b) if requested to do so by the Commissioner, make the record available to
the Commissioner."
Section 167 of the Data Protection Act 2018
[24]
Section 167 of the Act, details the court's powers of enforcement:
"(1)
This section applies if, on an application by a data subject, a court is satisfied
that there has been an infringement of the data subject's rights under the
data protection legislation in contravention of that legislation.
(2)
A court may make an order for the purposes of securing compliance with
the data protection legislation which requires the controller in respect of
the processing, or a processor acting on behalf of that controller--
(a) to take steps specified in the order, or
(b) to refrain from taking steps specified in the order.
(3)
The order may, in relation to each step, specify the time at which, or the
period within which, it must be taken.
14
(4)
In subsection (1)--
(a) the reference to an application by a data subject includes an application
made in exercise of the right under Article 79(1) of the UK GDPR (right
to an effective remedy against a controller or processor);
(b) the reference to the data protection legislation does not include Part 4 of
this Act or regulations made under that Part.
(5)
In relation to a joint controller in respect of the processing of personal data to
which Part 3 applies whose responsibilities are determined in an arrangement
under section 58, a court may only make an order under this section if the
controller is responsible for compliance with the provision of the data
protection legislation that is contravened."
Section 169 of the Data Protection Act 2018
[25]
Section 169 of the Act enables compensatory awards by the courts. It does so thus:
"(1)
A person who suffers damage by reason of a contravention of a requirement
of the data protection legislation, other than the UK GDPR, is entitled to
compensation for that damage from the controller or the processor, subject
to subsections (2) and (3).
(2)
Under subsection (1)--
(a) a controller involved in processing of personal data is liable for any
damage caused by the processing, and
(b) a processor involved in processing of personal data is liable for damage
caused by the processing only if the processor--
(i) has not complied with an obligation under the data protection
legislation specifically directed at processors, or
(ii) has acted outside, or contrary to, the controller's lawful instructions.
(3)
A controller or processor is not liable as described in subsection (2) if the
controller or processor proves that the controller or processor is not in any
way responsible for the event giving rise to the damage.
(4)
A joint controller in respect of the processing of personal data to which Part 3
or 4 applies whose responsibilities are determined in an arrangement under
section 58 or 104 is only liable as described in subsection (2) if the controller
is responsible for compliance with the provision of the data protection
legislation that is contravened.
(5)
In this section, `damage' includes financial loss and damage not involving
financial loss, such as distress."
15
Schedule 7 to the Data Protection Act 2018
[26]
Schedule 7 to the Act addresses exemptions to the obligations set out at section 45 of
the Act. The relevant passage for the purposes of this action is found at section 7 of part 2 of
the schedule:
"The listed GDPR provisions do not apply to personal data processed for the
purposes of discharging a function that--
(a)
is designed as described in column 1 of the Table, and
(b)
meets the condition relating to the function specified in column 2 of the Table,
to the extent that the application of those provisions would be likely to prejudice the
proper discharge of the function."
The germane part of the table is as follows:
The function is designed to protect
members of the public against
The function is--
(a) dishonesty, malpractice or other
seriously improper conduct, or
(a) conferred on a person by an
enactment
(b) unfitness or incompetence.
(b) a function of the Crown, a Minister
of the Crown or a government
department, or
(c) of a public nature, and is exercised in
the public interest.
Parties' submissions
[27]
The defender's insisted upon preliminary pleas were opposed. Further, the defender
maintained the crave for declarator was incompetent, whilst the pursuer maintained that
this was not so.
The defender
The declaratory
[28]
Understanding of the defender's submissions upon the crave for declarator requires
exposition of its terms.
16
[29]
As it stood before the court at debate the crave was as follows:
"To make a Declarator that the Defender has failed to comply with its statutory
obligations under section 45(1) and (2) to fully and properly respond to the subject
access requests made by the Pursuer (or his agent) on 17th November 2021,
22nd February 2022 and 31st July 2023 and 11th September 2023."
[30]
In his final written submissions the pursuer sought that in the event that I was not
persuaded that his crave was competent and relevant (although his position remained that
it was both) he be allowed to amend. As amended, if I deemed that necessary, the crave
would read thus:
"To make a Declarator that the Pursuer has a right under section 45(1) and (2)
of the Data Protection Act 1998 for the Defender to fully and properly respond to
the subject access requests made by the Pursuer (or his agent) on 17th November
2021, 22nd February 2022 and 31st July 2023 and 11th September 2023."
[31]
Citing paragraphs 20.01 and 20.05 of MacPhail's Sheriff Court Practice, and pages 105,
106 and 115 of Walker on Civil Remedies the defender submitted that the crave for declarator
was incompetent and irrelevant. This was so both when considered in the terms in which it
presently stood and also in the terms in which it would stand if amendment was allowed.
The submission was that an action of declarator is one to declare the existence of a right the
evidence of which is not apparent, or declare non-existent what appears on the face of things
to be a right. The currently framed crave for declarator did neither. It sought declarator of
the breach of the pursuer's section 45 rights. Seeking declarator of a putative breach of
rights was not competent. The pursuer's reliance on Clarke v Fennoscandia Limited No 2 2001
SLT 1311 (paragraph 33) and Aberdeen Development Company v Mackie, Ramsay and
Taylor 1977 SLT 177 misunderstood their import. Those authorities were not supportive
of his position that the declarator as currently sought could be competently granted.
[32]
In any event, both the currently sought declarator, and the amended crave I was
asked to allow if necessary, were irrelevant. MacPhail and other authorities, most recently
17
Barry Scott v Kate Frame (ibid), made clear that declarators without practical effect should
not be made by the courts. Accordingly craves and supporting averments aimed at having
the court do so were irrelevant. The existence of the rights bestowed by section 45 of the
2018 Act were clear. There was no identifiable purpose or practical effect in declaring their
existence.
Crave 2 and its averments
[33]
The crave seeking an order in terms of section 167 of the Act and its averments were
fatally lacking in relevancy. There were a number of deficiencies. What is purported in
Article 2 of condescendence to be a subject access request made on 17 November 2021 was in
fact no such thing. Further the pursuer had not denied the defender's averments in answer
and had not averred why it is that the data produced did not satisfy the purported subject
access request.
[34]
The averments at Articles 3 and 4 plead only the assertion of the pursuer's belief that
the defender was not entitled to the statutory exemption to provide data requested. Fair
notice is accordingly not provided by those pleadings. They should (but fail to) set out facts
which will be proved to establish what the defender should have done, and that which she
failed to do. Separately, the averments were also at points confusing.
Crave 3 and its averments
[35]
The pleadings in support of the third crave were so lacking in specification as to be
irrelevant. They do not set out the basis for financial detriment, nor which actions by the
defender caused distress. They do not distinguish the heads of claim. Neither is it possible
to discern the pursuer's position upon the fundamental issue of causation and loss from
18
what is pled. Consequently, fair notice was not provided of what the pursuer was offering
to prove, notwithstanding the repeated opportunities that had been afforded to him to
amend his pleadings.
The defender's motions
[36]
Principally I was moved to dismiss the action. Failing which, I was asked to dismiss
the first and third craves. The second should be admitted to probation under deletion of
the words "22nd February 2022 and 31st July 2023 and 11th September 2023". Only the
averments in Article 2 of condescendence should go forward to probation.
The pursuer
The declaratory
[37]
The pursuer maintained that the crave was both competent and relevant. MacPhail
at Chapter 20 made clear the power of the sheriff court to grant a declarator. The court also
had jurisdiction to make orders in terms of section 167 and 169 of the 2018 Act. Clarke v
Fennoscandia Limited (ibid) at paragraph 33 was authority supporting the pursuer's stance
that a competent declarator in the terms sought could be made:
" .. the authorities and particularly Maclaren appear to support the position that
declarator can be used in either a positive or negative sense to assert a matter which
could competently be a defence to another action".
[38]
The pursuer agreed that declarator should only be granted in respect of a live
practical issue and referred to the opinion of the court in Aberdeen Development Co v Mackie,
Ramsey & Taylor (ibid) at page 178 in that regard. In his submission the declarator sought
by him was not a hypothetical matter. The declarator would support the granting of the
orders sought at craves 2 and 3. The facts in Barry Scott (and for that matter in Aberdeen
19
Development Co) were distinct from those in the present case. If however I was unsatisfied
that all of this was correct, I should allow him to amend so that the crave for declarator was
in the terms which I previously accounted.
Crave 2 and its averments
[39]
The averments on record supported the crave for an order in terms of section 167
of the Act and clearly set out what the order sought from the defender. This was
acknowledged by Sheriff Cottam in his note to his interlocutor of 16 April 2024:
"The question to be resolved between parties is the alleged failure to provide
information/ data. That is still the request, now properly narrowed and set out.
The defender has always been clear as to the pursuer's position, albeit not clear
exactly what he wanted in the correct form".
[40]
The email of 17 November 2021 was a subject access request. The absence of specific
and explicit designation of the request as being such a request was not a requirement of the
Act.
[41]
The pursuer's case was that the subject access requests made had not been fully
responded to in terms of the defender's obligations as per section 45 of the Act. The
defender had relied upon the provisions which provide exemptions from complying with
section 45 but had not explained the bases upon which the exemptions were available. The
pursuer's articles of condescendence by way of its narration of facts and circumstances
relating to the requests disclosed a case that the statutory exemption had not been applied
properly.
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Crave 3 and its averments
[42]
The averments expressly set out the bases upon which compensation was sought in
a way which was easily comprehensible to the defender. Article 5 stated that distress had
been suffered consequential to the defender's failure to fully and properly respond to the
subject access requests. The suffering, including frustration, anxiety, and stress, had taken
place over a protracted and unnecessary period. The pursuer had been placed at a
disadvantage in his appeal against the revocation of his firearms license. He had been
"put to the task" of instructing three different firms of solicitors to attempt to obtain the
data he continues to seek. The defender's withholding of the data had resulted in financial
detriment in legal costs incurred and also the time which the pursuer himself had expended
pursuing matters.
Decision
Crave 1
[43]
As per MacPhail, at Chapter 20 and Walker at Chapter 8, a crave for declarator is one
which seeks that a right be declared in favour of the pursuer, or that it declares non-existent
what appears to be an existent right. The pursuer must have an interest in the declarator
sought, and the court will only grant a declarator in respect of a live, practical issue. It is
incompetent to bring an action to have a fact declared which has no legal consequences for
the pursuer, or to seek a judicial opinion on an abstract question of law. Similarly, to do so
where the right is not challenged, or doubted (Walker at page 105, MacPhail 20.01, Scott v
Kate Frame (ibid) paragraph 88).
[44]
Crave 1 of the application does not seek a declarator of the rights provided by
section 45 of the 2018 Act. What is sought amounts to a finding in fact and law that on
21
specified dates the defender failed to comply with her obligations in terms of that section.
That is not a competent declarator. The pursuer misunderstands Clarke v Fennoscandia
Limited as authorising a declarator in the form which he sought to be made. The amended
terms of the crave tentatively proposed by the pursuer would not improve matters. The
element of the court being asked to declare a finding, so to speak, is removed, but what is
left is an assertion of a right to provision of data in terms of section 45. As per Walker,
MacPhail and Scott v Kate Frame the court should not make declarators of rights which are
not doubted. The existence of section 45 rights, their availability to the pursuer, and the
concurrent obligations they impose on the defender are not challenged in this case. What is
challenged is the pursuer's assertion that the defender failed to comply with her obligations.
The defender's position is that the data provided was properly restricted in accordance
with the provisions of, including exemptions provided by, the 2018 Act. The pursuer, in
turn, contending that the statutory exemptions were not legitimately applied. Neither
would any practical issue be affected by the making a declaration of the right. The defender
prays in aid the support the declarator would provide for craves 2 and 3. That approach is
misconceived. The orders sought in those craves can be pursued and made (if the pleadings
and evidence supports them) without any such declarator. The crave is not competent.
Crave 2
[45]
The test for relevancy in Scots law is well-established. An action will not be
dismissed as irrelevant unless it must necessarily fail, even if all the pursuer's averments
are proved (Lord Normand in Jamieson v Jamieson 1952 SC HL 44).
[46]
The defender disputes that the communication sent to her on 17 November 2021
constituted a subject access request. I was not pointed to the authority , statutory, or
22
otherwise, which would allow the court to determine that to be so at this juncture. In my
view it is a matter for proof.
[47]
The relevancy critique of the pleadings more generally applied by the defender is
that the averments disputing that she properly relied on available exemptions provided for
by Act are entirely comprised of assertions of belief. The facts that support the proposition
are not pled. Those averments are therefore irrelevant. Without relevant pleadings there is
no basis for a finding that the section 45 exemptions were unavailable to the defender. That
being so crave two would fall to be dismissed.
[48]
MacPhail at paragraph 9.64 has set out the courts' approach to pleadings upon a
party's belief:
"If a material fact, which a party must establish in order to succeed in the claim
or defence, is not known to the party, it may be averred that the party believes it
to be true if that is a reasonable inference from other facts known to or ascertained
by the party which are averred as matter of categorical assertion. That may be
appropriate where the material fact is within an opponent's knowledge; but it is
inappropriate where it is wholly within the party's own knowledge. An averment
of belief which is not supported by other averments from which it may reasonably
be inferred is irrelevant".
[49]
The pursuer's pleadings include averment that no explanation was provided for the
defender's reliance upon the statutory exemptions. In his submissions the points that are,
in effect, made are these: The defender holds the information as to why the exemption was
employed, but the basis of the application of the exemptions is not explained. The pursuer
is disadvantaged by this absence of information when pleading. Nevertheless, his pleadings
are sufficiently composed of information and circumstances pertaining to the request made
to support a finding in fact that the exemptions were not properly applied.
[50]
In examining the pursuer's position I considered what is averred at Articles 2, 3
and 4, and also the responses to the defender's incorporated addendum to the fourth
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answer. The defender's agent cast doubt upon whether these could be deemed to be part
of the pleadings - the pursuer did not aver that they were incorporated. However, on
consideration I am of the view that they should are part of the pleadings, notwithstanding
that omission. They are responses to 19 "items" the defender incorporated into her
pleadings. They were clearly presented as part of his case. Neither do I consider, looking
at the pursuer's pleadings as a whole, that it can be properly said that he has failed to
answer calls, or left defender's statements unanswered, so as to make admissions of the
defender's case on the material contentious issue of the proper application of the statutory
exemptions.
[51]
Looked at in the round, taking account also of what is said at paragraph 9.64 of
MacPhail, I was persuaded that there was sufficient information and circumstances pled
pertaining to the subject access requests to allow the court to consider finding in facts that
the exemptions were not properly applied. That, to borrow from Jamieson v Jamieson, crave 2
would not necessarily fail if all of the pursuer's averments pertaining to it were proved. I
wish to add that, with unfeigned respect to my brother sheriff, in reaching this decision I
was not influenced by Sheriff Cottam's note to his April 2024 interlocutor. That was made
at a different point in the action, with different pleadings, and in relation to a different issue
for determination. It specifically accepted the prospect that further challenges might be
made to the pleadings by way of preliminary plea. It was not determinative of the issues
raised by the defender which came before me.
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Crave 3
[52]
As per MacPhail at 9.28:
"A party's averments in condescendence or answers must specify sufficient facts
to allow the party to lead all the evidence desired to be lead at the inquiry, and to
give the opponent fair notice of what the party hopes to establish in fact; and they
must present, together with the pleas-in-law, a relevant claim or defence".
[53]
I agree with the defender that the specification provided in the pursuer's averments
supporting the third crave are so lacking as to result in fair notice of the pursuer's case being
absent. Section 169(5) of the Act defines damages available under the Act as including
financial loss and damage not involving financial loss, such as distress. Those heads of
claim are identified in the averments but not in a way that provides fair notice. The
existence of distress, stress, anxiety, and frustration, are all averred, but no averments are
provided as of how, or when, or where, they manifested themselves. The financial loss
(styled as "detriment" by the pursuer) is averred to be the instruction of solicitors, however
the legal expenses incurred are not specified at all. Neither do the averments as to the
purported "disadvantage" suffered during the successful appeal against the revocation
of the pursuer's firearm license explain the loss suffered, if indeed this head of claim is
available as per section 169(5) at all.
[54]
The averments being fatally lacking in specification the crave should be dismissed.
Equal treatment
[55]
I had in the front of my mind during the conduct of the debate and when making
my decisions here, that the pursuer is a party litigant. However, as the procedural history
narrated above discloses he has had more than adequate time to ensure his craves are
competent and his averments contain sufficient specification to go forward to proof.
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[56]
Our recently revised Equal Treatment Bench Book provides that the judiciary
may make allowances for a party litigant, but should take care not to alter the balance
of proceedings if those are otherwise in an adversarial setting. This guidance is informed
by the United Kingdom Supreme Court judgment in Barton v Wright Hassall LLP
"[t]he rules provide a framework within which to balance the interest of both sides.
That balance is inevitably disturbed if an unrepresented litigant is entitled to greater
indulgence in complying with them than his represented opponent. Any advantage
enjoyed by a litigant in person imposes a corresponding disadvantage on the other
side...."
Also by our own Sheriff Appeal Court in Royal Bank of Scotland PLC v Aslam
[2023] SAC (Civ) 20, at paragraph 15: "I recognise that more leeway will normally be afforded to a party
litigant, but there is a limit to the leeway to be afforded".
[57]
In this case leeway and allowance has been appropriately afforded to the pursuer,
but the craves dismissed and averments removed from probation remained fatally deficient.
To treat them otherwise would have been to treat the pursuer exceptionally and the
defender unfairly. It would have offended against the principles in Barton v Wright Hassall
LLP and Royal Bank of Scotland PLC v Aslam.
Order
[58]
Consequent upon this decision I make the following orders:
(a)
I dismiss the pursuer's first crave as incompetent.
(b)
I repel the defender's first plea-in-law.
(c)
I sustain the defender's second plea-in-law and dismiss the pursuer's third
crave.
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(d)
I allow the pursuer a proof upon his averments at his second, third and
fourth articles of condescendence for his second crave.
Further procedure
[59]
The appropriate course at this juncture is to fix a procedural hearing at which time
a diet of proof can be assigned. Other case management issues can be attended to then also
and my interlocutor contains directions aimed at that. There is no requirement that I deal
with the case going forward save, perhaps, the issue of expenses identified below.
Expenses
[60]
There has been mixed success for both parties. I am inclined in those circumstances
to reserve the issue of the expenses of the debate procedure until final orders are made in
the action. However, parties may wish to submit that this preliminary view is not correct
or appropriate. As such I will in the first place continue consideration of the expenses of
the debate until the procedural hearing. If parties agree that the issue of expenses should
be reserved they should email the sheriff clerk's office no later than seven days from today's
date to say so.