England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(HIS HONOUR JUDGE SPENCER QC)

		Royal Courts of Justice Strand London WC2A 2LL
		12 June 2013

LORD JUSTICE TOMLINSON:

1. This is a renewed application for permission to appeal which is brought by Dr Warring-Davis against the Santander bank. It is a second appeal, or an attempt to bring a second appeal because Dr Warring-Davis has already failed before District Judge Edwards in 2011, and he appealed unsuccessfully before HHJ Shaun Spencer QC, that appeal failing on 8 May 2012. In order therefore to obtain permission to appeal to this court, permission to bring a second appeal against the decision of District Judge Edwards, Dr Warring-Davies must satisfy the court that there is at stake some issue of principle, or that there is some other compelling reason why an appeal should be permitted.
2. The nub of the case, as it has been explained to me by Dr Warring-Davies, who has represented himself this morning, is that he complains that the Santander Bank has refused to erase data which it holds concerning him, which arises out of a mortgage application which Dr Warring-Davies and his wife made to the Santander Bank in 2010. On that occasion, as part of the application process, Dr Warring-Davies was required to open a further account with the Santander Bank, the sole purpose of which would have been to service the mortgage had the application for the mortgage been successful.
3. Dr Warring-Davies tells me, and of course I accept, that he was required to deposit a small sum of money in that account, and he has also explained that after the failure of the mortgage application he encountered difficulties with the Santander Bank even to the extent that he had to start proceedings in the Bradford County Court in order to recover the small amount of money which he had deposited. However, that is water under the bridge in this sense, that Dr Warring-Davies obtained a default judgment pursuant to which the account was closed and he recovered the sum of money.
4. The essence of the complaint which exists at this stage, which I should add is not entirely easy to spell out of the particulars of claim dated 6 September 2010, is that the bank, Santander, has indicated that it will not destroy or erase all the personal data which it holds concerning Dr Warring-Davies for a period of six years, running I think from the failure of the mortgage application. The judge below, Judge Spencer, refers to this in his judgment, and he sets out a letter written by a lawyer at Santander on 24 August 2010 in which she says:

"I note that you have requested that all your personal data is destroyed pursuant to the Data Protection Act. Unfortunately, I am unable to comply with this request I am afraid. The Data Protection Act states that data should not be retained for longer than is necessary but this does not mean that the end of a relationship requires us to destroy such data. The retention period is driven by the purpose for which we may need the information, for example, our statutory obligations under the Money Laundering Regulations and the six year statutory limitation period."

5. The judge also set out some of the evidence that was before the court, which related to historical matters and the manner in which data had been deleted concerning earlier accounts which Dr Warring-Davies had closed at an earlier time. The nub of the matter, however, as I have indicated, is Dr Warring-Davies' complaint concerning the failure to erase or destroy the data arising out of his 2010 mortgage application. He points to the fact that because the mortgage application failed, there is, therefore, no ongoing enduring relationship between himself and Santander, and he contends that the bank can therefore have no purpose, or at any rate no legitimate purpose, pursuant to which they are entitled to retain the data.
6. Both District Judge Edwards and in due course HHJ Spencer concluded that it was reasonable for Santander to retain a record of all its transactions with an individual customer until six years after it had finished dealing with that customer, even if those transactions spread back for some time prior to the point at which the contractual relationship ended. Judge Spencer referred to the legislation, and in particular section 10, which provides:

"Subject to subsection (2) an individual is entitled at any time by notice in writing to a data controller to require the data controller at the end of such period as is reasonable in the circumstances to cease, or not to begin processing, or processing for a specified purpose or in a specified manner, any personal data in respect of which he is the data subject…"

7. It is apparent therefore that the statutory requirement is to delete the data at the end of such period as is reasonable in the circumstances. The District Judge, and Judge Spencer in agreement with him, formed the view that it was entirely reasonable that a bank such as Santander should maintain the records for a period of six years. Dr Warring-Davies suggests that there is no regulatory reason why the information should be kept for so long because it is in the highest degree unlikely that the FSA would wish to make enquiries in relation to an account which has been closed. However, that overlooks the circumstance that within the period of six years proceedings might be brought by Dr Warring-Davies himself arising out of the circumstance that he was refused a mortgage by Santander. Furthermore, there are, as we all know, ongoing requirements on financial institutions to keep records so that they may comply with the need to supply information in connection with routine enquiries into money laundering. Essentially, the two judges below reached a conclusion of fact on the basis of the evidence before them that it was reasonable for the bank to retain a record of transactions until six years after they had finished dealing with that individual customer. That, in my judgment, was a conclusion of fact on the basis of the evidence before them with which this court would be most unlikely to interfere. Indeed, I would go further and say that there is in fact no realistic prospect of this court differing from the judges below, bearing in mind that the limitation period is one of six years, and bearing in mind the risks to which a financial institution is subject until such time as a period of six years has elapsed. However, it is not necessary to go that far because it is plain, as I have explained, that the appeal which is sought to be brought is an attempt to persuade this court to differ from a finding of fact in the court below, and that does not raise an issue of principle. As Sir Richard Buxton said when dealing with this application on the papers, both judges were plainly entitled to hold that retention until the expiry of the limitation period was reasonable. In agreement, therefore, with Sir Richard Buxton, I am satisfied that the application for permission to appeal would fail, even were this an application to bring a first appeal, but it must in any event fail because it does not meet the necessary criteria for a second appeal.

Order: Application refused