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Neutral Citation Number: [2024] EWHC 391 (KB)

Case No: QB-2022-000798

IN THE HIGH COURT OF JUSTICE

KING'S BENCH DIVISION

MEDIA AND COMMUNICATIONS LIST

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 22/02/2024

Before :

MR JUSTICE JULIAN KNOWLES

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Between:

	YSL	Claimant
	- and -
	SURREY AND BORDERS PARTNERSHIP NHS FOUNDATION TRUST	Defendant

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YSL appeared in person

Jack McCracken (instructed by Clyde & Co LLP) for the Defendant

Hearing dates: 14^th & 15^th June 2023

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Approved Judgment

This judgment was handed down remotely at 10.30am on 22 February 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

.............................

Mr Justice Julian Knowles:

Introduction

1. There is an anonymity order in place for this case protecting the Claimant’s identity and he will be referred to as the Claimant or YSL.

2. His claim against the Defendant is brought under data protection legislation, privacy and the Human Rights Act 1998. It concerns his patient records and what he regards as the unlawful processing and retention of his personal data by the Defendant. He also maintains a complaint about the accuracy of some of the data.

3. Paragraph 2 of his trial Skeleton Argument asserted:

“Since April 2011, D has been engaging in a pattern of unauthorized data collection about C, gathering excessive amounts of information without C's knowledge or consent. The collected data covers an extensive range of personal details, including intimate aspects of C's private life like his bathroom and eating habits, hobbies, sexual orientation, racial identity, medical data, and even future reproductive intentions. At this time C did not consent to the “treatment” nor was he aware of what was going [on] ...”

4. The claim has something of a history, as I shall explain. As the Claimant said, it relates to matters going back to around 2011, and continuing thereafter.

5. The Claim Form was sealed on 10 March 2022 and served with Particulars of Claim (PoC). YSL filed and served a witness statement dated 19 April 2022. The Defendant filed a Defence in May 2022. YSL filed a Reply in July 2022.

6. In March 2023 the Claimant made an application for summary judgment. I mean no disrespect when I say this was largely a reiteration of what he sees as the merits of his claim. His witness statement in support and exhibits ran to over 150 pages. Senior Master Fontaine ordered that to be dealt with at a hearing (the Claimant had sought summary judgment without a hearing).

7. Then, on 6 June 2023, the week before the trial, which was listed for 14/15 June 2023, YSL filed a notice of discontinuance. That was signed by both parties. However, almost immediately, YSL withdrew it with the Court’s consent.

8. On 9 June 2023 I made an ‘unless’ order requiring the Claimant to comply with trial directions which Deputy Master Fine had made in December 2022 requiring the filing of a bundle and Skeleton Arguments and the like, which the Claimant had not complied with. My order provided that in the event of non-compliance, the claim would stand dismissed.

9. Also on 9 June 2023, the Defendant applied to strike out the claim on the grounds, first and foremost, that there was a compromise or settlement reached between the Claimant and the Defendant as long ago as 2016 in relation what it said were the same matters largely or wholly covered by the present claim. Further or alternatively, the Defendant said the claim should be struck out on as an abuse of process on the basis of the principles in Johnson v Gore Wood & Co [2002] 2 AC 1, and for other reasons.

10. The Claimant complied with my unless order. In the days leading up to the trial there was a flurry of material from both sides, including Skeleton Arguments and evidence, and also draft Amended Particulars of Claim from the Claimant. Over 4000 pages of authorities alone were filed. There are numerous different bundles and supplementary bundles. I did essential pre-reading before the hearing, but there has needed to be extensive post-hearing reading and research.

11. I should make clear in relation to the draft Amended Particulars of Claim that no consent to amendment has been forthcoming from the Defendant pursuant to CPR r 17.1(2)(a), and the Claimant has not made an application under CPR r 17.1(2)(b) for the Court’s permission to amend his PoC. This judgment therefore proceeds on the basis of the claim as presented in the PoC.

12. In the event, I heard the strike-out application and heard evidence on the trial (and YSL’s summary judgment application) immediately thereafter, and reserved judgment on all matters. I afforded YSL a number of breaks during the case at his request. I also rose early on the first day of the hearing, again at his request. I bear (and bore) in mind that he is a litigant in person and that hearings are stressful. I am satisfied that YSL had a full and proper opportunity to present his case and he did not suggest otherwise (although I note his written submissions about the alleged lateness of the Defendant’s strike-out application). The Defendant’s case was presented with fairness and sensitivity by Mr McCracken.

13. In this judgment I will use the following abbreviations: Data Protection Act 1998 (DPA 1998); Data Protection Act 2018 (DPA 2018); General Data Protection Regulation ((EU) 2016/679) (EU GDPR); the retained version of the EU GDPR as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of s 3 of the European Union (Withdrawal) Act 2018 and as amended by the Data Protection, Privacy and Electronic Communications (Amendments etc) (EU Exit) Regulations 2019 (SI 2019/419) (the UK GDPR).

14. I will refer several times to the ‘processing’ of data in this judgment. Article 4(2) of the UK GDPR states that ‘processing’ means:

“… any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction;”

Background

15. YSL is currently a student but has done, or is also doing, other things.

16. I have taken some of the chronology that follows from the witness statement dated 9 June 2023 of Michelle Golden, a solicitor with the Defendant’s solicitors Clyde & Co LLP (Clyde & Co), in support of its strike-out application. The witness statement is obviously verified by a statement of truth. I do not regard what follows as being controversial.

17. YSL was a patient of the Defendant under its CAMHS (Child and Adolescent Mental Health Services) from around April 2011 to the time of his discharge from CAMHS on 23 October 2014. During his time at CAHMS he was treated by, amongst others, Dr JW, a Clinical Psychologist, and Dr DG, a Child and Adolescent Psychotherapist

18. YSL was subsequently assessed by the Defendant’s Psychiatric Liaison Service on 4 February 2016. He was by that time an adult.

19. The thrust (but not the entirety) of YSL’s present claim relates to medical and other records held by the Defendant as a result of his interactions with it, mainly while he was under the care of CAMHS. To put it neutrally, his complaint is that certain records and personal data were unlawfully disclosed to third parties; that some are inaccurate (including in particular a potential diagnosis of autism); and that the Defendant’s records retention policy whereby records are kept for 20 years is unlawful because it is disproportionate and breaches his fundamental rights, and he seeks erasure of his entire patient records as a result. He also complains about the processing of material by the Defendant received from Surrey Police about him via something called the Surrey Multi-Agency Sharing Hub (MASH), a mechanism by which different agencies can share information about adults potentially at risk.

Background to YSL’s various claims against the Defendant from 2015 - 2023

20. I note from YSL’s medical records in the bundle at E/121 that there is an entry for 5 January 2016:

“Tue 05 Jan 2016 08:20 … MM Acrobat Document: accreq [YSL] 1073953.pdf - Subject Access Request”

21. I take from this that YSL made a subject access request (SAR) around this time for his medical records. There is a similar entry on 25 July 2016, and there are a number of similar entries in later years in YSL’s records.

22. YSL sent a letter to the Defendant notifying his intention to take legal action as long ago as 17 June 2016. YSL had complained to the Defendant in or around 2015 and an internal complaints procedure had followed. It would appear there had also been a meeting between the Claimant and staff from the Defendant.

23. The letter made a number of complaints, including about Dr JW. It said that she had sent a letter to YSL’s school allegedly breaking his confidentiality, and undertook an autism assessment’. The letter also complained about Dr DG, including that he had telephoned YSL’s school and had ‘confirmed’ increased obsessional behaviour and ‘Asperger’s traits’.

24. The letter made many complaints about his records from his CAMHS treatment. It ended by stating that the Defendant had breached the Data Protection Act 1998 and Article 8 of the European Convention on Human Rights (ECHR/the Convention) read with the Human Rights Act 1998. YSL stated he would be seeking ‘compensation … and should this go to court I will also be asked for other legal remedies’. High Court litigation was said to be contemplated by 21 June 2016.

25. In or around 29 July 2016 YSL sent a Part 36 offer to the Defendant. He sought £40,000 in compensation; erasure of all information relating to him, as he did not consent or was made aware of any storage of his data; a full apology; disciplinary action against Dr SM (another CAMHS doctor); and agreement by the Defendant to terminate the employment of Dr SW and Dr DG for a period of not less than three years.

26. For the reasons set out in Ms Golden’s witness statement at [14], I am satisfied that any privilege which existed in this offer has been waived as a result of YSL referring to it and its terms in his PoC and in his evidence.

27. I move forward to September 2016. Paragraph 15 of Ms Golden’s statement said this:

“15. It appears YSL sent his first formal letter of claim (assuming the letter of 17 June 2016 is not treated as a letter of claim) to the Trust in respect of legal action over his medical records on 6 September 2016. I exhibit a copy as MG3. The letter of claim appears on its face undated, but I believe the correct date is 6 September 2016 from information in a privileged document created by Weightmans LLP close to the time (if there is any dispute about the date of the letter of claim the Trust will waive privilege over the document but only to the extent of proving the date of the letter of claim to be 6 September 2016). This letter of claim, written pursuant to the defamation pre-action protocol, gave a list of eleven main examples of defamation and sought damages of £200,000 for what YSL described as ‘defamation, inaccuracies in his medical records, and breach of confidence’.

28. It is accepted by the Defendant there is an inadvertent mistake in this paragraph, in that the quote at the end of the paragraph did not appear in YSL’s letter, but is a descriptive summary of the allegations in the letter.

29. On 17 November 2016, Weightmans LLP, the Defendant’s then solicitors, responded to YSL in without prejudice correspondence. For the same reasons as earlier, I consider that without prejudice privilege no longer exists. This letter finished by stating that:

“… we note that in your recent Part 36 offer you made a request that all the documentation held by the Trust relating to be erased. Our client is not as a matter of law able to action this request. We would refer you to the Guidance: Requesting amendments to health and social care records issued by the National Information Governance Board for Health and Social Care.”

30. The Guidance referred to said (inter alia):

“Providing care and treatment is often complicated and based on trust between you and the professionals providing it. Professionals will usually make decisions about care or treatment based on what happened or what was done previously. For this reason, it is important to you and the professionals that the whole record (including any amendments, who made them, and why) is available.

Completely removing one or more pieces of information from a record so that no one knows it was ever there can be like taking a chapter out of a book - the following chapters often do not make sense.”

31. Enclosed with this letter was a Part 36 offer to settle the proposed claim in the sum of £6,000. (Neither side now has a copy of the actual offer itself; I was told that the Defendant’s initial offer may have been lower, and that it was an open offer and not a Part 36 offer, but little turns on those matters now.)

32. What is clear is that YSL and the Defendant reached an agreement on or around 23 November 2016 when YSL signed a Form of Receipt and Discharge (which we do have). That stated:

“I [YSL of address] agree to accept the sum of £6,000 in full and final satisfaction and discharge of all claims that I may have against Surrey & Borders Partnership NHS Foundation Trust arising out of the disclosure of my personal information to third parties by staff at the Trust Children & Adolescent Mental Health Services including [Dr JW and Dr DG] whilst I was under their care in 2011 and 2012.”

33. A few days after signing this, YSL sent a second formal letter of claim to the Defendant dated 28 November 2016. Ms Golden did not have a copy of the letter when she wrote her witness statement, but she understood that the issues raised in the letter included claims under the DPA 1998; the Human Rights Act 1998; for defamation; under the Equality Act 2010; and for misfeasance in a public office. Complaints were again made about Dr SWt, Dr DG and others involved in his treatment. This time YSL sought compensation of £2.5 million together with a formal apology, and repeated his previous request that all of his information be removed from the Defendant’s systems.

34. The Defendant, via Steven Chahla of the NHS Litigation Authority, emailed YSL on 20 March 2017 about a complaint which YSL had made. Mr Chahla apologised for various lapses in communication, but said:

“I accept that our communication with you should have been better. We did not acknowledge your original letter of claim dated 17 June 2016 until 15 July, and the next communication with you appears to be your email sent on 5 September attaching a Part 36 offer to accept £40,000. In that email you mentioned a second letter of claim sent to the trust, which we received on 6 September. However, we did not acknowledge your second letter until 5 October.

I apologise for failing to keep you better informed about the progress of our investigations. I note that we eventually concluded settlement of your claims for £6,000 on 23 November 2016.

I apologise again for our shortcomings in communication, but I do not believe that your position has been prejudiced by any delays. Your claims were brought under a variety of headings, including the Defamation, Data Protection, Human Rights, Equality and Children’s Acts, and all causes were taken into consideration in arriving at a settlement. Martin Forshaw of Weightmans has explained that your defamation claim was always, in law, bound to fail, and that the law will not allow you to bring further claims arising from essentially the same facts on which you have already been compensated.”

35. On or about 6 December 2019 YSL sent a third letter of claim to the Defendant ‘for breaches of the Data Protection Act 2018, Human Rights Act 1998, European Convention on Human Rights and Common Law Duty of Confidentiality.’ This related to information said to have been obtained from Surrey Police. It sought removal of all ‘information obtained from the Surrey MASH’ (Multi-Agency Sharing Hub); compensation of £7,000; and costs.

36. A manager with NHS Resolution responded by a holding email on 20 December 2019.

37. At some point Clyde & Co took over from Weightmans LLP as the Defendant’s solicitors.

38. On 28 February 2020 Clyde & Co, wrote to YSL responding to his letter of claim and denied liability, setting out the Defendant’s reasons.

39. YSL made a further SAR to the Defendant on 1 October 2020. He made a further request on 5 September 2021 stating, ‘I wish to make a request for all information that is held about myself’.

40. YSL then emailed the Defendant on 8 September 2021 requesting the immediate removal of all his personal data.

41. The Defendant responded by email dated 20 September 2021.

42. On 4 January 2022 the Defendant’s Records Team sent an email at 15.51 to YSL confirming amongst other things that his records could not be erased. It would appear from that email that in the interim YSL had made a complaint to the Information Commissioner’s Office (ICO).

43. On 4 February 2022 YSL sent a fourth formal letter of claim by way of an email at 19.04 to the Defendant. This related again to the retention of his records. He said that he:

“… believes that the continued processing and retention of their Personal Data is unlawful and the Defendants failure to comply with contents of the request is also lawful. The Defendant unlawfully obtained and processed the Claimants Data. Including (but not limited to) failing to comply with the lawfulness, fairness and transparency requirements and failing to ensure the accuracy of Data.”

44. He sought ‘unspecified damages and an injunction to prevent the continued processing of the Claimant’s Data’ and sought the matter to be resolved in court.

45. On or around 23 February 2022, the Defendant received notice of a hearing in the County Court in relation to a claim by YSL for an injunction.

46. The Defendant served a witness statement from Ms Golden of Clyde & Co dated 4 March 2022 and a Skeleton Argument from counsel opposing the injunction, on both procedural and substantive grounds. This matter was concluded when on 1 June 2022 the Court noted that new proceedings had been issued (ie, the claim before me) and the County Court matter was therefore consolidated with those new proceedings.

47. On 9 March 2022 YSL issued this claim (Claim No QB-2022- 000798).

48. On 7 December 2022 this matter came on for a costs and case management hearing before Deputy Master Fine and directions were made.

49. On 21 March 2023 YSL issued an application for summary judgment on this claim. This was listed by Senior Master Fontaine to be heard at the trial by order dated 20 April 2023.

50. On 19 April 2023 the parties exchanged witness statements pursuant to an agreed extension. YSL served a statement from himself. The Defendant served a statement from Louis Lau, its data protection officer.

51. On 20 April 2023 the High Court, at the request of YSL, issued witness summonses to Dr SW and Dr DG. These were later set aside by consent.

52. As I have mentioned, on 29 May 2023 YSL sent by email in open correspondence draft amended Particulars of Claim. He sought the Defendant’s agreement to considerable amendments of the original PoC to include new allegations. The amended Particulars of Claim added allegations which substantially increased the page count from 28 to 46 pages. Some allegations were deleted, but the net effect was to increase the allegations pursued.

53. On 1 June 2023, about two weeks before this trial was listed to start, YSL sent a fifth letter of claim to the Defendant. This related to a letter said to have been sent by Dr DG 11 years earlier, in 2012. YSL said:

“I am writing to notify you of my intent to bring legal action against your organization for serious breaches of the Data Protection Act 1998 (DPA), misuse of private information, breach of confidentiality, and violation of Article 8 of the European Convention on Human Rights (ECHR). I believe your actions amount to unlawful sharing and covert collection of my personal data without my knowledge or consent.

My entitlement to remedies stems from your violation of the aforementioned statutes and rights. Specifically, I recently became aware of a letter ‘dispatched’ by [Dr DG] on 8th June 2012 and ‘typed’ on 4th July 2012, sent to my General Practitioner, my mother, and my school. This letter, outlining personal, sensitive information about my mental and emotional health, academic progress, and family relationships, was shared without my consent or knowledge. These actions were taken within England and Wales, making it the most appropriate forum for this dispute. I am self-funding this litigation.”

54. In this letter YSL also said:

“Please note that I reserve the right to expand the claims once disclosure takes place and upon further investigation of the circumstances surrounding this matter.”

55. YSL also complained about Surrey Police to the ICO. He complained that a risk assessment from August 2018 had been shared with both Surrey County Council and the Defendant. On 10 January 2022 the ICO concluded that Surrey Police had not acted contrary to data protection legislation. YSL requested a case review on 10 January 2022, which was unsuccessful, as communicated to him on 24 January 2022.

The present claim

The Claimant’s claim in summary

56. The Claim Form states that YSL’s claim is for:

“Damages (including aggravated damages) for breaches of the Claimant's article 8 human rights, misuse of private information, breaches of the Data Protection Act 1998 and 2018 and breach of the GDPR and UK GDPR.

An Injunction to restrain the Defendant, whether by itself, its officers, servants or agents, or otherwise howsoever, from processing information about or relating to the Claimant.

Such further or other relief as is just and appropriate.”

57. The main allegations in the PoC and in YSL’s trial witness statement of 19 April 2022 are as follows:

a. Letters were sent by Dr SW and Dr DG to several parties including his GP, family and/or school without his knowledge or consent, which were used by his school to degrade and discredit abuse perpetrated by the school on him (PoC, [11]- [17]; witness statement, [13]). The relevant paragraphs of the PoC state:

“11. The Defendant, whilst the DPA 1998 was in force, collected, compiled, stored and disseminated the Claimant’s personal data and information relating to (or purporting to the relate to) the Claimant.

12. This included letters by [Ms JW] and [Mr DG], which were sent to several parties including the Claimants GP, Family and/or school. This was done without the Claimants knowledge or consent. Pending full disclosure, the precise extent of publication and republication of the letters is unknown.

13. At the time the Claimant was not presented with a privacy notice, nor did they agree for their information and data to be processed.

14. There were several consent forms signed by the Claimants mother.

15. Pending full disclosure, the Claimant will argue that the fact the trust sought to have consent forms signed demonstrates that the Defendant was using consent as a basis for their processing.

16. [Ms JW] and [Mr DG] not only processed, collected and shared personal information and data, they failed to ensure the accuracy of said information and data and included several degrading and crass comments of their own.

17. [Ms JW] and [Mr DG]’s letters were also used by the Claimants School to degrade and discredit abuse perpetrated by the School on the Claimant.”

b. Dr DG had a call with [LL] at YSL’s school (witness statement, [15]):

“15. I was then aware of a man, [DG], doing similar things to [JW]. I think I spoke to him once briefly. I then subsequently found out that he had sent a letter to my GP, mother and school without my consent or knowing. When dealing with my school, as part of a subject access request it showed that [LL] (deputy head at [YSL’s School] had sent an email say that she had a call with [DG] and he ‘confirmed’ asperges and increased obsessional behaviour.”

c. Per [16] of the PoC:

“16. [Ms JW] and [Mr DG] not only processed, collected and shared personal information and data, they failed to ensure the accuracy of said information and data and included several degrading and crass comments of their own.”

d. The Defendant had four risk assessments on its system completed by officers from Surrey Police (PoC, [21]) and failed to adhere to the Surrey MAISP (Multi Agency Information Sharing Protocol (PoC, [26]). The risk assessments contained information to the effect, for example, that YSL had assaulted his mother; that he had undiagnosed mental health issues; and that he had become obsessed by what information different agencies held about him.)

e. The Defendant should have, but has failed, to erase his entire medical records because their ongoing retention for 20 years is unlawful as it is a disproportionate interference with his rights under Article 8 (PoC, [57]-[63].

The Defendant’s Defence in summary

58. The Defendant defends the claim on the following basis.

59. It denies that it has acted unlawfully in relation to the processing and retention of YSL’s personal data. Insofar as allegations are made about the actions of Surrey Police or other third parties, these do not concern the Defendant, and the Defendant is not responsible for them.

60. It is denied that the Defendant acted unlawfully in relation to YSL’s data because, in summary:

a. the Defendant had a lawful basis under the relevant data protection legislation for processing it;

b. the processing of the data was necessary for the exercise and provision of the Defendant’s functions in relation to the provision of healthcare and maintenance of public health;

c. further or alternatively, the Defendant had a legitimate interest in processing the Claimant’s data for the purpose of its public health duties and/or the provision of healthcare;

d. the information shared was reviewed and assessed by the Defendant to ensure the appropriateness of the information being shared;

e. the processing and retention of the Claimant’s data has been carried out in accordance with the NHSX’ Records Management Code of Practice 2021 (NHSX Code) and the Defendant’s Data Protection Policy. (NHSX was a Government unit from 2019 to early 2022, with responsibility for setting national policy and developing best practice for NHS technology, digital and data, including data sharing and transparency.)

61. In relation to alleged unlawful processing of data under the DPA 2018, the EU GDPR and/or the UK GDPR, YSL is required to prove [38]-[42] of the PoC. These aver:

“38. The Defendant, whilst the DPA 2018 and the GDPR or the UK GDPR were in force, collected, compiled and stored the Claimant’s personal data and information relating to (or purporting to the relate to) the Claimant. The processing includes those relating to:

(a) Surrey Police reference […] authored by [PC M];

(b) Surrey Police reference unknown authored by [PC F].

39. The obtaining of information (unlawfully and without the Claimant’s knowing) was not an isolated incident but rather a continuous and chronic course of conduct that has gone on for over a decade.

40. Further or alternatively, the Defendant has breached the Claimant’s right to data protection as set out in Article 8 of the EU Charter of Fundamental Rights (the ‘Charter’), the GDPR, the UK GDPR and DPA 2018:

(a) the information and data constituted the Claimant’s personal data pursuant to Article 4 (1) of the GDPR and the UK GDPR and section 5 of the DPA 2018 since they were, or they contained or claimed to contain, information relating to the Claimant;

(b) the compilation, adaptation, dissemination, disclosure, making available and storage of the Claimants data and information constitute the processing of the Personal Data by the Defendant within the meaning of Article 4 (2) of the GDPR and the UK GDPR and section 4 and 5 of the DPA 2018;

(c) the Defendant was the data controller within the meaning of Article 4 (7) of the GDPR, the UK GDPR and section 5 and 32 (1) (a) of the DPA 2018 in respect of each of these processing operations;

(d) in obtaining and storing the Claimants personal data and information, the Defendant has failed and continues to fail to process the Personal Data in compliance with the GDPR, the DPA 2018 and the UK GDPR and has failed to give effect to the Claimant's rights under the GDPR, the DPA 2018 and the UK GDPR;

(e) by processing the Claimant’s personal data as aforesaid, the Defendant acted in breach of its statutory duty pursuant to Article 5 of the GDPR and the UK GDPR and section 34 of the DPA 2018 to process the Claimant’s personal data and information in accordance with the data protection principles set out in the GDPR and the UK GDPR. In particular, in breach of Article 5 (1) (a) of the GDPR and the UK GDPR and section 34 (1) (a) of the DPA 2018, the Defendant’s processing was unlawful and unfair:

(1) the Claimant did not consent to the sharing of their personal data;

(2) there was no other lawful basis for processing and obtaining of the Claimant’s personal data pursuant to Article 6 of the GDPR and the UK GDPR or section 35 of the DPA 2018. In particular, the processing did not serve a legitimate interest of the Defendant, or any third party nor was it shared for law enforcement purposes. Further, even if (which is denied) such a legitimate interest or lawful basis existed, it was overridden by the interests and fundamental rights of the Claimant.

(3) the processing was manifestly unfair and was not transparent. At no stage prior to the processing was the Claimant informed as to what would be taking place in respect of their personal data and information. It will be inferred that this was a deliberate decision taken by the Defendant in order to prevent the Claimant from having the opportunity to object.

41. The Defendant failing to inform or gain consent from the Claimant as to what would be taking place in respect of their personal data and information, meant the Claimant was unable to exercise their rights as stated in paragraph 36, 36(a), 36(b), 36(c), 36(d), 36(e), 36(f), 36(g), 36(h), 36(i), 37, 37(a), 37(b), 37(c), 37(d) and 37(e). It will be inferred that this was a deliberate course of action taken by the Defendant in order to cause a detriment to the Claimant.

42. Paragraph 24, 25 26, 26(a), 26(a)(i), 26(a)(ii), 26(a)(iii), 26(a)(iv), 26(b), 26(c), 28, 30 and 30(a) is repeated.

Particulars

(a) In breach of Article 5 (1) (a) of the GDPR and the UK GDPR and section 34 of the DPA 2018, the Defendant has failed to process the Personal Data lawfully or fairly. The Claimant will rely in particular on the following facts and matters:

[Omitted]”

62. As above, insofar as allegations are made against or concerning the actions of Surrey Police or other third parties, these do not concern the Defendant and so the Defendant is not responsible for them.

63. Further, it is denied that the Defendant acted unlawfully in relation to YSL’s data because:

a. the Defendant had, and has, a lawful basis for processing it;

b. processing of the data was and is necessary for health or social care purposes and/or for public health purposes in the public interest;

c. processing of the was and is necessary for the performance of a task carried out in the public interest or in the exercise of official authority;

d. processing of the was and is also necessary for the purposes of carrying out the Defendant’s obligations in the field of social protection law;

e. further or alternatively, the Defendant had and has a legitimate interest in processing the data for the purpose of its public health duties and/or the provision of healthcare;

f. processing and retention of the was and is in accordance with the NHSX Code and the Defendant’s Data Protection Policy;

g. processing and retention of the data was and is required in relation to the Defendant’s liability insurance for the investigation and defence of complaints and legal claims;

h. the data held by the Defendant about YSL are not inaccurate insofar as they record the opinions of professionals at the material time.

64. In relation to the alleged misuse of private information, [44] of the PoC appears to concern ‘information provided by the Claimant to Surrey Police’. It avers under the heading ‘Misuse of Private Information’:

“44. Further or alternatively, the information and data processed by the Defendant is self-evidently private and confidential and/or fall within the scope of the Claimant’s private and family life, home and correspondence under Article 8 of the ECHR; alternatively, the Claimant had a reasonable expectation that the information obtained and data processed by the Defendant were private and would remain so. In further support of this contention, the Claimant will rely upon the following facts and matters:

(a) any information provided by the Clamant to Surrey Police was obviously provided with Clamant believing that they had a reasonable expectation of privacy and confidentiality;

(b) further, the information and data purports to convey the Claimant’s deepest and most private thoughts, feelings and information about their life; and

(c) the Claimant intended the any information about them to be and remain private, and certainly did not expect it to be published and distributed to multiple third parties and stored on the Defendant’s systems, without any warning.”

65. As above, the Defendant says that is not responsible for the acts or omissions of Surrey Police.

66. Insofar as it is alleged by [44] to [51] that the Defendant has misused YSL’s, this is denied for the reasons in [12] and [16] of the Defence.

67. In relation to YSL’s alleged exercise of his data protection rights, he is required to prove [52]-[54] of the PoC. These provide:

“52. The Claimant wrote to the Defendant on 08 September 2021 to activate and pursue his right to object in line with Article 21 GDPR and UK GDPR.

53. In breach of Article 12(4) the Defendant failed to respond or action the request without delay and at the latest within one month of receipt of the request.

54. in breach of Article 12(4) of the GDPR and UK GDPR, when determining not to take action following the Claimant’s requests set out in his email dated 08 September 2021, the Defendant did not inform the Claimant of how their interests outweighed the Claimant’s for not taking action in response to his requests, or of the possibility of lodging a complaint with a supervisory authority and seeking a judicial remedy.”

68. The Defendant has lawful grounds for the processing and retention of YSL’s data as set out in [12] and [16] of the Defence. The Defendant is unable to erase the Claimant’s data for the reasons in [16(f) and (g)] of the Defence:

“(f) Processing and retention of the Claimant’s data was and is in accordance with the NHSX Records Management Code of Practice and the Defendant’s Data Protection Policy.

(g) Processing and retention of the Claimant’s data was and is required in relation to the Defendant’s liability insurance for the investigation and defence of complaints and legal claims.”

69. The Defendant has confirmed to YSL that it will add a notification to his electronic patient record to reflect his request, and investigate applying the restricted record process, which decision must be made by a clinician. This process is underway (see Defence, [20(c)].

70. In relation to YSL’s complaint about retention of data for 20 years, the Defendant denies the retention is or was unlawful for the same reasons as earlier.

71. Paragraphs 59 to 63 of the PoC are denied. These provide:

“59. 20 years is unquestionable an enormous amount of time for the Claimant’s information and data to processed.

60. The Defendant has not provided a legitimate reason, and which overrides the interests of the Claimant or justifies such a long interference of Claimant’s private life. Reason[s] for the 20-year retention of the Claimant’s data have included:

(a) that the service is open to the Claimant;

(b) the NHSX Code of Practice retention of these records will be retained for 20 years after last contact.

61. Having a retention schedule do[es] not in itself cause it to be necessary to retain data.

62. The Claimant or a reasonable [person] would have never expected retention for such a long period of time without warning.

63. Without prejudice, to the fact that the data processed is inaccurate or the accuracy has been challenged. Storing data for two decades will keep the information accurate or give a picture of the persons current life so further breeches the Accuracy Principal of the GDPR and UK GDPR.”

72. They are denied because:

a. the Defendant’s services are open to YSL and retention of his data is necessary for health or social care purposes;

b. the Defendant’s retention period is in accordance with national NHS policy, namely the NHSX Code.

73. In relation to remedies, damages for ‘damage to [the Claimant’s] autonomy and integrity’ and ‘[loss of] control over [his] personal data’ are irrecoverable.

74. The Claimant has, in any event, failed to plead reliance on any expert medical or other evidence in relation his alleged anxiety and distressed. Such issues are not made out.

75. The Defendant will contend that such loss and damage as the Claimant may prove is attributable to the Defendant’s acts or omissions is de minimis.

76. Hence, the Defendant denies the Claimant’s claim is denied in its entirety.

77. YSL filed and served a Reply dated 11 July 2022 but I do not think I need to set out the details.

The Defendant’s strike-out/summary judgment application

78. The Defendant seeks to strike out YSL’s claim as an abuse of the court’s process and/or because of YSL’s conduct, under CPR r. 3.4(2)(b), on the grounds that:

a. The entire claim alternatively substantial parts of it were compromised by the settlement reached between YSL and the Defendant in November 2016;

b. Further or alternatively, the claim is an abuse of process on the grounds that YSL could and should have brought all his claims in 2016, on the basis of Henderson v Henderson (1843) 3 Hare 100 and Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1;

c. In any event, this claim and/or YSL’s conduct has been and is vexatious and is therefore abusive and likely to obstruct the just (and specifically the final) disposal of the claim.

79. Further, any allegations which might survive the abuse of process application should be:

a. Struck out under CPR 3.4(2)(a) and/or summarily dismissed under CPR r 24.2 because YSL has no real prospect of success and there is no other compelling reason for the case or any issue to be disposed of at trial;

b. Anything remaining should be struck out under CPR 3.4(2)(a) as being too vague.

80. Developing these grounds further, the Defendant submitted as Ground 1 that the claim is an abuse of process due to the November 2016 compromise. It argues that by entering into that compromise:

a. YSL expressly compromised all potential claims involving disclosure of his personal information by CAMHS.

b. YSL expressly compromised all potential claims involving Dr JW and Dr DG whilst under their care in 2011 and 2012.

c. YSL impliedly compromised any claim relating to alleged inaccuracies of his records. YSL raised inaccuracies including with respect to his potential autism diagnosis in his letter of 17 June 2016, before the compromise.

d. YSL compromised any claim for the deletion of all his information by the Defendant. YSL raised this in the negotiations (his Part 36 offer of 29 July 2016) and Weightmans LLP stated it could not be actioned as a matter of law. By proceeding to settle, YSL thereby compromised this claim.

81. The Defendant’s Ground 2 is that, for any matters found not to have been compromised in 2016, they could and should have been brought in 2016 and so to bring them now is an abuse of process.

82. It is clear from his 17 June 2016 letter and his first formal letter of claim dated 6 September 2016 that he had access to his medical records in order to formulate those allegations. With reasonable diligence he could have brought all the allegations pursued in this claim in 2016 and so bring them now is an abuse of process on the basis of Henderson v Henderson (1843) 3 Hare 100 and Johnson v Gore Wood & Co (No 1) [2002] 2 AC 1. His failure to do so has meant that the Defendant has been repeatedly vexed by various proposed claims.

83. The Defendant’s Ground 3 is that the claim should be struck out because of YSL’s vexatious conduct. The Defendant relies on the detailed history as set out above as showing that YSL has engaged in a course of vexatious conduct against it, and has repeatedly pursued allegations against Drs SW and DG. He has sought termination of their employment for three years, and summonsed them in this claim despite having no valid basis for doing so. This has amounted to harassment as the Defendant has had to fight or respond to the same or very similar allegations over and over since 2015.

84. In her witness statement, Ms Golden said that this particular concern is demonstrated by YSL’s recent draft amended Particulars of Claim and his most recent (fifth) letter of claim dated 1 June 2023. She said this demonstrates that YSL has no intention of this claim being the final chapter in his pursuit of the Defendant. She said YSL clearly remains determined to litigate allegations going back many years.

85. The Defendant’s Ground 4 is that in any event the allegations have no merit. YSL has no realistic prospect of success on any of the allegations in this case, if they survive strike out on the other grounds. This is because:

a. His main pleaded complaint about inaccuracy of his CAMHS records relates to the clinical opinion that he might have autistic traits. Section 205 of the DPA 2018 provides that inaccurate means ‘incorrect or misleading as to any matter of fact’ (emphasis added). Thus, a clinical opinion on diagnosis cannot be challenged under the accuracy principle. In any event, he cannot now realistically hope to successfully challenge the accuracy of records from 2011 and 2012 given the passage of time.

b. Any processing by the Defendant of risk assessments received from Surrey Police was plainly lawful. This was in effect the conclusion of the ICO following YSL’s complaint.

c. His main complaint about ongoing retention of his patient records has no prospect of succeeding. The high point of his legal case is Article 8 of the ECHR, yet even if he could show an interference with his right under Article 8(1):

a. retention of his records would plainly be proportionate to two obvious legitimate aims under Article 8(2);

b. the aim of protecting health, an issue on which a margin of appreciation is enjoyed (see Chave v France, Application 14461/88);

c. the Trust’s need to defend itself from the threat of ongoing litigation from YSL. This is again demonstrated by YSL’s fifth formal letter of claim sent as recently as 1 June 2023;

d. in any event, there was a separate legal obligation to retain YSL’s records during the Independent Inquiry into Child Sexual Abuse, see Louis Lau’s trial statement at [21].

86. Nor does YSL have a realistic prospect of obtaining any remedy in this case because:

a. Even if he establishes liability in any respect, YSL has no real prospect of showing he is genuinely distressed by the matters in this claim, or distressed to an extent exceeding that for which he was already compensated by the 2016 settlement, so as to warrant an award of compensatory damages;

b. YSL has not properly particularized any claim for rectification of his records under Article 16 UK GDPR as he has not properly set out how he wishes he records to be rectified;

c. YSL cannot obtain erasure of his records as a result of the operation of Article 17(3) UK GDPR read with Article 9(3) UK GDPR, where processing is necessary for reasons of public interest in the field of health.

87. Finally, the Defendant’s Ground 5 is that any other relevant remaining allegations in the PoC are too vague to succeed and, in particular, YSL has failed to plead a proper case on how his records are inaccurate. He should have pleaded, first, the meaning of the records as to a matter of fact, and then set out why he says the records are factually incorrect. Further, other allegations of unlawful processing are not properly set out.

88. I turn to YSL’s response to the strike out application.

89. In his written submissions YSL complained about the lateness of the Defendant’s application. By the day of the hearing YSL had not been served with the exhibits to Ms Golden’s statement in support of the strike out application. I granted an adjournment on the first day of the hearing for that to be done, and for him to read them, which was acceptable to him. I am satisfied he had enough time. In fact, as well as being fully described in Ms Golden’s statement, I noted that in any event some of the exhibits were YSL’s own documents, eg, letters from him (including his letters of claim), or else were documents that he had seen before and had had for some years (eg the letter from Weightmans about the settlement agreement in 2016). None of them were very lengthy. As I have explained, they essentially narrated the contact between YSL and the Defendant over the years, which he is very familiar with.

90. YSL made some brief oral submissions but largely relied upon his witness statement of 13 June 2023 in response to the strike out application. I have read that witness statement carefully but do not intend to summarise it. I do note, however, his response to the Defendant’s argument about the 2016 settlement:

“19. The Defendant contends that I compromised any claim for the deletion of my personal information by the Trust when I agreed to a settlement in previous negotiations specifically stelling the “disclosure”. However, this interpretation overlooks significant aspects of the situation and the distinct nature of my current claim.

20. Firstly, the claim I am bringing now under the GDPR (namely the right to object and the principle of storage limitation) is different in nature and legal basis from the previous matters addressed in the negotiation. My current claim relates specifically to the ongoing storage and processing of my data without my knowledge or consent, a matter that I believe is in breach of my rights under the GDPR.

21. Moreover, it is essential to clarify that my acceptance of the settlement was based on the information and understanding available to me at the time. The Defendant's assertion that my claim could not be actioned as a matter of law was accepted in the context of those specific negotiations. It does not preclude my right to assert new or unaddressed claims under the changing landscape of data protection law, especially considering the significant changes brought by the GDPR.”

22. Therefore, the compromise reached during those negotiations should not be seen as a comprehensive settlement of all potential claims related to my data. My current claim under the GDPR is a separate issue that was not and could not have been fully addressed in the previous settlement.”

The trial and YSL’s summary judgment application

91. YSL opened the case primarily by reference to his Skeleton Argument and he wrapped up his summary judgment application within it; as I have said this is largely a repeat of the merits of his claim as he sees them. He then adopted his witness statement of 19 April 2023 as his evidence in chief. There was no substantive cross-examination. That was YSL’s case.

92. Turning to the Defendant’s case, Mr McCracken called Louis Lau, who is the Defendant’s data protection officer. He adopted his witness statement of 18 April 2023 as his evidence in chief.

93. He was then cross-examined by YSL.

94. Mr Lau was asked to elaborate upon the balancing exercise that was undertaken in relation to the obtaining of his data from Surrey Police. He said they were relying on the data protection legislation, and that the Defendant had not sought the information but that it had been sent by the police via MASH. He said therefore they did not need to do any balancing act. He said what was received had been in the nature of referrals to the Defendant (although he stressed he was not a clinician). They were uploaded to the Defendant’s system (called System One) upon receipt. He said they needed to get information in order to ‘reveal an assessment’ (ie, for assessment purposes).

95. He said that he considered that uploading had complied with the first data protection principle in the GDPR. The data had been stored for the clinicians to process it. The Defendant was providing care. It was transparent because at the time there was the Defendant’s Privacy Notice which was publicly available. He said that the GDPR did not apply at the time the information was received, it was the DPA 1998 (which only refers to unlawful and fair). He agreed there should be transparency. There would have been leaflets and a notice on the Defendant’s website about data handling.

Discussion

96. I have carefully read the necessary written materials, including in particular YSL’s witness statements and his Skeleton Argument. Both sides’ cases are clearly articulated. My failure to mention a particular point in this judgment does not mean that it has been overlooked.

Preliminary

97. For reasons which will become clear, I think it is relevant to note at the outset by that on his own case, YSL has continuing mental health difficulties. I will not set out the details: they are fully described in the evidence and in YSL’s Skeleton Argument. YSL is receiving ongoing treatment for them. In significant part he blames the Defendant for them. The Defendant denies any responsibility for YSL’s health issues.

The Defendant’s strike-out/summary judgment application

98. As I have said, the Defendant has applied to strike out the Claimant's claim, and/or for summary judgment, pursuant to CPR r 3.4(2)(a) and (b) and/or CPR r 24.2 respectively. These provide:

“3.4

(1) In this rule and rule 3.5, reference to a statement of case includes reference to part of a statement of case.

(2) The court may strike out a statement of case if it appears to the court –

(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;

(b) that the statement of case is an abuse of the court's process or is otherwise likely to obstruct the just disposal of the proceedings;

…

24.2 The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if –

(a) it considers that –

(i) that claimant has no real prospect of succeeding on the claim or issue …"

99. The test to be applied on a summary judgment application is well-known. In EasyAir Limited v. Opal Telecom Limited [2009] EWHC 339 (Ch), [15], Lewison J (as he then was) said:

“1. The court must consider whether the [respondent to the summary judgment application] has a 'realistic' as opposed to a 'fanciful' prospect of success.

2. A 'realistic' [statement of case] is one that carries some degree of conviction. This means a [case] that is more than merely arguable.

3. In reaching its conclusion the court must not conduct a 'mini-trial'.

4. This does not mean that the court must take at face value and without analysis everything that [the respondent] says. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents.

5. However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial.

6. Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without a fuller investigation into the facts at trial than is possible or permissible on an application for summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.

7. On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction.”

100. For examples of recent cases where these principles have been applied, see eg, ArcelorMittal North America Holdings LLC v Ravi Ruia et al [2022] EWHC 1378, [26]-[28]; JJH Holdings Ltd v Microsoft [2022] EWHC 929 (Comm), [11]; and WWRT Limited v Zhevago [2024] EWHC 122 (Comm), [59].

101. There is an overlap between the test for real prospect of success under CPR r 24.2 and CPR r 3.4(2)(i)(a) and (b): see White Book 2023 at 3.4.21, where it is noted that the Court of Appeal has taken the view that if the particulars of claim disclose no reasonable grounds for bringing the claim, then they also show no real prospect of success.

102. I begin with the question of whether and/or to what extent the present claim is an abuse of process by reason of the settlement reached between the parties in 2016. If the claim or any part of it is so covered then it will be abuse of process.

103. It is trite law which needs little authority that a party cannot sue on a cause of action which he has effectively compromised (or which has been the subject of a prior judgment by a court of competent jurisdiction). I will, however, quote passages from Lord Bingham’s speech in Johnson, a case relied on by the Defendants.

104. In that case the plaintiff, Mr Johnson, a businessman, conducted his affairs through a number of companies, including WWH Ltd, in which he owned all but two of the shares. WWH Ltd sued its former solicitors (Gore Wood (GW)) for professional negligence in connection with a transaction, the litigation eventually being settled. Mr Johnson then sued GW in his own name, on essentially the factual basis for the same alleged negligence as in the first claim, but for different losses. GW sought to strike out the action as an abuse of process, and the case ended up in the House of Lords. Lord Bingham said at pp22-23:

“GW contends that Mr Johnson has abused the process of the court by bringing an action against it in his own name and for his own benefit when such an action could and should have been brought, if at all, as part of or at the same time as the action brought against the firm by WWH. The allegations of negligence and breach of duty made against the firm by WWH in that action were, it is argued, essentially those upon which Mr Johnson now relies. The oral and documentary evidence relating to each 23action is substantially the same. To litigate these matters in separate actions on different occasions is, GW contends, to duplicate the cost and use of court time involved, to prolong the time before the matter is finally resolved, to subject GW to avoidable harassment and to mount a collateral attack on the outcome of the earlier action, settled by GW on the basis that liability was not admitted.

This form of abuse of process has in recent years been taken to be that described by Sir James Wigram V-C in Henderson v Henderson 3 Hare 100 , 114–115:

‘In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’

Thus the abuse in question need not involve the reopening of a matter already decided in proceedings between the same parties, as where a party is estopped in law from seeking to relitigate a cause of action or an issue already decided in earlier proceedings, but, as Somervell LJ put it in Greenhalgh v Mallard [ 1947 ] 2 All ER 255, 257, may cover:

‘issues or facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.’”

105. The passage from Henderson quoted by Lord Bingham has become known as ‘the rule in Henderson v Henderson.’ Lord Bingham said at p32:

“The second subsidiary argument was that the rule in Henderson v Henderson 3 Hare 100 did not apply to Mr Johnson since the first action against GW had culminated in a compromise and not a judgment. This argument also was rightly rejected. An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, indeed, that outcome would make a second action the more harassing.”

106. I quoted the settlement agreement earlier and will come back to it in a moment. The approach to its interpretation is as follows. In Bank of Credit and Commercial International SA v Ali [2002] 1 AC 251, [8], Lord Bingham said:

“In construing this provision, as any other contractual provision, the object of the court is to give effect to what the contracting parties intended. To ascertain the intention of the parties the court reads the terms of the contract as a whole, giving the words used their natural and ordinary meaning in the context of the agreement, the parties’ relationship and all the relevant facts surrounding the transaction so far as known to the parties. To ascertain the parties’ intentions the court does not of course inquire into the parties’ subjective states of mind but makes an objective judgment based on the materials already identified.”

107. I consider the following matters to be clear, and I so find, from the correspondence leading up to the settlement agreement as referred to in Ms Golden’s witness statement:

a. by then he had made at least one SAR for his medical records, and had had access to them, which enabled him to frame his claim;

b. his primary complaint was that Drs SW, DG and SM had done various things without his knowledge or consent including conducting an autism assessment; disclosing information to his school, GP and mother; and had referred to him having ‘obsessional tendencies’;

c. he also complained his records were inaccurate and he wanted them erased.

108. The key point arising from the settlement, it seems to me, is that YSL was compromising all claims that he may have arising out of the disclosure of his personal information by staff working in the Defendant’s CAMHS, including by Drs SE and DG whilst he was under their care. The reference to ‘staff’ meant disclosure by ‘any staff’, and not just disclosure by Drs SW and DG - hence the use of the word ‘including’.

109. I therefore find the parts of the current claim which relate to the alleged illegality of such disclosures are an abuse of process. YSL gave up his right to sue on them in return for a payment of £6,000. The relevant paragraphs of the PoC in which the abusive disclosure claim is pleaded are: [7] (‘The Defendant has shared information and data about and from the Claimant to third parties …); [11], in respect of dissemination; and [12]-[18]. The following paragraphs of YSL’s trial witness statement are linked to this abusive disclosure claim, and so the disclosure complaints within them are also struck out as an abuse of process: [6]-[16]; [18];

110. For the avoidance of doubt, in my judgment the agreement also covers the subject matter of YSL’s fifth letter of claim of 1 June 2023, in which he wrote:

“My entitlement to remedies stems from your violation of the aforementioned statutes and rights. Specifically, I recently became aware of a letter ‘dispatched’ by [Dr DG] on 8th June 2012 and ‘typed’ on 4th July 2012, sent to my General Practitioner, my mother, and my school. This letter, outlining personal, sensitive information about my mental and emotional health, academic progress, and family relationships, was shared without my consent or knowledge. These actions were taken within England and Wales, making it the most appropriate forum for this dispute. I am self-funding this litigation.”

111. Because of the lack of specificity in the PoC, I am not entirely clear whether this letter is one of the ones referenced in [12], [16] and [17] of the PoC, in which YSL complained about:

“12. … letters by [Dr SW] and [Dr DG], which were sent to several parties including the Claimants GP, Family and/or school. This was done without the Claimants knowledge or consent. Pending full disclosure, the precise extent of publication and republication of the letters is unknown.

…

16. [Dr SW] and [Dr DG] not only processed, collected and shared personal information and data, they failed to ensure the accuracy of said information and data and included several degrading and crass comments of their own.

17. [Dr SW] and [Dr DG]’s letters were also used by the Claimants School to degrade and discredit abuse perpetrated by the School on the Claimant.

18. [Dr SW] also made repeated reference the claimant being autistic, a claim which she [shared] and distributed to multiple parties, but never directly to the Claimant. [Dr SW]’s unlawful and unethical conduct has led to not only continues distress, but also negatively affected the Claimants family relationships, quality of education and development.”

112. Leaving aside how it is that YSL says he only became aware of the 8 June 2012 letter around 2023, when (as I have noted) he has made SARs many years previously and has long since obtained his records, any claim which YSL might try to make arising out of this letter from Dr DG in 2012 falls squarely within the terms of the 2016 compromise and would be an abuse of process.

113. However, it is plain from the wording that the agreement only applied to claims or potential claims arising out of the disclosure of YSL’s data by CAMHS staff - as opposed to other forms of data processing by the Trust, for example, the retention of YSL’s records or its processing of Surrey Police’s risk assessments.

114. I therefore reject the Defendant’s submission that the compromise can be read as including claims of illegality relating to these other forms of data processing. Whilst these had been raised by YSL in correspondence, they did not fall within the terms of what eventually was agreed between him and the Defendant.

115. The Defendant submitted in its Closing Submissions on this aspect of the case at [6]:

“6. The Trust therefore submits that:

(i) The parties intended to compromise ‘all claims’ in relation to disclosure to third parties by CAMHS staff, which included all claims YSL had already raised in correspondence and all other such claims he may have had at that time which included claims he may reasonably have had in his contemplation by that point in time. That includes claims he could have discovered or made with reasonable inquiries such as SARs and/or requesting his GP, school, local authority records etc.

(ii) There was an implicit compromise of the inaccuracy allegations.

(iii) There was an implicit compromise of the claim for erasure of his records. YSL accepted a financial settlement with no agreement on erasure.”

116. For the reasons I have given, I agree with (i), but I reject (ii) and (iii).

117. I turn to the Defendant’s alternative strike-out argument based upon Johnson (Closing Submissions, [7] et seq).

118. The court applies a broad merits-based approach when considering this species of abuse of process. Lord Bingham set out the test at p31 of Johnson:

“The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”

119. This type of abuse applies to settlement agreements as well as judgments, as I explained earlier.

120. In his Closing Submissions at [9], Mr McCracken helpfully set out in tabular form why and on what basis the Defendant says that the allegations made by YSL in this claim fall to be struck out as barred by the 23 November 2016 compromise (expressly or by implication); on the basis of Johnson style abuse, or for the other reasons given in the third column of the table below (I have added numbers to each row for ease of reference):

Allegation

Bundle Reference(s)

Short reasoning of Defendant Trust

1. Letters by JW and DG were sent to several parties including the Claimant’s GP, Family and/or School. This was done without consent or knowledge.

PoC, [12] [CMB-B27]

PoC, [16] [Ibid]

Covered by express wording of compromise. No date is given but must be 2011 or 2012.

In any event, any allegations against JW and DG could and should have been brought by November 2016 so an abuse on the broad merits test.

2. JW and DG’s letters used by the Claimant’s School to degrade him.

PoC [17] [CMB-B28]

Same as above.

3. JW and DG failed to ensure accuracy and included degrading and crass comments.

PoC [16] [CMB-B28]

Covered by implied settlement of accuracy complaint.

In any event, any allegations against JW and DG about accuracy could and should have been brought so an abuse on the broad merits test.

Lack of particularity and clarity.

4. JW made repeated references to the Claimant being autistic.

PoC [18] [CMB-B28]

Same as above.

All references to a potential autism diagnosis are on a fair reading of the records expressions of comment, opinion, or evaluation.

5. The Defendant uploaded Surrey Police 38/29 [risk assessment] forms to its system

PoC [21](a) (b) and (c) [CMB-B28]

It is accepted [21(d)] post-dates the compromise.

If there is any allegation of third party disclosure here, it is caught by the express wording of the compromise.

In any event, any allegations could and should have been brought so an abuse on the broad merits test.

6. JW sent an autism questionnaire to YSL’s School on 4 April 2011.

YSL trial witness statement (W/S) [6] [CMB-D83]

Covered by express wording of compromise as an allegation against JW from 2011.