High Court compels Defendants to make a Subject Access Request

July 9, 2020

The High Court has made an order compelling two Defendants to make a Subject Access Request to retrieve copies of documents that are potentially relevant to ongoing proceedings.

Mark Cawson QC and Tom Longstaff currently act on behalf of Porter Capital Corporation, an American company which specialises in commercial finance, in proceedings brought pursuant to section 423 of the Insolvency Act 1986 against (1) Zulfikar Masters, (2) Zabeen Masters, and (3) Chesterfield Trust Company Limited.

In an application made following disclosure, the Claimant sought an order compelling the First and Second Defendants to submit a SAR to their bank. The purpose of the application was to obtain copies of documents that had not been disclosed in the proceedings to date, and which the Claimant argued was likely to reveal statements made by the First and Second Defendants regarding the ownership of their assets.

Section 45 of the Data Protection Act 2018 provides that a data subject is entitled to obtain from a data controller confirmation of whether or not personal data is being processed, and is also entitled to access such personal data.

Prior to the application, the First and Second Defendants had refused to make a SAR and also opposed the Claimant’s application at the remote video hearing on 2 July 2020.

In support of its application, the Claimant contended that the documents a party has the power to obtain includes documents that can be retrieved using a SAR, and relied on authorities from the Irish High Court.

Leading Counsel for the First and Second Defendants argued that this was a case which had been subject to the Disclosure Pilot, and that compelling individuals to make a SAR was not a proportionate step at this stage of the litigation.

In acceding to the Claimant’s application, the Vice-Chancellor, Mr Justice Snowden, made an order compelling the First and Second Defendants to make a SAR, and considered that the objectives of paragraph 6.4 of PD51U would be met by such an order.

Mr Justice Snowden considered that a request to a data controller for the disclosure of personal data belonging to the First and Second Defendants was both reasonable and proportionate, and that the relevant factors include the:

1. Complex nature of the proceedings;
2. Likelihood that the requested documents would have probative value in supporting or undermining a party’s case; and
3. Minimal cost to the First and Second Defendants in making a SAR.

It is considered that this is the first time that the English High Court has made an order compelling an individual to make a SAR in response to an application by another party to the litigation.

Mark Cawson QC and Tom Longstaff were instructed by Jonathan Berkson of Bermans.