The Keoghs casualty Public Sector Team acts for various government departments, one of which is His Majesty’s Prison and Probation Service (HMPPS). We recently succeeded in a complicated Data Breach claim from a prisoner.
The claimant (MA), a prisoner, was moved to the segregation unit of the prison. He claims he was moved for his own safety after informing on some other prisoners in relation to potential terrorist activities. Opposite his cell was an inmate with a similar name to his (MM).
MM called out to the claimant to say he had been delivered his mail in error. MM then passed this mail to an Officer, who passed it on to the claimant.
The claimant claimed for breach of the Data Protection Act 2018 and Data Protection Principles under GDPR due to the mail containing the personal information of his wife and daughter, including photographs. He claimed damages and significant distress due to the fact that MM was a convicted sex offender and may have used the material inappropriately.
HMPPS admitted passing the letters to the incorrect prisoner in error, due to the similar names. However, it was denied that the claimant suffered damage or distress above a de minimis level.
We argued that it appeared MM simply looked at the name, noticed the mail was not his, and handed it back.
HMPPS offered the claimant £500 for the inconvenience. He declined this and went to trial claiming £12,000 for distress and trauma.
At the trial, the claimant argued that his status as an informant was a special fact, raising the breach above the anodyne and meaning any disclose of even basic information was more significant in his case as it was valuable to prisoners, who may have wanted revenge for him being an informant. On cross examination it turned out there was very little evidence that prisoners knew of the claimant’s status as an informant and he in fact asked to be placed in segregation himself. Importantly, there was no evidence that MM knew he was an informant and therefore no evidence MM would have seen any extra ‘value’ in having the personal information of the claimant.
The judge sympathised that any parent who became aware of a photograph of their children being handed to a sex offender would have obvious concern. However, he noted that context is key. The claimant’s request to HMPPS to save any CCTV from 3:50pm on the day of the incident, along with his acceptance that the mail was passed to him at around 4:00pm that day, showed a window of a maximum of 10 minutes where MM was in possession of the letters. There was no evidence that MM had actually opened or otherwise ‘used’ the mail. Our argument was that any damage was hypothetical and the claimant’s perceived risk from MM was remote.
The judge dismissed the claim, ruling that the claimant was unable to prove distress or psychiatric damage above a de minimis threshold and that evidence of psychiatric injury was not proven to the civil standard. In the judgment the judge noted there was an “extremely limited period for MM to do anything with the documentation – he appears to have had it momentarily”.
The judge went on to award Keoghs our costs inclusive of the London weighting of £11,146.37 plus VAT.
A good result for HMPPS and Keoghs because it highlights the common tactics of prisoners using emotional and hypothetical scenarios to form a claim, especially litigants in person. It is important to form a robust defence based on facts and not get caught up in the emotion of what could have happened.
Khuram Ahmed
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