Dillon v Irish Life Assurance Plc

• Jurisdiction: Ireland
• Judge: Mr. Justice Barry O'Donnell
• Judgment Date: 11 April 2024
• Neutral Citation: [2024] IEHC 203
• Court: High Court
• Docket Number: [2022 No. 79 CA]

Between

Patrick Dillon

Appellant/Plaintiff

and

Irish Life Assurance Plc

Respondent/Defendant

[2024] IEHC 203

[2022 No. 79 CA]

THE HIGH COURT

JUDGMENT of Mr. Justice Barry O'Donnell delivered on the 11th day of April, 2024 .

INTRODUCTION

1 . This is an appeal from a decision of the Dublin Circuit Court dated 3 May 2022 in which the Court dismissed the plaintiff's proceedings on the grounds that they were frivolous, vexatious or bound to fail. The decision of the Circuit Court was in response to a motion brought by the defendant seeking to have the proceedings struck out because the plaintiff had not obtained an authorisation from the Personal Injuries Assessment Board (“ PIAB”) and/or an order pursuant to section 10(3) of the Civil Liability and Courts Act 2004.

2 . The arguments in this appeal covered a range of matters relating to the potential interaction between the Personal Injuries Assessment Board Act, 2003, as amended, (“ the Act of 2003”) and claims under Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ 2016 L 119/1 (“ the GDPR”) which is implemented by the Data Protection Act 2018. However, the essential point in this appeal is whether the claims made by the plaintiff that he suffered “ distress, upset, anxiety, inconvenience, loss and damage” because of alleged breaches of his data rights and for which he claims damages, constitute a “ civil action” for the purposes of the Act of 2003. If the plaintiff's case is a “ civil action” then he was required to seek and obtain prior authorisation for the proceedings from the PIAB.

3 . In approaching this application, I am guided by the principle that the jurisdiction to strike out proceedings should be exercised with care and only in clear cases, as emphasised by McCarthy J. in Sun Fat Chan v. Osseous Ltd [1992] 1 IR 425.

BACKGROUND

4 . The underlying proceedings were commenced by way of an Equity Civil Bill dated 14 June 2021. The plaintiff was the owner of a life assurance policy with the defendant. The gravamen of the plaintiff's complaint was that the defendant had unlawfully and incorrectly sent letters containing the plaintiff's personal data to an unauthorised third party. In total, it appears that six letters concerning his policy were issued in error and sent to the third party. Those letters were sent on 23 May 2020, 25 May 2019, an unspecified date in May 2009, 25 December 2008, 25 September 2008, and on an unspecified date in May 2008.

5 . The plaintiff pleads the above matters amounted to data breaches and were caused by the negligence and breach of duty, including breach of statutory duty on the part of the defendant. Paragraph 7 of the Equity Civil Bill sets out particulars of negligence and breach of duty, including breach of statutory duty. Because of the range of dates on which the breaches are alleged to have occurred, the plaintiff in his pleadings relies on the provisions of both the Data Protection Acts 1988 and 2003, and the GDPR. In his submissions in connection with this appeal, the plaintiff has narrowed his claim to data breaches that are alleged to have occurred after the introduction of the GDPR, on 25 May 2018. This judgment proceeds on the basis that the claims, therefore, relate to the breaches after 25 May 2018, even if no formal motion was brought to narrow the claim in that way.

6 . The pleaded consequences of the data breaches alleged are set out at various points in the Equity Civil Bill. At para. 4, it is stated that the breach caused “ distress, upset, anxiety, inconvenience, loss and damage to the plaintiff”. The same formulation – distress, upset anxiety, inconvenience, loss and damage – is also used at paras. 5, 6 and 10 of the Equity Civil Bill. The plaintiff claims the following substantive relief:-

• “ 1. A declaration that the Defendant breached the Data Protection Acts 1988 & 2003 and or the General Data Protection Regulation (EU) 2016/679, as applicable, in the opinion of this Honourable Court.

• 2. Damages for negligence and breach of duty including statutory duty, not exceeding the jurisdiction of this Honourable Court.”

7 . On 26 October 2021, the defendant raised a Notice for Particulars. The particulars were replied to on 10 November 2021. The material particulars were dealt with at para. 1 in the Notice for Particulars, and I have set out below the relevant queries and responses:-

1. As the Indorsement of Claim pleads distress, upset, anxiety, inconvenience, loss and damage:

• (a) Please confirm whether or not the alleged inconvenience, loss and damage consists of or include anything beyond or additional to the alleged distress, upset and anxiety;

  Answer: No

• (b) If so, please provide full and detailed particulars of the alleged inconvenience, loss and damage;

  Answer – Not applicable

• (c) In particular, and without prejudice to the generality of the preceding subparagraph (b), please confirm that the Plaintiff is not claiming special damages. Alternatively, if he is claiming special damages, please provide full and detailed particulars of the items of special damage being claimed.

  Answer – The plaintiff is not claiming special damages at this stage.

8 . A Defence was delivered on 10 December 2021. The Defence sets out preliminary objections including a specific objection focused on the absence of prior authorisation from PIAB. The remainder of the Defence addresses the substantial case raised by the plaintiff and denies that the plaintiff is entitled to any of the reliefs claimed. The defendant issued a motion on 14 March 2023 seeking to have the plaintiff's claim struck out on the basis that there was no authorisation from PIAB and/or on the basis that the proceedings were commenced by an Equity Civil Bill and not a Personal Injuries Summons as required by section 10(3) of the Civil Liability and Courts Act 2004. The affidavit grounding this application was sworn on 1 March 2022. In the affidavit, the solicitor for the defendant sets out the history of the proceedings and asserts that the plaintiff ought to have, but did not obtain, an authorisation in respect of the injuries claimed in these proceedings from the PIAB. There was no replying affidavit, but the position of the plaintiff is that there was no need for prior authorisation in this case.

THE LEGAL FRAMEWORK

9 . There is a degree of common ground between the parties with regard to the overall legal principles governing this application.

10 . The manner in which the Act of 2003 operates in connection with claims for damages for personal injuries has been the subject of determinative consideration by the Supreme Court in Clarke v. O'Gorman [2014] 3 IR 340. The following key points emerge from that judgment:

• a. Section 10 defines “ relevant claim” as meaning a civil action to which the 2003 Act applies.

• b. Section 12(1) of the Act of 2003 provides that no proceedings may be brought in respect of a relevant claim unless and until (a) an application is made to the Board and (b) the bringing of the proceedings is authorised under sections 14, 17, 32 or 36, or the rules under section 46(3) or section 49.

• c. Section 12(1) of the Act of 2003 does not operate as a jurisdictional bar, but instead operates to bar a remedy where a plea to that effect was made by the defendant. In that regard, s. 12(1) of the Act of 2003 corresponds with various provisions in the Statute of Limitations 1957, as amended.

• d. Section 3 of the Act of 2003 make clear that the Act applies to a large range of civil actions, other than those “ arising out of the provision of any health service to a person, the carrying out of a medical or surgical procedure in relation to a person or the provision of any medical advice or treatment to a person.” The qualifying criteria is the nature of the relief sought in those civil actions.

• e. Section 4(1) of the Act of 2003 defines a “ civil action”, and describes the necessary features of such an action:

  • i. The action is in respect of a wrong;

  • ii. It is pursued for the purpose of recovering damages; and

  • iii. The damages are for personal injuries.

• f. Section 4(2) of the Act of 2003 goes on to confirm that for the purposes of a “ civil action”, the word “ wrong” has the same meaning as it has in the Civil Liability Act, 1961 (“ the Act of 1961”).

• g. “ wrong” is defined in s. 2(1) of the Act of 1961 as:-

  “ … a tort, breach of contract or breach of trust, whether the act is committed by the person to whom the wrong is attributed or by one for whose acts he is responsible, and whether or not the act is also a crime, and whether or not the wrong is intentional.”

• h. As noted by the Supreme Court in Clarke v. O'Gorman, “ wrong” in this regard is “ a concept of the broadest application which captures most, if not every, cause of action litigated in civil proceedings at common law.”

• i. The Act of 2003 also adopts the definition of “ personal injury” from the Act of 1961, which is:

  ““ personal injury” includes any disease and any impairment of a person's physical or mental condition, and “injured” shall be construed accordingly;”

11 . The judgment in Clarke v. O'Gorman explains the critical distinction between the cause of action pleaded and the relief being claimed in respect of the wrong alleged in the cause of action. As put by O'Donnell J. (as he then was) at para. 18, “[p] ersonal injuries are the injuries suffered which, if caused by a wrong, may give rise to a remedy, most often an award of damages.”

12 . That distinction is further explained at para. 29:-

“ For reasons already touched on, causes of action on the one hand, and claims for personal injuries on the other, are not...