Ensbury Park: looking down on a police car

If you settle a case on one point, can you then litigate it on another?

The Court of Appeal in London recently considered a case, previously settled as a defamation claim, on a question of a data breach. 


In 1998, as a probationary constable with West Midlands Police, the claimant was investigated for disciplinary complaints but left to join the army before any action was taken against him. 

In 2005, he applied to become a Special Constable with Avon & Somerset Constabulary. During vetting, the 1998 allegations resurfaced and were subsequently recorded in an intelligence file held by the defendant. The claimant’s application was refused.  

In 2008, the claimant made a public complaint on Facebook against a named officer of Avon & Somerset, which was recorded by its Counter Corruption Unit. He was arrested on suspicion of criminal damage. There was no conviction, but a record of the alleged incident was kept on the Police National Computer, with his fingerprints and DNA retained until 2015.   

In 2010, the claimant qualified as a barrister and was called to the bar. He also worked as a legal academic.

In 2017, the claimant applied to be a constable with Hertfordshire Constabulary. He passed vetting, but the offer was withdrawn following disclosures from Avon & Somerset Constabulary.

In 2018, he issued defamation proceedings:  

…claiming £167,992.57 as damages, alleging that the information supplied by Avon & Somerset to Hertfordshire was defamatory and untrue. He asserted that the libel had caused him special damage through lost earnings and, more generally, the loss of a police career.

The claimant’s particulars of claim included an assertion of a data breach by the defendants. 

Part 36 offer

Part 36 of the Civil Procedure Rules is a mechanism that can put pressure on the other side to settle a case, with costs implications if they don’t beat that offer at trial.

In 2019, the claimant accepted a Part 36 offer of £25,000. Avon & Somerset subsequently deleted the data relating to him. 

In 2020, the claimant issued further proceedings against the defendants for their data breach. The case was struck out, and he appealed to the Court of Appeal. 


On Appeal, it was noted that the claimant’s case advanced essentially the same data protection claims and sought the same remedy as the case settled in 2019.

…[the claimant] admits… that he was taking advantage of a litigation mistake. Such conduct fully justified the Judge in finding that bringing the … [data protection] claim in these proceedings… was an abuse of the process of the court.

per Phillips LJ at [66]


As the [trial] judge pointed out, [the claimant] is a trained lawyer (he was called to the bar in 2010) and legal academic. Far from being ignorant of the law, [the claimant] was seeking to take advantage of his superior knowledge of a technical point under Part 36 to obtain a benefit which he knew that [the defendant] did not intend.

per Males LJ at [74]

Appeal dismissed.

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