Neil Spurgeon & Ors v Capita PLC

This is my judgment in relation to an element of the defendant’s applications (“the Applications”) dated 5 July 2024 and 15 August 2025 to strike-out or to obtain reverse summary judgment in relation to these claims brought by a total of 3,973 individual claimants who assert that they should recover damages for the consequences (including, in particular, mental distress suffered by them) of breaches of data protection law by the defendant resulting in their personal data being hacked by third parties.

This aspect of the application is made on the basis (and which I refer to below as “the Abuse Ground”), primarily, that the claimants’ solicitors have improperly advanced certain assertions within the Particulars of Claim regarding the mental consequences allegedly sustained by the claimants, and have so acted as to taint their clients’ beliefs and evidence as to them that the entirety of the claims have become an abuse of process, and that this is so serious as to require the court to strike out the entirety of all of the claims.

The application also raises, directly or indirectly, questions as to what are and are not appropriate procedures to be used in large multiple claimant claims especially in the context of alleged breaches of data protection law.

I have had before me and considered substantial bundles (including statements of case, witness statements and annexures from each side) and written and oral submissions from counsel – Mr Philip Coppel KC, instructed by Barings Limited (“Barings”), for the claimant and Ms Proops KC (leading Mr Zac Sammour and, Mr Michael White), instructed by TLT Limited (“TLT”), for the defendant.

The Applications are formally made under Civil Procedure Rule (“CPR”) 3.4(2)(b). CPR3.4(1) and (2) provide that:

“(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;

(c)

that there has been a failure to comply with a rule, practice direction or court order; or

(d)…”

These claims arise from the facts, which are relatively common-ground, that:

Mr Coppel has sent me recently a copy of a report (“the ICO Report”) of the Information Commissioner (“the ICO”) regarding the Data Security Breach and referred to the fact that the ICO has imposed a very substantial fine upon the defendant as a result. Ms Proops says that this is not relevant to what I have to decide in this judgment which she says only relates to matters of how claimants and their solicitors seek to generate and advance a case whatever its merits (or absence of them).

The Claim Form was issued by the claimants’ solicitors, Barings, on 4 April 2024 and served, with Particulars of Claim, a few days later.

The Particulars of Claim (“the POC”) are dated 26 March 2024 and bear the name of Mr Coppel as drafting Counsel. They bear a Statement of Truth signed by Craig Cooper of Barings in ordinary form (paragraph 2.1 of CPR Practice Direction (“PD”) 22):

“The claimants believe that the facts stated in these particulars of claim are true. The claimants understands that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.”

The POC assert that the defendant processed and was the controller of the personal data of each of the claimants; and, as a result, owed the claimants a wide range and number of duties (“the Asserted Duties”) under the Data Protection Act 2018 (“the DPA”) and the European and United Kingdom General Data Protection Regulations (“GDPR”).

The POC assert that the defendant breached each and every one of the Asserted Duties resulting in, during the Data Security Breach Period, the Criminals succeeding in (i) engaging in unauthorised and unlawful processing of the claimants’ Personal Data And (ii) including in such engaging, the exfiltration of each of the claimants’ Personal Data out of the defendant’s data/computer systems; And that, as a result, the Criminals have been able to misuse the Personal Data of each and every one of the Claimants.

It is also asserted that the defendant had, in effect, decided to save money and resource by deliberately not taking steps, and expending money to take steps, to protect the Personal Data when it should have known that there were exploitable vulnerabilities. It is contended that the defendant had decided to limit its costs, in order to boost its profits, and that as a result the claimants had suffered the effects of the Data Security Breach.

In paragraph 42 it is stated that under Article 82 of the GDPR and section 168(1) of the DPA, the defendant is liable to the claimants for all material and non-material damage suffered by them.

In paragraph 45 of the POC it is stated that:

“45.

By reason of Defendant's failure to comply with its duties (both statutory and contractual) as alleged in paragraphs 40 and 42 above:

(a)

each of the Claimants has suffered and continues to suffer damage, namely that the security and integrity of his or her personal data has been compromised as aforesaid, rendering each of the Claimants more vulnerable to nefarious activities by criminal actors, and, under Article 82 of the GDPR and section 168 of the DPA 2018, each Claimant is entitled to compensation from the Defendant for that damage in an amount that the Court considers just and; and (sic)

(b)

each of the Claimants has suffered distress and, under Article 82 of the GDPR and section 168(1) of the DPA 2018, each Claimant is entitled to compensation from the Defendant for that distress.”

Paragraph 45 then continues with two tables (“the Table(s)”) which are in similar form; and where the first cross-refers to Schedules 1 (a list of various Claimants being past or present employees of the Defendant) and Schedule 4 (details of distress said to be suffered by them), and the second cross-refers to Schedules 1 (a list of the rest of the Claimants, being members of various pension funds) and Schedule 5 (details of distress said to be suffered by them) (“the Schedule(s)”). The form of each of the Tables is as follows:

Schedules 4 and 5 take the form each of a Table which has a number of columns. On the left-hand column is the name of the claimant. There are then a set of boxes headed “A” to “M” and each of such boxes either has a “X” (meaning that that claimant is alleging that what is said opposite that letter in the relevant POC Table is the case) or is left blank (meaning that that claimant is not alleging that what is said opposite that letter in the relevant POC Table is the case). In some cases all the boxes have a “X”, in other cases only some of them have a “X”.

There is then a box “N” which contains either nothing (in the case of some claimants) or a set of personal statements of the relevant claimant.

Those statements may be short e.g. “Where previously I trusted that my personal information was held securely by a professional data processor I now find myself very regularly checking the monitoring service results”; or lengthy e.g. “I have noticed that I get so much spam email now; as well as calls on my phone which I don’t recognise. I am careful about not clicking on links but I am concerned that more sophisticated attempts might catch me off guard or circumvent my actions. I find it particularly concerning that they have personal data such as my NI Number and am concerned about what this might mean in terms of my pension and risk to my financial future. I know that cyber-attacks are getting more sophisticated and am concerned that the rise in this and the increasing sophistication of AI is going to have a real life impact on me in my retirement.” Others refer to considerable levels of distress. Many express disgust with the defendant.

Paragraph 46 of the POC reads as follows:

“46.

In support of their claim for aggravated damages for the Defendant's failure to comply with its duties (both statutory and contractual) as alleged in paragraphs 40 and 42 above, the Claimants will rely on the following facts and matters, as well as any further relevant facts and matters that emerge upon disclosure or otherwise.

PARTICULARS OF AGGRAVATED DAMAGES

The Defendant's lax approach to ensuring the data security of the Claimants' personal data and its inadequate response upon learning of the Data Security Breach aggravated the Claimants' material and non-material damage, such as to render a basic compensatory award, including one providing for distress, inadequate to reflect:

(a)

the affront to their personal privacy and data security;

(b)

the Claimants' enduring and irresolvable apprehensions as to the criminal uses to which their personal data accessed through the Data Security Breach might be put;

(c)

the inconvenience to which the Claimants have been put in taking measures to limit the opportunity for his or her personal data accessed through to the Data Security Breach to be used to exploit, extort, defraud or otherwise cause harm to him or her.”

Paragraphs 47 and 48 contains a claim for exemplary damages based on assertions that the defendant deliberately “cut corners” for their own profit with the result that the Data Security Breach occurred.

Mr Coppel suggested that each claimant might receive at trial in the region of £1,000 thus valuing the overall claim in seven figures (a quantum which Ms Proops would very much dispute).

The defendant takes issue with much of the pleading asserting, amongst other things, that: it is too long and raises too many allegations of the existence and the breach of Asserted Duties; and that it seeks certain heads of damages which cannot be awarded to these claimants either as a matter of law or because the pleaded facts are insufficient. I am not concerned in this judgment with those issues as the present argument before me has been confined to points regarding the Tables and the Schedules to which I will come.

There was originally filed a “holding” Defence (“the Holding Defence”) document (as to which there are various disputes as to whether that was a proper statement of case as a matter of law, but upon which I have not yet had full submissions) but that has been overtaken by a fresh Defence dated 8 August 2025 (“the August Defence”).

In Paragraph 6 of the August Defence it is admitted that “the Cyber-Attack” occurred in March 2023.

In Paragraph 10 of the August Defence it is stated that by correspondence of 10 June 2025 the defendant admitted that “in respect of the personal data that has been exfiltrated in the course of the Cyber-Attack” it breached certain duties (which are called “the Security Duty”) under GDPR. Paragraph 11 asserts therefore that all the rest of the Asserted Duties are irrelevant.

Later in the August Defence it is accepted that some claimants had some of their Personal Data exfiltrated. However, the August Defence makes clear, as I refer to below, and as repeated by Ms Proops, that the defendant contends that (i) very many claimants have not had their Personal Data exfiltrated and that, in consequence (ii) there is no admission of any breach of duty in relation to those claimants.

In Paragraph 12 of the August Defence it is stated that:

“12.

The Defendant’s position in summary is as follows:

(a)

The claims are an abuse of process in that:

(i)

the solicitors acting for the Claimants – Barings Law (“Barings”) – have irrevocably tainted the Claimants’ evidence by ‘putting words into the Claimants’ mouths’ on the fundamental (and highly subjective) issue of loss and damage; and/or

(ii)

Barings’ Craig Cooper has signed a Statement of Truth attesting to the truth of so-called “Particulars of Distress” pleaded on behalf of the Claimants in circumstances where, as he knew or should have known at the time, those “Particulars” did not reflect instructions given by the Claimants.

(b)

Further or alternatively:

(i)

All causes of action based on the Other Breach Allegations fall to be struck out on the basis that litigating them would (1) substantially and pointlessly increase the cost of this litigation, and accordingly (2) amount to abuse of process, because they are not ‘worth the candle’ of litigation.

(ii)

The Claimants’ pleaded claim to damages for mere breach of duty or exposure to a risk of harm, if such claim is indeed made, falls to be struck out because it is bad in law.

(iii)

Insofar as the so-called “Particulars” of distress for any Claimant in Schedules 4-5 to the Particulars of Claim are blank, internally inconsistent or do not aver that the Claimant was distressed, that Claimant’s case falls to be struck out.

(iv)

The Claimants’ pleaded claims to aggravated and exemplary damages also fall to be struck out because they are also bad in law.

(c)

Further or alternatively, over a third of the Claimants – 1,472 of them – do not appear to have been affected by the Cyber-Attack: on the information available to the Defendant in light of the Claimants’ pleaded case, their personal data was not exfiltrated, and their claims fail accordingly. These “Unaffected Claimants” are identified in Schedule X hereto.

(d)

Certain personal data of the remaining Claimants (the “Affected Claimants”) was exfiltrated. The Affected Claimants are identified in Schedule Y1 hereto insofar as each such Claimant has accurately identified the pension scheme of which they were a member, and Schedule Y2 insofar as any Claimant has not.

(e)

Save in the case of the Claimants listed in the last sentence of paragraph 6 above, the personal data of all Affected Claimants was processed by the Defendant qua processor.

(f)

Without prejudice to the foregoing, it is not admitted that any Claimant suffered compensable harm as a result of any alleged (or admitted) breach of the duty by the Defendant. The Claimants are put to strict proof with respect to the same.”

It is thus clear that the defendant asserts that it has committed no wrong with regard to very many of the claimants, and disputes any liability to pay damages even to those who have been wronged; but in any event contends that the entire claim i.e. with regard to each and every claimant, is an abuse of process and should be struck-out (Ms Proops saying that that would leave any relevant claimant with some possible claim for damages against Barings for their loss of chance of obtaining a damages remedy had the claim been advanced in a non-abusive manner). The defendant has subsisting applications to strike-out all or some of the claim on other bases; but the argument before me, and therefore this judgment, has been confined to the Abuse Ground argument, being, in essence, what is set out in paragraph 12(a) of the Defence.

Following issue of the Claim Form and service of the POC, the defendant issued an Application Notice dated 4 July 2024 seeking various directions but including documentary material and information as to how the individual claimants were said to have authorised Barings to bring this litigation on their behalves and as to the process by which particulars of loss and damage had been elicited by Barings from the individual claimants.

The claimants countered with an Application Notice dated 5 July 2024 seeking default judgment or to strike-out or for summary judgment effectively on the basis that the Holding Defence was not a proper defence. Listing these applications to be heard on a convenient dated took a substantial time.

The claimants issued separate proceedings in the Manchester County Court (“the Manchester Proceedings”) seeking information under data protection legislation as to what had happened in relation to the Data Security Breach. Those proceedings have since been discontinued by the claimants; although, by Order of HHJ Bird made in Manchester, questions regarding the costs of those proceedings have now been transferred to me.

The claimants further issued an Application Notice dated 27 May 2025 for CPR Part 18 Further Information to be provided by the defendant, in particular relating to the Data Security Breach.

By the time of the hearing of those applications on 18 and 19 June 2025, I had before me the first witness statement of James Edward Chadwick of TLT of 4 July 2024 adduced by the defendant, and the first and second witness statements of Craig Cooper of Barings of 4 July 2024 and 11 June 2025 adduced by the claimants.

At the hearing on 18 June 2025, I drew the attention of the parties to the overriding objective in CPR1.1(1) being that the CPR exist to enable “the court to deal with cases justly and at proportionate cost”.

I remind myself that CPR1.1 provides that:

“1.1

(1)

These Rules are a procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2)

Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a)

ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b)

saving expense;

(c)

dealing with the case in ways which are proportionate –

(i)

to the amount of money involved;

(ii)

to the importance of the case;

(iii)

to the complexity of the issues; and

(iv)

to the financial position of each party;

(d)

ensuring that it is dealt with expeditiously and fairly;

(e)

allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases;

f)

promoting or using alternative dispute resolution; and

(g)

enforcing compliance with rules, practice directions and orders.”

I drew the attention of the parties to the fact that I was already becoming concerned that the arguments in correspondence between the solicitors, and the wordings used, had already threatened to reach a level which might not be conducive to the achievement of the overriding objective. This being in particular as: (1) the debates threatened to concentrate upon the propriety of the actions and assertions of the solicitors rather than the merits of the claims advanced by the actual litigants and how they should be properly formulated, advanced and resolved justly and at proportionate cost; and (2) the costs of those debates threatened to be high or very high indeed. The subsequent course of this litigation has served to increase those concerns, although I have throughout reminded myself of the fact that my role, whilst seeking to achieve the overriding objective is to resolve the opposing parties’ contentions as a matter of and in accordance with law.

The hearing on 18 June 2025 involved my mainly hearing submissions from Ms Proops to the effect that I should strike-out the claim on the basis that I should conclude that some (or even all) of the individual claimants had not authorised the claims to be brought through the medium of the Claim Form and the POC; that being disputed by Mr Coppel. That gave rise to my raising questions of the position regarding legal professional privilege (“LPP”) as between the claimants and Barings, and as to what, if any, documents or information might or ought to be provided as to what had passed between them.

However, on 19 June 2025, the parties announced that they had agreed that, without any intention on the claimants’ part for there to be any greater waiver of LPP, the claimants had agreed to provide copies of a pro forma questionnaire (“the DBQ”) which Barings had had completed by the individual claimants together with an explanatory witness statement, and that the defendant would thereafter decide whether or not to make a full strike-out application. In the meantime, the then existing applications were withdrawn. I was invited to and did make a consent order to that effect, although I had to determine that costs should be reserved (that itself being hotly contested, as was the question whether I should make some costs order in relation to the costs incurred in making that decision).

The claimants then provided the DBQ and witness statement, to which the defendant responded with the Applications which at that point were to strike-out on the bases both (i) of Barings not having the individual claimants’ authority to bring the claims by way of the Claim Form and the POC (“the Authority Ground”) and (ii) of the POC being an abuse of process (“the Abuse Ground”).

In support of the Applications, the defendant further adduced the second, third, fourth and fifth witness statements of James Chadwick dated 1 July, 15 August, 22 August and 25 September 2025; and to which the claimants responded by the third (said to be fourth) witness statement of Craig Cooper of 19 July 2025 and the first and second witness statements of Adnan Malik of 11 September 2025 and 7 October 2025.

At the hearings on 9 and 10 October 2025, Ms Proops initially maintained the Applications on both of the Authority Ground and the Abuse Ground.

However, Mr Coppel then stated (following an invitation from Ms Proops) on instructions (and as I refer to further below) that the individual claimants had each been sent (prior to issue or service) by Barings, copies of the Claim Form and POC and been told that they were to be issued and served on their behalves, and that they had each individually confirmed that this was to be done (in some cases in a modified form from what had been proposed). Mr Coppel further said that the individual claimants had been made aware of the Applications and the hearings. Mr Coppel added that for the claimants to have to say any more would amount to an impermissible invasion of LPP.

Ms Proops then said that the defendant would accept those assertions of fact.

Ms Proops then decided (it seemed to me) not to press the Authority Ground but, rather, to advance the Abuse Ground. In those circumstances, this judgment is essentially limited to the Abuse Ground (although I do refer further briefly to the Authority Ground below).

After a relatively brief opening from Mr Coppel (and in which he referred to the defendant’s costs of the various procedural applications (including the Manchester Proceedings) so far being said to be in excess of £718,000 with the claimants’ costs of the litigation so far exceeding £300,000), Ms Proops’ submissions took until much of the morning of the second allocated day. Mr Coppel then replied but there was insufficient time to complete submissions on 10 October 2025. I therefore made directions for written submissions, with Ms Proops (whose are the Applications) having the last word, and which process was completed on 10 November 2025.

I have taken into account all the evidence to which my attention has been drawn and all the oral and written submissions before me in coming to this judgment. If I do not mention any matter specifically that is in view of considerations of time and space.

Both sides, but in particular the defendant, have referred me to the matter of Bowyer v South Staffordshire Water Plc : KB-2024-004014 (“the SSW Case”) which is proceeding in this Division of the High Court and is assigned to Senior Master Cook (“SMC”). That is another cyber-security breach data protection claim involving some 752 claimants, and where Barings act for those claimants and instruct Mr Coppel. The defendant in that case instructs DWF Law LLP as its solicitors, and who instruct Ms Proops as counsel.

In the SSW Case, that defendant has made a strike-out application (and also sought for the matter to be transferred to the County Court, seeming on the basis that each individual claim is of low value). In that strike-out application the defendant has raised points similar to the Authority Ground and to the Abuse Ground. That defendant has also already succeeded in striking-out one pleaded cause of action on the basis that the higher courts have held that the relevant legislation does not allow for the relevant damages claim; and it may be that the defendant in this case will say that the same conclusion should apply in relation to one element of the damages claim pleaded in the POC in this case, but that application is not the subject of this judgment and I have not heard full submissions upon it as yet.

Ms Proops asserts that SMC has been critical of Mr Coppel and Barings in relevant respects, although Mr Coppel would not accept this. I have not been provided with any relevant transcript of any hearing or decision.

By paragraphs 9 and 10 of his order of 17 November 2025 in the SSW Case, SMC has adjourned (1) that defendant’s remaining strike-out applications (including those based upon matters similar to the Authority Ground and the Abuse Ground) pending my decisions in this judgment, and (2) that defendant’s application for transfer to the County Court.

Although SMC and I liaise as part of the ordinary operation of the King’s Bench Division in order to seek to achieve the overriding objective and efficiency, SMC has taken no part in the formulation of this judgment and its reasoning is entirely my own.

In the absence of any agreement or transcript, I do not see it as appropriate to rely in relation to this judgment upon anything that SMC may (or may not) have said regarding the case advanced by the claimants in the SSW Case. It seems to me that I lack any proper foundation upon which to do so. I am also not in a position to consider whether or not there is any sufficient relevant similarity between the two matters and what has or has not happened as part of their process of formulation. I have to deal with this case upon its own merits, and the evidence before me and the submissions which I have heard in it.

However, I do note that that the SSW Case is merely one of a considerable number of data protection breach claims which have been brought in this court each involving high, or very high, numbers of individual claimants.

While each claimant’s claim may be relatively small (although Mr Coppel asserts that, in this case, an average claim could be worth £1,000), the overall value may be considerable (Mr Coppel says that in this claim the total value of all the claims could be £3-4 million). It has been held in Richard Neil Adams & Ors v Ministry of Defence [2024] EWHC 1966 that there is no CPR objection to the joinder of a large number of claimants in a single claim form where common issues of fact or law arise, and notwithstanding that that may enable a very substantial saving of court issue fees (since the issue fee for a single claim form is presently capped at £10,000).

However, this does give rise to considerable questions both as to how the court should case manage such claims (a matter which is considered to a degree by the Court of Appeal in the Farley litigation to which I refer below) and as to how they should be properly advanced.

Mr Coppel and Barings would say that a generic approach is appropriate without great time being spent, at least at an early stage, on setting out the precise different facts of each claimant’s loss, as such would involve potentially great and disproportionate expense, and potentially lead individual claimants not to advance, or to be commercially able to advance, their proper and justified claims. Ms Proops and TLT, while they assert that they are concerned as to expense, would say that each claim should be set out properly in its own right so that the defendant and the court can properly assess it and so that it should not in some way be tainted by a generic approach.

For myself, as the Court in this case, I am concerned that: a concentration by the parties in this case on how Barings have sought to formulate and advance the cases of the individual claimants; with the defendant seeking to attack that process and also to complain about Barings method of recruitment of large numbers of claimants (presumably to Barings’s own commercial advantage and profit) for what the defendant would assert are excessive claims (even if an individual claimant’s data was exfiltrated); resulting in each side’s lawyers asserting degrees of professional misconduct by the others (and to which I refer below) - may obscure the actual subject-matter of these proceedings i.e. whether (or not) each individual claimant separately has a cause of action leading to a particular entitlement to damages against the defendant. Nevertheless, any claim does have to be brought in accordance with law and the relevant rules (whether in the CPR or elsewhere), and that is what I am considering in this judgment.

There is also in this Division of the High Court, the case of Farley And Others v Paymaster (1836) Limited trading as Equiniti : QB-2021-001497 (“the Farley Case”) and where I am the assigned KBD Master. In those proceedings a large number of claimants (serving and previously serving police officers) assert that their data protection rights were breached when letters were sent out by a pension provider to incorrect addresses; some of which letters were returned by their incorrect recipients unopened, others of which may have been opened by their incorrect recipients, and where it may not be known what has happened to others.

The various claimants in that case brought proceedings claiming damages, including for annoyance and distress. At an early case management conference on 27 April 2022, I was concerned that the claims for damages were not sufficiently particularised so as not to be intelligible or to enable the defendant to understand and seek to defend or resolve them appropriately. I therefore made an order requiring particularisation and including in relation to each individual claimant (1) whether (a) annoyance, (b) distress and/or (c) anxiety was alleged to have been caused by the data protection breach, (2) whether a recognised medical condition was alleged to have been caused by the breach, (3) whether a recognised existing medical condition was alleged to have been exacerbated by the breach, (4) whether any specific symptoms of distress or anxiety, or only general distress, were alleged to have been caused by the breach, and (5) whether any other damage was alleged to have been caused.

Following compliance with that order, the defendant in that case applied to strike-out or for reverse summary judgment in relation to many of the damages claims of those individual claimants on various bases, but in particular on the basis that insufficient had been advanced to amount to anything which would justify a damages remedy as matter of law or otherwise continuing with the litigation.

Mr Justice Nicklin at first instance held that those claimants who could show that their data had been read by others had arguable claims, but that all the other claimants did not. His judgment was appealed by all those other claimants to the Court of Appeal whose judgment was delivered on 22 August 2025 and has Neutral Citation Number [2025] EWCA Civ 1117. The leading judgment of Warby LJ was simply agreed with by the other two members of the Court.

At paragraphs 5 and 6, Warby LJ summarised the issues and his conclusions:

“5.

The main issues can therefore be summarised as follows: (1) have the appellants set out a reasonable basis for claiming that the respondent's mistake involved infringement of the GDPR ("the infringement issue"); if so, (2) have the appellants stated a basis for claiming compensation under the GDPR and DPA that is reasonable, with a realistic prospect of success at a trial ("the compensation issue"); and if so (3) are the claims nonetheless an abuse of process of the Jameel variety ("the Jameel issue")?

6.

We have read and heard argument on those issues on behalf of the appellants, the respondent, and the Information Commissioner, who intervened at the prompting of the court. Having reflected on the helpful submissions of Counsel, and for the reasons given below, I have reached the following conclusions.

(1)

The judge was wrong to strike out the data protection claims for the reason he gave. Each of the appellants has pleaded a reasonable basis for alleging that the respondent's mistake involved infringement of the GDPR. Proof that the data were disclosed is not an essential ingredient of an allegation of processing or infringement. The appeal on the infringement issue should therefore be allowed.

(2)

As to the compensation issue:-

(a)

The respondent is not entitled to judgment on the grounds that the appellants' factual allegations are simply incredible. An allegation of "distress" is not, as the respondent has submitted, an essential ingredient of a tenable claim. Nor can the claims be dismissed for failing to meet a threshold of seriousness. There is no such threshold in EU data protection law. We are not bound to hold that such a threshold exists in domestic data protection law. Nor is there any other good reason to do so. The judge's decision cannot be upheld on any of these grounds. To this extent the cross-appeal should be dismissed.

(b)

The respondent is however entitled to contend that the appellants' fears of third-party misuse were not "well-founded" and hence cannot qualify as "non-material damage" for which compensation is recoverable under the GDPR. The question of whether a claim based on the fears alleged could prevail can be determined at this stage. The fate of the claims for consequent psychiatric injury appears to turn on the outcome of that issue. There are no other properly pleaded compensation claims. So the answer to this question could be decisive for at least some of the claims. But the question must be answered case by case. This is not the appropriate court to carry out that exercise. Other things being equal, the case should be remitted to the High Court which may conduct the review itself or give directions for it to be carried out in the County Court.

(3)

The Jameel jurisdiction does not provide a reason to bypass that process. These claims as a class cannot be categorised as Jameel abuse although the question of whether any individual case is abusive will remain for consideration.”

My order of 27 April 2022 and what had happened as a result was summarised at paragraph 16:

“16.

On 27 April 2022, the court made an order pursuant to CPR 18.1(1)(b) for the claimants to provide further information by way of claimant-specific statements of case. These took the form of individual schedules verified by statements of truth. Features of significance for present purposes are these:

(1)

Each claimant was ordered to state whether they had "suffered any annoyance and/or distress and/or anxiety". Some of the schedules responded by using the word "distress" or the word "anxiety" or both. Other individual schedules did not use the word "distress". Some 34 said in one way or another that the claimant had not suffered "distress". Different forms of words were used to describe the officer's emotional response to the breach, including "stress", "annoyance" and "irritation". Some schedules used qualifying adjectives, characterising their reactions as "mild", "minor", or "temporary".

(2)

Some of the schedules gave explanatory or supporting details. For instance, the first claimant's schedule explained that he had been distressed about "the potential consequences of the information falling into the hands of someone on the other side of the law". Although he considered the risks to be "remote" he suggested they were "live and real". He also said he suffered anxiety over the potential for other misuse of the data, such as its use to open bank accounts, or apply for credit cards in his name. Concern at what might happen if information was accessed by criminals was a common theme. So was concern at the prospect of identity theft. Other worries were identified. Another claimant (no 45) was also "concerned" because the Original Residential Address was owned by the parents of his ex-partner, with whom he had experienced "significant issues" particularly around financial matters. He was fearful of what his ex-partner might do with details of his income and other personal information.

(3)

Required to state whether they had "a medical condition caused (or exacerbated) by the misaddressed ABS" a substantial number of the claimants asserted that they did. Among those are 42 of the appellants, each of whom has served a medical report in support of that assertion. We have not been provided with all of these but have been shown three exemplars, each of which contains details of the kinds of distress or concern or other emotional reaction reported by the particular appellant.”

In paragraph 22, Warby LJ referred to a proposed generic reformulation by those claimants as to how they put their cases:

“22.

In the light of the judgment below and directions given by this court the appellants have prepared draft Amended Master Particulars of Claim. Relevantly, these abandon the misuse of private information claim and the assertion that the appellants' personal data actually passed into the hands of any third party. Their claim now is that by processing their data in breach of statutory duty the respondent caused them to suffer "anxiety, alarm, distress and embarrassment" for fear that their personal data "may have" passed into the hands of unknown third parties. They seek to add the words "and/or as a result of uncertainty as to what had become of their ABSs and who may have opened it, and/or by the fact that their Personal Data may be or may have been misused." This all appears legitimate in principle and I would grant permission to amend, without prejudice to the issues that arise about the viability of individual claims.”

In paragraphs 41-43, Warby LJ set out the statutory provisions regarding what compensation can be sought for data protection breaches, and how those claimants were putting their damages claims:

“The GDPR and DPA

41.

Article 82 of the GDPR provides, so far as relevant:

"(1)

Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller …for the damage suffered."

(2)

Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation …"

42.

Section 168(1) of the DPA provided at the material time that "In Article 82 of the GDPR (right to compensation for material or non-material damage), 'non-material damage' includes distress."

The pleaded claims

43.

The appellants' case, as set out in the draft Amended Master Particulars, now includes just two generic allegations. First, that the breaches complained of led each appellant to experience "anxiety, alarm, distress and embarrassment" at the prospect or possibility that their personal data may have come into the hands of third parties and been misused or exposed to the risk of misuse. This is expressly pleaded as "non-material damage". Secondly, 42 of the appellants allege that the breaches caused them to suffer an aggravation of a pre-existing medical condition. For this, general damages are claimed. The Particulars do not categorise this head of loss as material or non-material. The individual schedules, being pleaded by way of additional information, must be read in the context of the Master Particulars.”

Warby LJ then dealt with a contention from that defendant that what was being advanced was “incredible”, and which was at least in part based upon different individual claimants using the same or very similar phrases, saying at paragraphs 44-48 as follows:

“Incredible?

44.

It is convenient to begin with Mr Sharland's invitation to reject the factual allegations pleaded by the appellants as simply incredible and to enter summary judgment for the respondent on that basis.

45.

Referring to well-known passages in Three Rivers DC v Bank of England (No 3) [2001] UKHL 16, [2003] 2 AC [95] and E D & F Man Liquid Products v Patel [2003] EWCA Civ 472 [10] Mr Sharland submitted that we could "say with confidence …that the factual basis for the claim is fanciful" and that it was "clear that there is no real substance" in the appellants' factual assertions. Mr Sharland pointed to the distinction between statements of primary fact on the one hand and, on the other, inferences, assertions of law and matters of comment, which the court is not bound to accept as correct ( Korea National Insurance Corporation v Allianz Global Corporate & Speciality AG [2007] EWCA Civ 1066, [2007] 2 CLC 748 [11] ). Developing the headline submission I have quoted at [26] above, Mr Sharland argued that it was "simply unreal" to suggest that any of the appellants had a genuine belief that their data had gone to someone unknown let alone that it had been misused, and that the "levels of distress referred to [are] entirely improbable". He submitted, further, that the individual schedules contained clear indications of the unreal and artificial nature of the claims and "cast serious doubt" on their authenticity and credibility. He pointed to the use of certain "stock phrases" which appeared to have been "cut and pasted" into multiple individual schedules.

46.

There certainly is a considerable degree of overlap in the language used to plead the claimant-specific schedules. An Annex to the respondent's skeleton argument identifies more than 15 distinctive phrases that appear and reappear verbatim on multiple occasions. By way of example, some 85 claimants allege that they were "conscious that this information could be used to fraudulently apply for documentation, such as some forms of identification". Some 82 say they were "baffled and frustrated" by the mis-addressing of their ABS. Some 53 cite concerns about what might be done by persons with "malevolent intent". Forty seven complain that "the defendant has sought to trivialise the breach".

47.

In the end, though, this aspect of the respondent's argument is unconvincing. It is true that the court is not bound to accept as credible everything said by the respondent to a summary judgment application. The court may conclude that the respondent has no real prospect of establishing its factual case at trial. The paradigm case in which it may do so is where the respondent's evidence is contradicted by a contemporaneous document the authenticity is not in doubt. This is not such a case. Nor is there anything comparable. The key allegations are not matters of inference or legal argument but matters of primary fact. The appellants have asserted that upon learning of the data breach they experienced certain emotional (and in some instances physical or psychological) responses. These are facts the truth or falsity of which is within the appellants' own knowledge.

48.

The point about repetition is not strong enough to justify summary judgment. The "stock phrases" are not contained in witness statements, which must be in the witness's own words or at least their own language (PD32 para 18.1). They are in statements of case served pursuant to Part 18. The natural inference is that they were drafted by the appellants' legal team, as Mr Campbell submitted was the position. In that context the sheer scale of the exercise makes repetition understandable. The words used in the schedules may not be those which the appellants would have used but that is not a breach of the rules or practice directions. And they have verified what is said as a matter of substance. It would be a strong thing for the court to reject the statements of truth without hearing from the individual concerned. I do not consider we would be justified in taking that step.”

Warby LJ then rejected an assertion that for “non-material damage” (as permitted to be recovered under the legislation) to be claimed required some pleading of (at least) “distress” in his paragraphs 49-53:

“Out of scope (no distress)?

49.

The next issue is whether some of the appellants have failed to plead a case of actionable damage. Mr Sharland submitted that on the true construction of the GDPR and DPA compensation is not recoverable for emotional responses other than distress. The claim of any appellant whose individual schedule failed to assert distress should therefore be dismissed. Mr Sharland identified 34 such appellants, being those who had pleaded that they (i) would not describe the feelings they suffered as distress; (ii) did not suffer distress; (iii) considered distress too strong a word to describe their experience, or said that they were too resilient to have suffered distress; and/or (iv) confine their pleading to "stress" as distinct from "distress". In support of this submission Mr Sharland relied on the language of s 168(1) of the DPA.

50.

In my judgment this submission is too stark and formalistic. I think there is much to be said for the view that compensation is not available in respect of (to adopt Mr Knight's terminology) "all emotional responses to an infringement". I shall come back to that. But I can see no justification for confining the right to compensation in the way suggested in this part of the respondent's argument.

51.

The governing provision is Article 82, which refers to "non-material damage" without limitation. Section 168(1) of the DPA tells us that this term "includes distress" but it is plain that this is an illustrative point. Section 168 does not purport to define or limit the scope of the term "non-material damage" in Article 82. Indeed, it seems clear that Parliament's aim in enacting s 168(1) was not to limit the ambit of the right to compensation but rather to confirm its breadth. Notoriously, section 13(2) of the 1998 Act , which restricted the right to compensation for distress, had to be disapplied for incompatibility with Article 23 of the parent Directive: Vidal-Hall v Google Inc [2015] EWCA Civ 311, [2016] QB 1003 . It would be understandable for Parliament to make clear that it was not committing the same error in the 2018 Act . The Explanatory Notes to the DPA appear to confirm this was the aim, stating (at paragraph 481) that the right conferred by Article 82 "is broadly equivalent to section 13 of the 1998 Act , with the exception that the type of damage that can be claimed is broader…".

52.

In addition, it seems to me that Mr Sharland's argument depends on an unjustifiably narrow interpretation of the term "distress". In English law this term is not usually deployed to distinguish between forms or degrees of emotional harm. It is typically, and most commonly, used as an umbrella term for various forms of emotional harm (including, for instance, stress and anxiety) to distinguish harm of that kind from material damage (as in s 13 of the 1998 Act ) or from other kinds of intangible loss (such as "loss of control"). The point is reflected in paragraph [92] of Lloyd v Google where Lord Leggatt observed that "The term 'material damage' is sometimes used to describe any financial loss or physical or psychological injury, but excluding distress (or other negative emotions not amounting to a recognised psychiatric illness)".

53.

In any event, our approach to the Regulation should not become bogged down in arguments about the meaning of "distress" in domestic law. We should have regard to the language of the GDPR, which is part of our law for this purpose. This includes the Recitals which state, among other things, that the kinds of "material or non-material damage" that a person may suffer as a result of a personal data breach include "limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorised reversal of pseudonymisation, damage to reputation, loss of confidentiality of personal data protected by professional secrecy or any other significant economic or social disadvantage …" (Recital (85)). All of this is clearly at odds with Mr Sharland's submission. The Recitals also state that "The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice" (Recital (146)). We should therefore have regard, at least, to the way the CJEU approaches compensation for "non-material harm" in the context of the GDPR.”

Warby LJ then considered relevant European law and domestic decisions and a contention by the defendant that insufficient of seriousness had been pleaded to justify a damages remedy.

In paragraph 60 he held in relation to the EU decisions that:

“60.

The principle enunciated in this line of decisions would seem to rule out not only the respondent's contention that "distress" is an essential ingredient of a viable claim but also the respondent's alternative submission that the appellants' claims should be dismissed as falling short of a threshold of seriousness.”

In paragraphs 75-76, he concluded:

“75.

These cases seem to me to provide a touchstone by which most if not all of the remaining issues in this case can be fairly resolved. I would put it this way: in principle a claimant can recover compensation for fear of the consequences of an infringement if the alleged fear is objectively well-founded but not if the fear is (for instance) purely hypothetical or speculative.

76.

In all these circumstances I do not see any sufficiently weighty reason for departing on this appeal from the settled CJEU jurisprudence on the threshold of seriousness issue. It follows that there is no need to consider whether the individual claims would cross such a threshold.”

Warby LJ then went on to apply his conclusions of law to the facts of that case. In paragraphs 77-81 he summarised what he regarded as being the correct approach:

“Hypothetical or ill-founded? (Fear of third-party misuse)

77.

It may be helpful to recapitulate at this stage. The CJEU decisions make clear that in principle a data subject whose rights have been infringed may claim compensation for "non-material damage" consisting of a fear that the infringement might have harmful consequences. The appellants' pleaded case on that score cannot be dismissed as incredible, out of scope, or below a threshold of seriousness. But it remains to consider whether the pleaded fears can be characterised as "well-founded" as opposed to being based on a "purely hypothetical risk" or similar, within the meaning of those terms as used by the CJEU.

78.

I take the language used by the Court in VB and BL to import an objective standard or test of reasonableness. It is not necessary to decide whether a similar approach would be adopted if this were a claim in some other, purely domestic tort.

79.

Mr Sharland invited us to hold that, taking the appellants' pleaded case at its highest, all of the claims based on fear of the unknown fail the test identified in BL . The essence of this submission is that we should uphold the judge's order and dismiss the appeal on the grounds that although each of the appellants has a tenable case of infringement none has pleaded a reasonable basis for claiming compensation for fear of what might happen. Mr Sharland submitted that "the fears and concerns referred to …are entirely irrational". Mr Sharland offered to take us through each schedule but pointed to some illustrative examples and some salient common features of the factual position in each case. He argued that many of the claimants came to know for certain that their ABS had never been opened and read, and that none of them ever had any good reason to fear that this would happen or that it might have happened. On this latter point Mr Sharland relied on the reasons given by Nicklin J for concluding that no inference of disclosure could be drawn. He argued that it followed that the appellants' fears could not be well-founded. Further, submitted Mr Sharland, none of the appellants had any good reason to fear that if the envelope was opened its contents would be misused in any of the ways suggested. The information was not sensitive data and was limited in scope.

80.

I am not able to accept these submissions. The fact that these appellants cannot prove that their ABS were opened and read does not of itself show that the fears they entertained were not well-founded. The test of reasonableness cannot depend on hindsight. It must be applied with reference to the facts and matters that were or should have been known to the appellant at the time they experienced the stated fear. That is implicit in paragraph [85] of VB and clearly correct in principle. It is obvious that a person can hold well-founded fears about future harm even if no such harm in fact results. If an illustration were needed, the facts of George v Cannell [2024] UKSC 19, [2024] 3 WLR 153 provide one.

81.

That said, none of these claims can succeed unless the individual appellant pleads and ultimately proves a reasonable basis for fearing (1) that their ABS had been or would be opened and read by one or more third parties and (2) that this would result in identity theft or one of the other consequences which that appellant feared might follow. And in assessing whether such a basis has been identified, aspects of the judge's reasoning are pertinent.”

Warby LJ then sought to deal with how to apply that general approach to the generic particulars and the individual schedules before him. He set out in paragraphs 84-85 as to what the court would need to do:

“84.

The generic factual allegations in the Master Particulars (and the draft Amended Master Particulars) cannot provide the necessary objective foundation for the fears alleged. All that is alleged there is the fact of infringement, the fact of the fears, and an allegation of causation. Nor can the mere fact that an appellant came to know that their ABS had been sent to the wrong address be enough to found a well-founded fear that it would be opened and read. In my judgment, individual schedules can only be sufficient if they state a specific and reasonable basis for fearing that in the particular case of the appellant in question the envelope would be opened by someone and its contents read. If that much is pleaded, an individual schedule will still fall short unless it also sets out particular circumstances amounting to a reasonable basis for fearing that the information in the ABS might be misused in one of the ways set out in the draft Amended Master Particulars.

85.

Accordingly, the question raised by this aspect of the respondent's case is whether any of the appellants have set out a reasonable basis for a claim to compensation which might succeed at trial in the light of the principles I have identified above (and in particular at [75], [78] and [81]). Having reviewed a sample of the individual schedules I am confident that a decisive answer to that question can be produced in each case. An answer could, for instance, be given in respect of the first claimant and claimant no 45, whose claims I have outlined above, by scrutiny of their individual schedules. I see no reason in principle why such determinations should not be made at this stage. The appellants have had a sufficient opportunity to state their case and to provide supporting evidence.”

However, at paragraphs 86-87, Warby LJ declined to carry out that exercise and proposed that the High Court should decide whether it should be allocated to a Judge, Master or even the County Court.

In paragraphs 88-92, Warby LJ considered whether an aggravation of a pre-existing medical condition could be relevant damage, but concluded that it all depended on whether the fear which was said to have triggered such aggravation had been reasonably held on objective grounds.

In paragraphs 93 to 95 Warby LJ considered the potential for claims for (mere) annoyance or irritation. He left open whether such would be sufficient for a damages claim but held that they had not been pleaded and so that it was unnecessary to consider them further.

In paragraphs 96-106 Warby LJ considered the Jameel jurisdiction and whether the claims could be described as (paragraph 96) so “(objectively) pointless and wasteful” that they should be seen as an abuse of process and as such be struck out. He held that this was not the case.

I note that within Warby LJ’s reasoning regarding the Jameel aspects are paragraphs 99-105 which read as follows:

“99.

Mr Sharland submitted that it is wrong to look at the claims, however many there may be, in bulk. The right approach is to concentrate on the individual claims and to ask, in each case, whether the claim is an abuse of process. Mr Sharland submitted that each of them is.

100.

Mr Sharland is right on the point of principle. An individual claim is either abusive or it is not; it cannot amount to an abuse of process merely because it is linked with or brought in conjunction with one or more other claims, even if those other claims have features of abuse: see Municipio de Mariana [176]. But I do not think this point helps the respondent.

101.

First, it brings into sharp focus the true nature of the respondent's submission. At its heart is the proposition that any stand-alone claim of the kind brought by these appellants should be dismissed without a trial even if the claimant was able to prove infringement and had sufficiently alleged a legally sustainable and factually credible case for compensation. That would be an extreme conclusion. The damages claim and the likely recovery may in many of the cases be modest. The Irish Supreme Court has said that victims of data breaches who seek compensation "solely for mental distress, upset and anxiety …cannot expect anything other than very, very modest awards": Dillon v Irish Life Assurance (above) at [56]. But some of the claims in this case encompass psychiatric injury. And the modest scale of the likely recovery cannot of itself be sufficient to justify dismissal of the claim. As Lewison LJ observed in Sullivan v Bristol Film Studios [2012] EWCA Civ 570, [2012] EMLR 27, [29] :

"The mere fact that a claim is small should not automatically result in the court refusing to hear it at all. If I am entitled to recover a debt of £50 …it would be an affront to justice if my claim were simply struck out."

102.

Secondly, in deciding whether any individual claim represents an abuse of its process the court must consider all the circumstances of the case. These include the issues in the case, the procedural context in which the claim is brought, and the case management powers available to the court. As Lewison LJ went on to observe in paragraph [29] of Sullivan , the right approach to a modest claim is to see whether there is a proportionate procedure by which its merits can be investigated. Only if that is not possible should the court adopt the last resort of striking out. The judge held that but for the issues as to liability these claims would have been apt for resolution on the County Court small claims track. I agree. It is the issues of principle the case involves that have so far provided the justification for starting and retaining these claims in the High Court. That brings with it a higher level of cost recovery. But in all the circumstances I do not think the respondent can rely on the appellants' choice of venue as a ground for striking out the claims. Nor do I consider that any of the appellants can fairly be criticised for participating in a collective action of the present kind. That approach will normally achieve savings compared to the separate pursuit of hundreds of individual claims.

103.

It seems to me that the real driver of the respondent's position on this point, and the real nub of their argument, is the scale of the costs which that the appellants' legal team have run up and seek to recover in the event of success, coupled with the way the litigation has been conducted. Much was made before the judge of the figures for incurred pre-action costs and estimated costs. These are certainly very large. It was also argued that the litigation had been pursued in a disproportionate way. It was said that no sensible litigant would conduct litigation on that basis given the very modest levels of compensation at stake. Similar arguments were deployed before us. These are serious points, worthy of consideration. But I do not find either of them persuasive.

104.

Notoriously, litigation of limited merit can be used as a weapon of oppression and in particular (though not only) where there is an imbalance of resources. A disproportionate approach can be a feature of such cases. Litigation with such characteristics can amount to an abuse of process especially (though not only) where the defendant's free speech rights are at stake. But it is not Jameel abuse. Nor was this aspect of the respondent's case developed in any sufficient detail on this appeal. For my part, I am not convinced that the appellants' conduct of the claims has involved procedural impropriety. Nor do we have evidence or reason to think there is an inequality of arms. The respondent is, to all appearances, a substantial and well-resourced corporation.

105.

When it comes to the Jameel jurisdiction, the appellants' stated objectives are legitimate. I do not think we can say that a successful outcome would not achieve those objectives to any significant extent. On the other side of the equation it is relevant to note that this is not a case that engages (at least in any meaningful way) Article 10. Mistakenly sending the ABS to the wrong address was not in substance an exercise of the respondent's right to freedom of expression. It was essentially a commercial exercise. The respondent's key interests are purely financial. The scale of the costs incurred is partly explained by the fact that the respondent has chosen to contest issues of principle. That is the respondent's right, but the resulting expense cannot fairly be weighed in the balance against the appellants, at least at this stage. If costs have been incurred that are excessive and unreasonable in all the circumstances of the case the right response is to make appropriate costs orders. As for future expense, the issue is whether this can be kept within the bounds of reasonableness and proportionality by costs and case management. For the reasons I have given, a generic or bulk answer cannot be provided. The question of whether any individual case is abusive can be added to the question I have already identified as fit for consideration by the High Court. The answer may be influenced by how many and which claims survive the applications to strike out or for summary judgment.”

The Court of Appeal decision in Farley is not directly relevant to this judgment as I am not concerned as to whether or not the damages claims which are advanced in the POC are legally sustainable.

However, it is potentially important in relation to the Abuse Ground in relation to such matters as:

It further seems to me that the commercial considerations referred to in paragraphs 102 to 105 of Warby LJ’s judgment have resonance in relation to the hearing before me. In fact Ms Proops did submit that the individual claimants might well have genuine damages claims (at least to some level – she would much dispute Mr Coppel’s £1,000 figure), but she asserted that Barings had so acted that the individual claimants should not be allowed to pursue them against the defendant but rather should have to pursue them (if at all) by the consequential route of a damages claim against Barings.

Following the conclusion of written submissions, I drew the attention of the parties to the fact that the Supreme Court has granted the defendant in the Farley Case permission to appeal to it. I invited the parties to make representations as to whether I should postpone this judgment until after the conclusion of the Supreme Court process. However, both sides stated that they did not wish for me to do so.

With some hesitation, I have decided to proceed with this judgment at this point. I am concerned with the Abuse Ground, and the decision in the Farley Case is only indirectly relevant to that albeit of some potential importance. However, it seems to me to be unlikely that, even if the Supreme Court reverses the Court of Appeal, their judgment would lead to a different answer to the Abuse Ground.

I consider (except with regard to the “6 Further Statements” final element of this section) the following historic matters to be common-ground (and also demonstrated by the evidence before me, being effectively that of Mr Cooper and Mr Malik, supplemented by submissions on instructions from Mr Coppel from which Ms Proops did not seem really to dissent).

Following the ascertainment of the fact of the Data Security Breach, the defendant issued a statement of its occurrence, also stating that they could not say which of the various Pension Scheme members had had their data accessed and/or exfiltrated. The defendant then informed the trustees of the various Pension Schemes of that, and that they were still investigating.

Later in 2023, various of the Pension Schemes Trustees sent out letters to their members (including very many of the claimants) stating the above, and, at least generally, that the defendant said that it had no evidence of any illegal use having been made of any member’s data. Some, at least, of those letters referred to its being possible that various types of personal data had been accessed and/or exfiltrated, and, further, that the members should be alert. Some letters referred to the matter being “worrying news” and advised members to be vigilant to check for any suspicious activity on bank or credit cards.

Barings advertised on the internet that they could act to bring “Data Breach Compensation Claim”s where potential claimants had been notified of data breaches. Their website provided for a number of matters.

The potential claimant was to complete a form giving their personal details, identifying the defendant, and attaching a copy of whatever correspondence they had received notifying them of the relevant data breach.

The website contained links to a “no win no fee agreement”. I have not been provided with a copy of that document. However, the natural assumption is that it was a form of conditional fee agreement relating to Barings bringing a data protection claim on the claimant’s behalf.

The website further contained a link to a “form of authority”. I have not been provided with a copy of that document. However, the natural assumption is that it authorised Barings to act on behalf of the potential claimant in relation to the litigation.

The website further contained a link to a “Data Breach Questionnaire” (being the “DBQ”). That document was to be filled in by the potential claimant with answers to the various questions:

The website further contained a form to be signed by the Claimant following completion of the other documents, and which read:

“I instruct Barings Law to draft a Subject Access Request to obtain any information they deem appropriate and submit it to my Data Controller. I further authorise Barings Law to complete a soft credit check (also known as a soft inquiry) as necessary to validate my identity. This data can also be used to support my claim. I agree Barings Law can use the soft credit check to identify and to advise me of any other claims I may have. I have read the no win no fee agreement in form of authority and agree to Barings Law acting on my behalf in pursuing my claim. I agree that when I sign my name, my electronic signature will be transposed to the no win no fee agreement and form of authority and I will be bound in the same way had I signed them by hand. When I click submit I will be obligated to use the services of Barings Law unless I cancel within the 14 days cooling-off period.”

Each of the individual claimants will have completed such material.

A paralegal at Barings then reviewed the material provided, and, if they thought it appropriate, would seek further instructions. On occasion, individual claimants would provide further instructions.

Mr Coppel used the above material to draft the POC including the wordings used within its paragraph 45 and the POC Tables.

Barings completed the Schedules to the Particulars of Claim by filling in “X”s by reference to the DBQ; and in particular as to how the individual claimant had answered the question “Upon finding out that your personal information had been breached, did you experience any of the following”. In relation to each individual claimant, they would insert in the Schedule whatever that individual had said in answer to the question “Is there any other information that may be of relevance? This is an opportunity for you to expand on any answers that you have already given in this questionnaire.”

Barings sent a copy of the Claim Form and of the POC and Schedules to each individual claimant prior to issue, asking them whether they agreed to its so advancing their claim, and each individual agreed (in some cases seeking a modification of what was being said on their behalf). This is not formally in evidence before me, but Mr Coppel told me that that had happened, and Ms Proops has not sought to challenge it (but rather seemed to accept it as a result of which she did not press the Authority Aspect).

Barings kept the individual claimants informed of the defendant’s attempts to strike-out the claim, and, in particular, of the Applications. No claimant asked for their claims to be discontinued or abandoned. Again, this is not formally in evidence before me (except as I refer to below), but Mr Coppel told me that that had happened, and Ms Proops has not sought to challenge it (but rather seemed to accept it as a result of which she did not press the Authority Aspect).

Six individual claimants have supplied further statements (“the 6 Further Statements”) of what they say they have suffered as a result of the data breaches or being told of them. This is the subject-matter of Mr Malik’s second witness statement which annexes responses.

Those responses each begins with “My solicitors, Barings Law, have asked me to put in my own words how I told them about the way I felt when I was told that personal details about me had been seen by hackers.” They then each make a set of numbered very short statements such as “I also experienced shock due to the data breach.” They each end with “I wrote to Barings, in the following words.” and then appear to quote the final additional information previously provided by their DBQ and which appears in the Schedules.

Ms Proops contends that these statements are not actually in those claimants’ own words. She refers to the pronounced similarities between the various numbered very short statements many of which are in identical words (e.g. “I also experienced shock due to the data breach.”) and which she states is beyond coincidence. Mr Coppel says that I should not so conclude referring me to the quoted opening words and to various relatively slight, but extant, differences between the various very short statements (e.g. “I have experienced distress due to violation experienced by criminal actors having my data”/”I have suffered distress due to violation by unknown criminal actors.”).

At the end of the oral hearing, I directed that Mr Coppel could provide further written submissions in relation to what had happened regarding the process of production of the 6 Further Statements in the light of Ms Proops’ above contentions, my intention being that it could be explained what had happened in support of Mr Coppel’s contention that what appeared in the 6 Further Statement were simply the “own words” of each of those claimants. Mr Coppel used that opportunity to provide much wider further submissions (where, as I consider that Mr Coppel was distinctly limited in time, compared to Ms Proops, for his oral submissions, and Ms Proops had and has taken a full opportunity to reply to them, I have effectively allowed those further submissions to be adduced) but those submissions, while stating that the first six responses received have been adduced, did not touch upon what had been requested of those claimants or in what form or as to how what was provided was said to be simply in their “own words”.

Here I am much disadvantaged by not having any evidence or copy of what Barings actually wrote to those six claimants, and which elicited their various responses. However, the similarities in both the format of their statements and the various very short statements (which are very close in wording to each other and often identical), as well as the full quotes of the final additional information, render it obvious to me to conclude that those claimants were provided with some form of template set of wordings for each to complete.

I find that those templates included various words which were unique to each individual claimant in the form of the final additional information previously provided. However, I consider they must also have included possible versions of the various numbered short statements; as otherwise such similar statements could not have appeared in the final versions as signed by each individual claimant. I also consider, in view of the wordings which appear and their numbering, that each individual claimant did review the templated very short statements to select the words which they regarded as being applicable to them; and, I conclude from the minor differences (including those which I have set out above) that some claimants struck out words or inserted additions of their own.

Ms Proops contends that Mr Malik’s second witness statement and the 6 Further Statements effectively amount to an attempt to deceive the court by stating that the 6 Further Statements are in those individual claimants’ own words; and are a further abuse in themselves sufficient to justify the striking-out of the entire claim of all the claimants. Mr Coppel says that those six individual claimants have simply confirmed that words supplied previously were their own and have been prepared to make other words, perhaps supplied by Barings, their own, and including by adjusting them where they regarded that as being appropriate.

I add that none of the 6 Further Statements actually engage with what Ms Proops otherwise relies upon in relation to the Abuse Ground, being how Mr Coppel has developed the answers to the DBQ into what appears in paragraph 45 of the POC and the Schedules. The Malik second witness statement and the 6 Further Statements more seem to have related to the Authority Ground which has not been pursued; although Ms Proops has sought to take advantage of them as giving rise to a further ground of abuse.

I return to those various matters and any consequences which might flow from them below.

Ms Proops contends that the POC, and the process of their creation and authorisation, are abusive in that Mr Coppel has drafted Particulars of damage which do not accord with the instructions given by the individual claimants. She contends that that is an abuse of process; and potentially also, it was said, professional misconduct on the part of Mr Coppel (and Barings).

She further asserts that now that the POC have taken the form which they do, and have been put to and assented to by the individual claimants; the claimants, and their evidence, have become “tainted” as result, such that they can no longer properly advance or give evidence as to whatever are their cases, and so that the consequence of the abuse is that it is only right that the court should take the draconian step of striking all the claims out. She says that the individual claimants will have some recourse in terms of being able to sue Barings (and, it might be said to follow on this analysis, possibly Mr Coppel).

She said that various statements within the “Description” column of the Tables did not correspond with what could have been extracted from the answers to the DBQ and were thus effectively invented by Mr Coppel. In particular, she submitted that:

She further submitted that Paragraph 45 and the Tables, and in consequence the Schedules, have thus been drafted on a “one size fits all” approach when there was no basis for doing so. What should have happened is that there should have been set out for each individual claimant precisely what they were saying, based only upon their own words, and with the degree of distress etc. which they said they had suffered being strictly graduated and graded. Instead, Mr Coppel had invented his own general wording and put every claimant’s pleaded case at an uniform and very high level; and a set of what must have been varied reactions had been effectively “levelled-up” on a mass basis.

Ms Proops submitted that this was all improper pleading by Mr Coppel, and an abuse of process; and, further in consequence that:

In support of these contentions, Ms Proops drew my attention to various matters of law and authorities.

She referred me to the requirement in CPR22.1(1) for a statement of case (here the POC) to be verified by a statement of truth and to CPR22.1(4) “(4) A statement of truth is a statement that the maker believes the facts stated in the document to be true.” Here Mr Cooper was stating that the claimants believed the facts stated in the POC to be true.

She took me to Clarke v Marlborough [2002] 1 WLR 1731. This related to an application to amend to introduce an alternative case, to which objection was raised on the basis that it was inconsistent with a statement of truth to advance inconsistent alternative factual cases.

The judge held that the proposed pleading infringed the principles underlying the statement of truth requirement, but that a solution was available of making clear that was being pleaded was an alternative (along the lines of “I believe that what happened was A, but if A was not the case, then I believe that what happened was B”) as otherwise claimants would lose the ability to bring genuine claims – see @ paragraph 30.

However, in the course of the judgment, the judge referred to what the actual claimant and what counsel drafting a statement of case should and should not do in paragraphs 20-22:

“20.. The purpose of the requirement that a party should verify the factual contents of his own pleadings was to eliminate as far as possible claims in which the party had no honest belief. The consequence of making a false statement in a document verified by a statement of truth are serious and CPR Part 32.14 provides for proceedings for contempt to be brought in such circumstances. It is therefore important at the outset to identify what Part 22 does and does not require. In relation to a pleading the claimant or other relevant party who puts the document forward as a statement of his case is required to certify that he believes the facts alleged are true. He is not required to vouch for the legal consequences which he seeks to attach to these facts. That is a matter for argument and ultimately for the decision of the Court. The purpose of Part 22 is simply to exclude factual allegations which to the knowledge of the claimant or other party are untrue or which the party putting forward the pleading to the Court is unable to say are true.

21.. In the most simple case the requirements of CPR Part 22.1 will, if observed, exclude untruthful or fanciful claims but the notes to Part 22 also indicate that the purpose of the new rule was to discourage the pleading of cases which when settled were unsupported by evidence and which were put forward in the hope that something might turn up on disclosure or at trial. In these cases judgment had to be exercised by the pleader even under the old Rules of the Supreme Court. It was never proper for a case to be pleaded unless it had some evidence to support it. The practice of requiring a pleading to be settled and signed by Counsel was intended to operate as a confirmation to the Court that the professional rules of conduct had been observed by Counsel when deciding whether or not to advance a particular claim. In its current form paragraph 704 of the Code of Conduct states the rule in the following terms:

“A barrister must not devise facts which will assist in advancing the lay client's case and must not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing:

(a)

any statement of fact or contention which is not supported by the lay client or by his instructions;

(b)

any contention which he does not consider to be properly arguable;

(c)

any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud;

(d)

in the case of a witness statement or affidavit any statement of fact other than the evidence which in substance according to his instructions the barrister reasonably believes the witness would give if the evidence contained in the witness statement or affidavit were being given in oral examination;

provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation of their accuracy by the lay client or witness.”

Although the requirement that there be reasonably credible evidence to support a plea of fraud is not in terms applied to other statements of fact the reference in sub-paragraph (a) to the need for the statement of fact to be supported by the lay client or by his instructions presupposes that the facts are ones in respect of which there is some evidence to justify the pleading.

22.. There may however be cases in which the claimant has no personal knowledge of the events which form the factual basis of the claim. Executors or liquidators of companies are obvious examples. They are often required to investigate matters years after they have occurred with a view to establishing a possible claim. In such cases the same rules of conduct will apply to those whom they instruct but a position will often be reached when the available evidence does not point clearly to any single factual possibility. In a case of alleged undue influence for example it may be possible to infer from the relative positions of the donor and donee coupled with the obviously disadvantageous nature of the transaction that some form of oppressive or abusive behaviour has occurred yet the precise form which the undue influence took can only be established (if at all) at the trial. The evidence at the pleading stage from various potential witnesses may disclose a number of possibilities. In such a case it seems to me perfectly legitimate for Counsel with sight of that evidence to plead out those possibilities as alternatives. There will be evidence to support each plea. The determination of which (if any) of the possibilities was the probable cause is a matter not for the pleader but for the Court at trial.”

Ms Proops submitted that this made clear that Mr Coppel had to confine himself to what his clients (the claimants) had actually said, and especially as here the claimants had full and complete knowledge of their own mental state and thus (unlike in Clarke) of the relevant facts.

Mr Proops further submitted that:

Ms Proops then took me to Medcalf v Mardell 2003 1 AC 120. There the House of Lords considered whether a wasted costs order should have been made against counsel who drafted, on instructions, a pleading alleging fraud and it was said that they lacked “reasonably credible material” upon which to do so and the existence of which was a requirement for counsel to advance such an allegation. The outcome was that the wasted costs order was set aside as the clients refused to waive LPP and it was held that in such circumstances it was not sufficiently clear that counsel had not had “reasonably credible material”.

During the judgment of Lord Bingham, reference was made to the then Bar Code of Conduct in paragraphs 11 and 22:

“11.. Paragraph 606 of the Code of Conduct, headed “Drafting pleadings and other documents”, at the relevant time provided:

“A practising barrister must not devise facts which will assist in advancing his lay client's case and must not draft any originating process pleading affidavit witness statement or notice of appeal containing:

(c)

any allegation of fraud unless he has clear instructions to make such allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud;

provided that nothing in this paragraph shall prevent a barrister drafting a pleading affidavit or witness statement containing specific facts matters or contentions included by the barrister subject to the lay client's confirmation as to their accuracy.”

22.. Paragraph 606(c) lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough. Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation. At the hearing stage, counsel cannot properly make or persist in an allegation which is unsupported by admissible evidence, since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation has been proved the allegation should not be made or should be withdrawn. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it. I could not think, for example, that it would be professionally improper for counsel to plead allegations, however serious, based on the documented conclusions of a DTI inspector or a public inquiry, even though counsel had no access to the documents referred to and the findings in question were inadmissible hearsay. On this point I would accept the judgment of Wilson J.”

The role of counsel was the subject of paragraph 54:

“54.. The professional advocate is in a privileged position. He is granted rights of audience. He enjoys certain immunities. In return he owes certain duties to the court and is bound by certain standards of professional conduct in accordance with the code of conduct of his profession. This again reflects the public interest in the proper administration of justice; the public interest, covering the litigants themselves as well, is now also expressed in Part I of the Civil Procedure Rules. (See also Practice Direction 16 §9.) The advocate must respect and uphold the authority of the court. He must not be a knowing party to an abuse of process or a deceit of the court. He must conduct himself with reasonable competence. He must take reasonable and practicable steps to avoid unnecessary expense or waste of the court's time. The codes of conduct of the advocate's profession spell out the detailed provisions to be derived from the general principles. These include the provisions relevant to barristers which preclude them from making allegations, whether orally or in writing, of fraud or criminal guilt unless he has a proper basis for so doing. Paragraph 606(c), which has already been quoted by my noble and learned friend, requires express instructions and reasonably credible material which as it stands establishes a prima facie case of fraud. All this fits in well with an appropriate constitutional structure for a judicial system for the administration of justice.”

Ms Proops submitted that the pleaded claim must reflect (only) the instructions given by the client, and that it would be abuse for the client to sanction a pleading which did not. Further, that the lawyer must not present any other picture to the client for them to agree because that might taint the client’s own mind and views.

Ms Proops repeated that degrees of emotional harm must vary between individuals and so that it cannot be right to advance or allow to be advanced a pleading which did not seek to graduate or grade between different individuals.

She referred me to Lloyd v Google [2021] UKSC 50 where at paragraphs 86-87 it was said (in the context of allegations that Google had improperly tracked the activities of persons using Apple iPhones):

“86.

In formulating the claim made in this action, the claimant has not adopted the "top down" approach of claiming compensation for damage suffered by the class as a whole without reference to the entitlements of individual class members. The claim advanced is for damages calculated from the "bottom up". The way in which the claimant seeks to obviate the need for individualised assessment is by claiming damages for each class member on what is described as a "uniform per capita basis".

87.

The difficulty facing this approach is that the effect of the Safari workaround was obviously not uniform across the represented class. No challenge is or could reasonably be made to the judge's findings, at [2018] EWHC 2599 (QB); [2019] 1 WLR 1265, para 91, that:

"… some affected individuals were 'super users' - heavy internet users. They will have been 'victims' of multiple breaches, with considerable amounts of [browser generated information] taken and used throughout the Relevant Period. Others will have engaged in very little internet activity. Different individuals will have had different kinds of information taken and used. No fewer than 17 categories of personal data are identified in the claim documents. The specified categories of data vary in their sensitivity, some of them being 'sensitive personal data' within the meaning of the section 2 of the DPA (such as sexuality, or ethnicity). … But it is not credible that all the specified categories of data were obtained by Google from each represented claimant. … The results of the acquisition and use will also have varied according to the individual, and their attitudes towards the acquisition, disclosure and use of the information in question."

If liability is established, the ordinary application of the compensatory principle would therefore result in different awards of compensation to different individuals. Furthermore, the amount of any compensation recoverable by any member of the class would depend on a variety of circumstances particular to that individual. Individualised assessment of damages would therefore be required.”

Ms Proops submitted that this emphasised the importance of each claimant’s claim, and thus their asserted loss and damage, being dealt with and set out individually, and not on a “levelled-up” basis.

Ms Proops did also take me to Farley. She accepted that the Court of Appeal appeared to sanction the use of stock phrases in a multi-claimant case of this form, but submitted that they must properly reflect (even if in different words) only the instructions given without embellishment (and which embellishment she submitted must have occurred in this case), and the individual claimants were also bound to ensure that only that had occurred.

In relation to the consequences of there being an Abuse of Process, Ms Proops reminded me that CPR3.4(2)(b) gives the Court a power to strike-out where there is such an abuse. With regard to the question of whether that power should be exercised in any particular case of abuse, she took me to Tinkler v Ferguson [2021] 4 WLR 27 at paragraphs 29-35:

“28.

The court has the inherent power to prevent misuse of its procedure where the process would be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v. Chief Constable of the West Midlands Police [1982] AC 529 [1982] AC 529 Lord Diplock at 536.

29.

A review of the power to control abuse of process was given by Simon LJ in Michael Wilson & Partners Ltd v Sinclair [2017] 1 WLR 2646 at [39] to [48], ending with this summary:

"(1)

In cases where there is no res judicata or issue estoppel, the power to strike out a claim for abuse of process is founded on two interests: the private interest of a party not to be vexed twice for the same reason and the public interest of the state in not having issues repeatedly litigated; see Lord Diplock in Hunter's case [1982] AC 529, Lord Hoffmann in the Arthur J S Hall case [2002] 1 AC 615 and Lord Bingham in Johnson v Gore Wood & Co [2002] 2 AC 1 . These interests reflect unfairness to a party on the one hand, and the risk of the administration of public justice being brought into disrepute on the other, see again Lord Diplock in Hunter's case. Both or either interest may be engaged.

(2)

An abuse may occur where it is sought to bring new proceedings in relation to issues that have been decided in prior proceedings. However, there is no prima facie assumption that such proceedings amount to an abuse: see Bragg v Oceanus [1982] 2 Lloyd's Rep 132; and the court's power is only used where justice and public policy demand it, see Lord Hoffmann in the Arthur J S Hall case.

(3)

To determine whether proceedings are abusive the court must engage in a close merits based analysis of the facts. This will take into account the private and public interests involved, and will focus on the crucial question: whether in all the circumstances a party is abusing or misusing the court's process, see Lord Bingham in Johnson v Gore Wood & Co and Buxton LJ in Laing v Taylor Walton [2008] PNLR 11 .(4) In carrying out this analysis, it will be necessary to have in mind that: (a) the fact that the parties may not have been the same in the two proceedings is not dispositive, since the circumstances may be such as to bring the case within the spirit of the rules, see Lord Hoffmann in the Arthur J S Hall case; thus (b) it may be an abuse of process, where the parties in the later civil proceedings were neither parties nor their privies in the earlier proceedings, if it would be manifestly unfair to a party in the later proceedings that the same issues should be relitigated, see Sir Andrew Morritt V-C in the Bairstow case [2004] Ch 1 or, as Lord Hobhouse put it in the Arthur J S Hall case, if there is an element of vexation in the use of litigation for an improper purpose.

(5)

It will be a rare case where the litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse of process, see Lord Hobhouse in In re Norris.

To which one further point may be added.

(6)

An appeal against a decision to strike out on the grounds of abuse, described by Lord Sumption JSC in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd (formerly Contour Aerospace Ltd) [2014] AC 160, para 17 as the application of a procedural rule against abusive proceedings, is a challenge to the judgment of the court below and not to the exercise of a discretion. Nevertheless, in reviewing the decision the Court of Appeal will give considerable weight to the views of the judge, see Buxton LJ in the Laing v Taylor Walton case, para 13."

30.

The last point was also made in Aldi Stores Ltd v WSP Group plc [2008] 1 WLR 748, a case best known for the guidance given by Thomas LJ that a party to complex commercial multi-party litigation who wishes to reserve the right to pursue other proceedings must make that clear to the court, so that the court can express a view about the proper use of its resources and identify whether a way could be found to determine the reserved issues in the current proceedings.

31.

The circumstances in which abuse of process can arise are very varied and are not limited to fixed categories: Hunter at 536. Examples can be found in: vexatious proceedings amounting to harassment; attempts to re-litigate issues that were raised in previous proceedings; attempts to litigate issues that should have been raised in previous proceedings (Henderson v Henderson (1843) 3 Hare 100); collateral attacks upon earlier decisions (attacks made in new proceedings rather than by way of appeal in the earlier proceedings); pointless and wasteful litigation (Jameel).

32.

Nor is there any hard and fast rule to determine whether abuse is found or not; the process is not dogmatic, formulaic or mechanical, but requires the court to weigh the overall balance of justice: Johnson at 31, 32 and 34. Indeed, the overriding objective of the procedural rules is to enable the court to deal with cases justly, including when it exercises the power under CPR 3.4. Where there is abuse, the court has a duty, not a discretion, to prevent it: Hunter at 536.

33.

Jameel confirms that the court has the power to strike out a claim as abusive where it discloses no real or substantial tort and where, colloquially, the game would not be worth the candle. This calls for an assessment of the value (in the widest sense) to the claimant of what is properly at stake and of the likely cost (in the widest sense) of the litigation. The jurisdiction is useful where a claim is obviously pointless or wasteful: Vidal-Hall v Google Inc. [2016] QB 1003 . Such cases are to be distinguished from valid claims of small value or cases where vindication is of importance to the claimant and the court should only conclude that continued litigation would be abusive where a way cannot be found to adjudicate the claim proportionately: Ames v Spamhaus Project Ltd. [2015] 1 WLR 3409 [33]-[36] per Warby J citing Sullivan v Bristol Film Studios Ltd. [2012] EMLR 27 [29] to [32] per Lewison LJ.

34.

For completeness, I would note that following the handing down of our draft judgments in the present case, two very recent decisions of this court concerning abuse of process were coincidentally published: Allsop v Banner Jones [2021] EWCA Civ 7 and Pricewaterhousecoopers LLP v BTI 2014 LLC [2021] EWCA Civ 9. We received written submissions from the parties about these decisions, which arose from very different circumstances to the present case.

35.

In summary, the power to strike out for abuse of process is a flexible power unconfined by narrow rules. It exists to uphold the private interest in finality of litigation and the public interest in the proper administration of justice, and can be deployed for either or both purposes. It is a serious thing to strike out a claim and the power must be used with care with a view to achieving substantial justice in a case where the court considers that its processes are being misused. It will be a rare case where the re-litigation of an issue which has not previously been decided between the same parties or their privies will amount to an abuse, but where the court finds such a situation abusive, it must act.”

While that decision related to questions of re-litigation, Ms Proops contended that it set out a general principle, albeit one to be exercised with case, that the Court would take strong steps, which might well include striking-out, when it saw an abuse of process, and would not simply let it lie.

Ms Proops further summarised her contentions as saying that:

Ms Proops did advance some alternative courses which I might take if I did not decide to strike-out, being, in particular:

Ms Proops further relied on the Malik Second Statement and what was advanced in relation to the 6 Further Statements to say that this represented further matters of abuse in that the 6 Further Statements were clearly not in those claimants’ “own words”. Rather they had clearly been at least heavily “templated” with those claimants having been given, at least, material from which to select, rather than those claimants having simply (which she said “in my own words” meant) been given a blank piece of paper upon which to write. She submitted that this was itself an abuse deserving sanction, and should also influence how I should exercise my discretion arising from other abuse. In any event, she submitted that these six individual claimants must in some way have been “cherry-picked” so as support the claimants’ defence of the Applications.

Mr Coppel responded to state, first, that the defendant’s contentions involved very serious allegations of professional misconduct against both him and Barings. He said that they were unfounded.

He said that the defendant’s case on the Applications had somewhat shifted over time from the Authority Ground to the Abuse Ground and that this had affected the formulation of the claimants’ response to it.

I am not sure that that there has been any real alteration to the defendant’s case, where, historically, it seems to me that they have been throughout taking both sets of points. However, having read the claimants’ witness statements, it does seem to me that that Mr Cooper and Mr Malik did not appreciate fully what was being said in relation to the Abuse Ground. That had the result that they only dealt expressly with the claimants having each filled in the DBQ, and not with the question of the claimants’ approving the POC (including the Tables and the Schedules) in their eventual form.

However, as Ms Proops has accepted Mr Coppel’s assertions on instructions that: (1) the POC (including the Tables and the Schedules) were put to the claimants (some of whom required some changes) and who all assented to them, (2) the claimants have been kept informed of the Applications and none have resiled from the POC (including the Tables and the Schedules); I do not think that that gives rise to any difficulty. To that extent the position is common-ground and the claimants do not seek to adduce any further material as to what happened between lawyers and clients (and Mr Coppel says that it would be an invasion of their LPP for them to be required to do so).

Mr Coppel submits that the Court cannot and should not conclude that anything wrongful or improper has happened.

He submitted that it is entirely usual and proper for a client to produce an initial account of relevant events, and for their lawyer to say to them “Are you therefore saying that [xyz] happened?” and the client saying “Yes”. He says that that is just a lawyer clarifying that their impressions are correct, and enabling the client to advance (if the client thinks it to be correct and right) their best case, even if the lawyer’s questions are technically “leading”.

He submitted in relation to the words used in the Tables, in particular, that:

He submitted that:

With regard to authorities Mr Coppel submitted as follows.

He referred to Farley at paragraphs 46-48 and reminded me: that a pleading is not a witness statement or subject to the rules relating to pleading; that stock phrases can be used in a multi-claimant case of this nature; and that the claimants have assented to the words used.

He took me to Josiya v BAT 2021 EWHC 1743 and in particular its analysis of when it was proper to allege a fact, and what might be an abuse justifying a striking-out, at paragraphs 54-57:

“54.

The fundamental question to be considered in this case is whether, on the information available to them, the claimants had any business pleading the nexus allegation in the way that they did as a primary fact rather than as an inference (together with setting out the basis for the inference). This question incorporates whether and when it is proper to sign a statement of truth attesting to the claimants' belief that the contents of the Particulars of Claim are true when, as submitted by the defendants, the signatory to the statement of truth, here Mr Day, did not have the necessary information or foundation for such belief but merely a basis for asserting that the Particulars of Claim, and in particular the nexus allegation, might be true.

55.

The answer is, in my judgment, to be found in the passage from The Brillante Virtuoso [2019] 2 Lloyd's Rep 485 which is set out at paragraph 37 above. At paragraph 534, Teare J queried whether the 'statement of truth' undermined Mance J's rejection of the submission that a party must be taken to know whatever he could properly plead but was persuaded that it did not and he reiterated that the best guide to the meaning of knowledge in this context remains Mance J's threefold test: (1) the matters said to be known must be true; (2) there must be a firm belief in their truth; and (3) there must be sufficient justification for that belief in terms of experience, information or reasoning. We are not concerned at this stage with (1) because that depends upon the eventual findings of the court at trial: frequently, matters are pleaded which turn out to be untrue because of the court's findings. For present purposes, I must assume that what is pleaded in the Particulars of Claim is true, and that includes the nexus or foundational allegation pleaded at paragraphs 49 and 50 of the Particulars of Claim. In those circumstances, the issue is whether the claimants have a firm belief in the truth of the nexus allegation and whether there is sufficient justification for that belief. On the basis of the material and information before me, I consider that it is appropriate to accept Mr Day's assertions to this effect. No bad faith is alleged against Mr Day, and rightly so. Although the statistical reasoning process which has led Mr Day to believe in the truth of the nexus allegation may be erroneous, I am in no position to decide that and make a judgment in that regard. Nor would it be appropriate for me to do so on an application of this nature. I am assured by Mr Hermer that (without waiving privilege) the Claimants are, as he put it, "absolutely satisfied" that the statistical reasoning that they have adopted is based on "a mathematically and statistically … valid formula" and that is more than sufficient for present purposes.

56.

As Mr Hermer submitted, for the court to find an abuse of process pursuant to subparagraph (b), the case needs to be at the extreme end of the spectrum amounting to a significant or substantial misuse of the process, in the words of Warby J in the Duchess of Sussex case (see paragraph 48(i) above). An appropriate statement of the law is to be found in the judgment of Coulson LJ in Cable v Liverpool Victoria Insurance [2020] 4 WLR 110:

"5.1

Abuse of Process

42 Although we were referred to a large number of authorities on abuse of process, the relevant principles can be summarised shortly. The classic summary of abuse of process can be found in the speech of Lord Diplock in Hunter v Chief Constable of West Midlands Police [1982] AC 529 [1982] AC 529 536C:

"My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, it would nevertheless be manifestly unfair to a party to litigation before it or would otherwise bring the administration of justice into disrepute amongst right-thinking people. The circumstances in which abuse of process can arise are very varied … It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limited to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power."

This passage has been cited many times since, most recently by the Supreme Court in Summers v Fairclough Homes Ltd [2012] UKSC 26; [2012] 1 WLR 2004, a case where the claimant had greatly exaggerated his long term disabilities.

43 A working definition of abuse of process, adopted by both leading counsel in this appeal, was set out by Lord Bingham, then Lord Chief Justice, in Attorney General v Barker [2000] 1 FLR 759. At para 19 he defined an abuse of the process as "a use of the court process for a purpose or in a way which is significantly different from the ordinary and proper use of the court process".

This test shows, in my judgment, the kind of case it needs to be for the court to strike it out as an abuse of process, and the present case is a long way from being of that nature. Whilst I accept that a case which is, in the words of Mann J "wholly speculative" I do not consider the nexus allegation to be wholly speculative: on the contrary, there is a clear pathway to be seen for the claimants' tobacco leaves to end up in the hands of the defendants and that is sufficient to take the case out of the "wholly speculative" category.

57.

Both defendants submitted that where the foundation for an allegation, here the nexus allegation, is an inference, it should be pleaded as such and the claimants should plead the factual basis for the inference which they seek the court to draw. In my judgment, this is misconceived: although an inference may form the basis for the belief that the allegation is true to enable the allegation to be pleaded and the statement of truth to be signed, it does not follow that the matter should be pleaded as an inference. The claimants have chosen to plead the nexus allegation as a matter of primary fact, and that is what they will have to prove, in due course. That will be, I have no doubt, on the basis of documentary evidence which has yet to be obtained or disclosed. There is no requirement, though, for the claimants to have possession of that documentary evidence at this stage in order to be able to plead the nexus allegation in the way that they have. As Mr Hermer submitted at the outset of his argument, and as I accept, what is required in order to plead a matter and sign a statement of truth at the start of proceedings, and what is required to prove an allegation at trial are separate and distinct things and an elision of these two fundamentally different concepts lies at the basis of the misconception which has led to the making of these applications.”

He submitted that these claimants had assented to, and therefore should be taken to believe, what is pleaded, and that the court has no justification to go behind that. Further, that this case is nowhere near the high level of abuse which could justify a striking-out.

As to Clarke, he submitted that the purpose of a statement of truth was to prevent a party alleging a fact in which they had no honest belief of its truth. He said that the Court could not properly conclude that that was the case here. All the pleader has and had to do was ensure that the client had had a proper opportunity to review the case which the pleader regarded as being appropriate to derive and plead from the client’s instructions.

He relied on the various authorities to stress that, even if there was an abuse, a high level had to be reached to justify a striking-out. He submitted that such would be particularly inappropriate in this case, where:

Mr Coppel submitted that the Malik second witness statement and the 6 Further Statements simply involved individual claimants stating what they regarded as applying to them, and that it was legitimate form them to say that the statements were “in my own words”. He said that Barings wrote to the first 60 named claimants to invite them to do this and have simply annexed the first 6 responsive statements which they received.

Ms Proops’ various submissions in reply were made in writing. She submitted in particular as follows.

Mr Coppel had, with the rest of the evidence, effectively confirmed that what had happened was as I have set out above, being that following the instructions given through the completed DBQs, Mr Coppel had drafted assertions as to the individual claimants’ states of mind (in particular regarding “tormented”, “violation” and “betrayal”) which were not derived from the answers to the DBQs but rather what the lawyers would like the claimants to allege, and what the lawyers thought it would be useful for the claimants to say, in the circumstances. The claimants had then been invited to agree with that rather than just being given a pleading which reflected their answers to the DBQ (and no more). That, Ms Proops, says is impermissible invention of material by the lawyers and abusive.

Ms Proops repeated that where the lawyers drafted their own versions of what it would be useful for a client to allege, rather than just limiting matters to what each client had said specifically, was not only abusive but would result in the client both simply going along with what the lawyers were proposing and being subject to confirmation bias so tainting anything the client said in the future. She said that the situation was qualitatively different from a situation of a lawyer creating a pleading from instructions by way of reaching a formulation and then asking for approval that that formulation represents the actual instructions. She said that this was a situation of a lawyer ignoring the specific instructions to formulate a general case for thousands of claimants which was an invention of the lawyer and then asking each claimant to sign up to it.

Ms Proops says that there was no real reason to suppose that any individual claimant would have any real worry or torment. Many people would regard a data breach as a fact of modern life, and it was only if a lawyer put the hope of compensation in their mind together with formulations which might justify it, that an individual would then decide to assent to a case which did allege such worry or torment.

She re-iterated that this is not a situation, as in many of the cited cases, of parties, or of individual clients, not knowing what has occurred in a relevant respect. Here each claimant knew what they how they did feel and had felt, and there should be no room for counsel to speculate on the basis that there was a reasonable foundation for thinking that further evidence justifying the pleaded of an uncertain fact might appear prior to or at trial. She said that the pleading of this type of damage therefore had to be limited to each claimant’s actual instructions and recollection as communicated to the lawyers; and without leading questions or invitations from the lawyers to the client to agree possibilities. The lawyers should draft a formulation which was limited to that and without any embellishment.

She challenged Mr Coppel’s attempts to limit the seriousness imputed by the use of the word “tormented”.

She re-iterated that the 6 Further Statements were clearly not in those claimants’ “own words” even if they incorporated words which had been used by those claimants previously.

She also relied upon the Rukhadze decision. That case concerned allegations that various defendants had breached fiduciary duties and conspired to divert business opportunities of a deceased Georgian businessman. The matter was highly complex in relation to liability as to who had done what etc. The Defences of individuals had had a statement of truth signed by a lawyer (Mr Marson) who had had a role in the underlying factual history. At the trial it became clear that there were substantial inconsistencies between the factual contents of the Defences and the evidence given by the individual defendants.

This led Mrs Justice Cockerill (as she then was) to comment (paragraph 42 of her decision below makes clear that this was no part of the ratio for her decision) as follows in paragraphs 34-42 of her judgment:

“The Statements of Truth

34.

Before entering on the full consideration of this case I should deal with one troubling aspect of the procedural position. A number of issues arose as to apparent inconsistencies between the Defendants' pleaded case and the evidence of the Individual Defendants. The Defences advanced for the First to Fourth Defendants featured a statement of truth signed only by Mr Marson. Thus, Mr Rukhadze and Mr Alexeev had not ever signed a statement of truth in relation to the pleading served on their behalf.

35.

Mr Rukhadze plainly did not see that this was a matter of moment, and said this was a matter for his lawyers. Mr Alexeev took the matter fairly lightly, although acknowledging that the signing of a statement of truth was a serious matter. Neither of them appeared to comprehend exactly what a statement of truth was, or to have been taken through the pleading in detail by Mr Marson, ensuring that they approved all relevant factual allegations before the statement of truth was signed. The impression which I received was that Mr Marson had provided a copy for the other Defendants to review and had simply taken their OK to sign it: Mr Marson suggested that " I called or emailed him and said, you know, do I have your authority to sign?". That was broadly consistent with Mr Rukhadze's view that Mr Marson "assumed probably that I had read it and was okay with it". The evidence of course did not cover, and I do not know, what dialogue Mr Rukhadze and Mr Alexeev had with their legal team in this regard.

36.

This illustrates precisely why the rules as to the signing of a statement of truth were introduced. There was a concern under the previous regime for signing of pleadings that it made it too easy for parties to put forward a case which they knew to be untrue or unsupported by evidence, or plead aspirationally, hoping that something would turn up in the course of proceedings: Clarke v Marlborough Fine Art (London) Ltd and another [2002] 1 WLR 1731 at [20-21]. The importance of the requirement of the statement of truth is underpinned by the fact that it is given a whole rule, Rule 22 in CPR, and by the fact that the sanction for breach can be contempt of court.

37.

The bottom line is that the process which was adopted here was defective. It is important that where there are multiple defendants; each defendant reviews and provides either his own statement of truth or his authority to his legal representative to make that statement for him. If composite defences are served, care should be taken to ensure that provision is made for each defendant to review and verify each element of the case as it pertains to him. It is troubling that this question, of ensuring that each individual defendant has signed or approved the appropriate person to sign a statement of truth following a proper consideration of the document, appears to have been be missed; not least because it indicates that a sense of the very real importance of statements of truth may have been lost in the years which have passed since they were introduced.

38.

What was most troubling however, was Mr Marson's evidence on this subject. Mr Marson may not have been a litigation lawyer by training, but he was trained at one of the most prestigious firms in London. Further his role for Hunnewell after the events with which this case is concerned involved his being in day to day charge for Hunnewell of substantial litigation. Yet his evidence was surprising on this point in two respects.

39.

The first is that he gave it as his view that there was no issue with this procedure - he said that he was entitled to sign statements of truth on behalf of the other Defendants as "someone given authorisation". This is not correct. What CPR 22 says is:

(6)

The statement of truth must be signed by -

(a)

in the case of a statement of case, …-

(i)

the party or litigation friend; or

(ii)

the legal representative on behalf of the party or litigation friend; …"

40.

Mr Marson was, as regards Mr Rukhadze and Mr Alexeev, neither their litigation friend nor their legal representative. He plainly regarded this as an irritating formality - he had not checked the position once the issue became live in the proceedings and he appeared completely untroubled by the point even when it was put to him squarely in cross examination.

41.

The second point is that it was quite apparent that he did not seem to grasp, even as he gave his evidence, that it was a matter of real moment that the essential requirement of CPR 22, that the litigant have checked and verified that the factual case which is being advanced on his behalf is true had not been complied with. My impression was that he would not see any reason to change his approach to statements of truth in future litigation.

42.

I note these points not because they have any impact on the issues which I have to determine, but because the facts that Mr Marson, despite his training, could give such evidence and (putting Mr Marson aside) that this situation had been allowed to come about indicates that a clear reminder as to the importance of Statements of Truth and a careful observance of the requirements pertaining to them may not go amiss.”

Ms Proops submitted that the situation in this case was analogous to or worse than Rukhadze as, she said, the lawyers had drafted the POC and the Tables and Schedules on that basis of what they assumed might be true, where the instructions did not go that far, and had not had some detailed conversation with each claimant client to check that each claimant was actually stating that what was being pleaded represented their instructions and beliefs. She submitted that what has happened has now given rise to an “indelible taint”.

Ms Proops further submitted that the situation in Farley was very different from that before me. Farley did not concern an application to strike-out based on abuse. The pleading there (and especially following my 22 April 2022 order) was based on express instructions from each individual claimant; and had been expressly confirmed by each individual claimant; and the use of repetitive stock phrases simply reflected that many of the instructions were themselves repetitive. She repeated her submission here that the relevant parts of the POC, Tables and Schedules especially relating to “violation of the security”, “tormented” and “betrayal of trust” were speculations and assumptions of the lawyers (Barings and Mr Coppel) which they had put into the mouths of the claimants without any sufficient basis arising from the individual claimants’ actual instructions.

Ms Proops distinguished Josiya and other cases as not being concerned with a similar factual situation as that before me and counsel (as she put it) “inventing” allegations.

She re-iterated her contention that all of the claims should be struck-out.

I have considered all the material and submissions before me. Those have included citations of other cases but which I do not consider to be of any particular assistance in adding to what I have set out above. I add that I have noted the ICO Report but I do not see that it impacts on the questions before me which relate to the POC, the Tables and Schedules and how the claimants have advanced their case (rather than its merits or the conduct of the defendant).

Notwithstanding Ms Proops forceful presentation of her submissions, I do not regard it as right to strike-out the claims for the following reasons.

It seems to me to be important to bear in mind a number of general considerations and context.

First, what are being attacked here is a pleading(s) (termed in the CPR “statement of case”). Pleadings are (in this case) drafted by lawyers, not by the individual client claimants, and are the words of those who drafted them (and not of their clients).

Second, pleadings are to be verified by statements of truth which may be (as here) from the legal representative provided they have proper confirmation and authority from their client(s). This is important as there is a strong policy contained within the CPR that assertions of fact should not be advanced in a pleading without the individual claimant having their own belief in their truth (or, possibly – see Clarke – explaining why they are advancing them without having such a belief or, at least, a primary belief).

One of the problems in Rukhadze was that the person who signed the statement of truth was not actually “the legal representative” within the meaning of the CPR. Another problem was that the judge does not appear to have been satisfied on the evidence before her that proper confirmation and authority had been obtained with the client having been properly asked to consider the contents of a complex document relating to complex facts and to properly confirm that they believed in the truth of those facts. Neither seems to me to be the situation before me, and, further, the judge’s comments were no more than comments although I have considered them carefully and borne them in mind.

Third, pleadings are not witness statements or evidence. They are simply a statement of the asserted facts upon which a claimant relies to assert a claim in law (and CPR16.4 provides that the POC must comprise a concise statement of such facts). In due course in the litigation (assuming it proceeds), each claimant will provide a witness statement(s) (from themselves and/or others) which will set out their own factual history and evidence as to their mental etc. states in detail. Those witness statements (unlike the pleadings) are to be the witness’s own words, and, if a lawyer may have drafted them on instructions, are to contain those words. They (and not the pleadings) are the evidence at trial, and where they can be tested by cross-examination. The stage of witness statements has not yet been reached.

Fourth, the eventual trial (should that happen, and which will occur if the claim is not struck-out or settled) will be resolved on the evidence (witness evidence and documents) and not the pleadings (the main purpose of which there is to identify the issues which the court is being asked to decide and which have effects of both defining and limiting those issues).

Further, it is at the trial stage that the witness evidence is tested. Indeed, in the absence of a strike-out application under CPR3.4(2)(a) (no reasonable grounds advanced in the POC) or a reverse summary judgment application (CPR24.3), that is the only stage at which the merits of the claimants’ claims are to be tested.

Fifth, the defendant can always insist, in practice, upon there being provision of a witness statement(s) in relation to the case of each individual claimant. They can refuse to settle without such; and if there is to be a trial of such an individual claimant’s case, it will be almost bound to fail without supporting witness evidence (absent some special event such as the prior death or incapacity of the relevant claimant).

Sixth, even if a “lead claimant” model is eventually adopted so that the 3,973 individual claimants do not have all their claims tried together at once but sample cases are chosen the outcomes of which might be helpful in achieving agreed or judicial resolutions in other cases, that does not prevent the defendant being able to insist upon some form of trial of each individual claimant’s case. As Ms Proops points out in other contexts, each individual claimant is different and will have had a different experience. At first sight, I cannot see how each individual claimant’s damages could be properly assessed (absent agreement) without the court hearing and assessing the evidence of that claimant.

Seventh, what I am concerned here is with Particulars of Damage. Those matters are important, and there generally has to be some real pleading of them. However, the further the wording moves from the mere essence of the assertion of damage, the more risk there is that the pleading ceases to be the requisite “concise statement of the facts” (CPR16.4) and the more a version of the claimants’ evidence (which is for witness statements).

Thus, the mere statement that a claimant has suffered damage would generally be too imprecise. However, a statement that a claimant has suffered “distress” may well be sufficient for an initial pleading (indeed Ms Proops appeared to say that it would be sufficient here), at least in the absence of any direction for Further Information.

On the other hand, Particulars of damage generally have to include a statement of how the relevant breach has caused the relevant asserted damage. That, though, is very case and fact specific. Details of a precise mechanism may well not be required, at least if the causative mechanism (e.g. a vehicle impacting a human body in a road traffic accident case) is obvious. However, what may be obvious to one person may not be so obvious to another.

Eighth, the defendant can seek further information in relation to each individual claimant, including as to what is said to have been effects on them of what has happened and their damages claim, in (at least) one of two ways. One is to make a CPR Part 18 Request. Another is to seek an order for provision of a witness statement(s) – while such are usually directed to be provided after the disclosure process, they can be sought earlier. Whether or not such an order (if resisted) is made is a matter for exercise by the court of a case management discretion in accordance with the overriding objective.

Of course, if Further Information or witness statement(s) are provided by agreement or court direction, the (reasonable and proportionate) costs of the provision of such will be proper costs of the proceedings such that the claimants (at least if successful) will be likely to be entitled to recover them from the defendant. However, if the defendant wishes to have that information, that is a consequence which the defendant will have to face as a matter of choice. There is, of course, potential for criticism of claimants who provide a mass of detail at an early stage where their incurring the costs of doing so might be argued to be unreasonable and it be said that those costs would be irrecoverable.

Ninth, in this case, all that is being attacked is (some of) the Particulars of damage in a context where the factual essence of the liability claim is clear and in the case of many claimants admitted: the defendant had obligations with regard to the Data; the defendant breached at least one of those obligations; the result was that at least some of the claimants had their Data accessed and/or exfiltrated; the claimants were told that of the Data Security Breach and that their Data might have been taken, and with many being told that this was “worrying” and that they should take protective steps. The dispute with regard to which claimants actually had their Data accessed and/or exfiltrated is not related to the issues regarding the pleading of Particulars of damage which are before me.

Tenth, each of the individual claimants: first decided to access the Barings website in order to learn how they might bring a claim; then decided to complete the Barings material in order to initiate the claim; then assented to the POC and Tables and Schedules in their actual form; and has since been informed of but (at least) not objected to Barings’ (and Mr Coppel’s) defence of the Applications.

It seems to me that that conduct on the part of each of the claimants would seem to indicate both that they regard themselves as having suffered meaningful damage and that they were not content to “sit on their hands” and just accept the fact and any consequences of what had happened.

Although Ms Proops may be right to impliedly suggest that any individual claimant would not have brought a claim of this nature without Barings (or other lawyers) providing a commercial mechanism for them to do so; I do not think that their taking those various actions is, at least at first sight, other than because they thought that they had suffered some real damage. While it may be that one or more individual claimants simply saw a chance of make some money, to conclude that that is the case is speculative. What seems much more likely is a real sense of grievance arising from what a claimant perceives that they have suffered or how they perceive that they have been damaged. In any event, that is really a matter for evidence and can only, in my judgment, be tested as part of the witness statement and trial process.

I therefore do not accept Mr Proops’ submission that I should conclude that various (or all) claimants would not have felt particularly hurt unless and until Mr Coppel drafted the Tables in a form which said that they had been “tormented” and/or felt there had been a “violation” or that they had been “betrayed”. It seems to be perfectly possible and natural for a claimant to feel all of those things in the circumstances which I have set out above. They allege that they (and there is evidence – see above – that they or many of them) had been told (at least) that their Personal Data held by the defendant had been hacked, that this was “worrying” and that they should take (at least) protective monitoring steps.

Eleventh, at least in principle (see e.g. Faley at paragraph 101) each claimant is entitled to a judicial determination of their entitlement to damages in the light of what has occurred (and where in many cases breach is admitted, and in the other cases the issues before me are irrelevant to the question of breach and whether or not wrongful access and/or exfiltration has occurred). The Court must consider very carefully, even if it finds there to have been an abuse, whether such should mean that that claimant can no longer pursue their claim against the wrongdoer defendant (see e.g. Farley at paragraph 102 and the general principle that striking out for abuse is a draconian step and as referred to in the above cases and, for example, Summers v Fairclough 2012 UKSC 26 at paragraph 45).

I have carefully considered Ms Proops’ submissions, but I do not think that I should conclude on the basis of the material before me that there has been any abuse of process.

The essential situation is that Barings and Mr Coppel received the completed DBQ forms (possibly with some limited further information from some claimants), formulated the POC and the Tables and the Schedules, and put them to the individual claimants who assented to them. Ms Proops concentrated on the expressions “tormented”, “violation of the security” and “betrayal of trust”; saying that these were invented by the lawyers, not being derived from the instructions and material supplied by the individual claimants, and were advanced on an ungraduated levelled-up basis rendering the damage asserted in relation to very many claimants more substantial than the instructions justified and inducing the claimants to assent assertions of facts which had not been (and was not truly) their belief. This is only a summary and where I have provided a much longer summary above. As to this, my judgment is as follows.

I do not see Mr Coppel (but also by extension Barings) as having been demonstrated to have done anything wrong.

Mr Coppel, as counsel drafting what are pleadings, has a wide latitude to consider how to formulate into the form of a pleading what is being said to him in his instructions. The pleading is the work of the lawyer, it is not the work of the client. Counsel’s duty is primarily to the client, and is to formulate their case in the most effective and high-level way. If counsel do not do so then they are at risk of being sued by their own client.

There is no attack as such on the wordings actually used (although I do consider that they should be revised – see the next schedule below). Ms Proops accepts that it is legitimate to use repetitive or generic phrases where the client properly authorises that – and see Farley at paragraph 48. The attack is rather on how such formulation has come to take place and the use which has been made of it.

In my judgment, there is, of course, nothing to prevent counsel seeking clarifications from their client during the process of formulating (and when advising on) their claim, and they may well be under duties to do so – especially if there is reason to suppose that the claim might be properly put in a higher-level way than that which had presently been intimated by the client. There may be all sorts of reasons (including intellectual and cultural) why a client may not have expressed in their instructions the full import of their claim, perhaps because they do not appreciate what is relevant or what are particular key matters, and part of counsel’s duty is to explore such matters and potential matters with them.

Of course, counsel must only act in this formulating process (and otherwise) so as to comply with their general ethical duties and their obligations to the Court. Although I have not been provided with the most modern version of the Bar Code of Conduct, the parties have been content to rely on the citations from previous versions and the judicial statements which I have set out above.

I note in particular from the section of the then Code cited in paragraph 21 of Clarke (and effectively also in Medcalf) that counsel is not to devise any fact or to advance statements of fact which are not supported by the lay client or their instructions. However:

I also bear in mind that what complained of by Ms Proops cannot, in my judgment, be said to have been formulated with simply no apparent basis. It seems to me that Mr Coppel could consider it as being perfectly likely to have been and to be the case, and in particular as:

I further do not agree with Ms Proops’ contention that counsel cannot put to their own client matters in a leading way. Counsel (and solicitors) have a very wide latitude as to how they seek and receive instructions, and as to how they give advice. They may well be said to be in breach of duty by their client if they do not “drill down” into factual matters and which may involve very detailed leading questions in order to check that nothing material has been missed.

A client may even ask a barrister for details of what are the necessary facts to advance a legal claim or what different factual situations would give rise to different particular levels of damages; and a barrister may well effectively state that as part of giving advice to their client. Although there are obvious dangers in such a course being taken (and which may require warnings to be given), at first sight a client is entitled both to seek and to be given such advice.

Counsel do, of course, have to tailor how they deal with these matters to the individual situation before them. Here there are a very large number of claimants each with a limited claim. At first sight there is good reason to adopt a costs-limited course of advancing a generic allegation of facts provided that each individual claimant is prepared to assent that they believe that allegation as far as they are concerned (and with opportunity to dissent should that be their view of the factual reality). While it may well be necessary that counsel has at least some real basis for formulating the factual allegation before putting it to the individual claimants, that requirement (if it exists) is satisfied here for the reasons given above.

I have considered Ms Proops’ points that various of the individual claimants had said nothing or little in their additional information with their DBQs, and that some had provided additional information which might suggest that they had only limited worry or anxiety. However, the absence of additional information does not, in my judgment, lead to any necessary inference that any anxiety or distress was insubstantial; and it is, in my judgment, controversial as to whether or not any particular wordings of additional information could be conclusive so suggest that any relevant claimant did not feel seriously worried. These matters (and see further in relation to remedy below) seem to me to be matters which would have to be explored in evidence before any step should be taken in relation to them. Further, the fact that there are various different possible constructions of the wording of the Tables (and see further below), and which may also have resulted in different claimants understanding them differently, further reduces the strength of this asserted “inconsistency” argument (as on some constructions, even if Ms Proops is right in relation to some individual claimants, there would be little or no inconsistency).

In this case, each of the relevant individual claimants has had put to them the POC, the Tables and the Schedules in their final form and assented to them in relation to that claimants’ case. I consider that, in the circumstances of this case (and where Mr Coppel had, in my judgment, some real basis for formulating the documents with their actual wordings) to go behind that would require the court having to consider evidence from the individual claimants (which is in principle a matter for trial) and would risk an impermissible invasion of their LPP.

In all those circumstances, I do not see that there has been shown to be any abuse of process. Mr Coppel and Barings had a wide latitude, and while others might have done things differently, I consider on the material before me that they had a real basis for what they did, and, having obtained their individual claimant clients’ assents, they were entitled both to do that and have Mr Cooper sign the statement of truth as he did.

Further, on the material before me, the individual claimants were entitled to act as they did and to decide to assent to the POC, the Tables and the Schedules (and I remind myself of paragraph 48 of the Farley judgment albeit that related to statements of truth which were actually from individual claimants, but, nevertheless, it was held to be a strong thing for a court to reject an assent without hearing oral evidence from the relevant individuals). I do not regard myself as having sufficient material to decide that any one or more of the individual claimants were acting improperly in giving their assent. Whether that was the case is a matter which the defendant, if it wishes to try to pursue it, can seek to explore in cross-examination of individual claimants at trial.

I add here that I find it difficult to follow Ms Proops’ argument that an individual claimant should have refused to assent to something in which they actually believed just because their lawyers had suggested to them that it might be the case; but, in any event, I consider that a claimant is entitled to advance a factual matter in which they believe (albeit at the risk that the court may find it not to be the case) whether or not it was first formulated by them (and otherwise a person could never rely upon their memory having been “triggered”).

I further add that I have noted that Ms Proops accepts that the claimants could have pleaded a case simply by reference to the DBQs even though they did not necessarily set out anything other than bare assertions of anxiety, distress etc. Since such assertions could be at any level of seriousness, and since they would have been elicited by what are plainly leading questions within the DBQ itself (to which Ms Proops did not seem to object), I find it somewhat difficult to see Both why Ms Proops seeks to complain about a more detailed set of assertions as to what are, and what caused, the anxiety and distress And why Ms Proops says that she has a general objection to clients being asked further leading questions as to whether they have suffered damage of certain types and categories. However, Ms Proops would respond to that with her submissions that there has been “levelling up” (but where I find that each individual claimant has assented to what is said in the POC, the Tables and the Schedules) and with regard to the potential for “confirmation bias” (which I deal with below). I therefore have merely noted this rather than relying upon it in coming to my decision that abuse of process has not been shown.

I am, however, distinctly concerned, in the light of what has happened, by the wordings used in the POC and the Tables which Ms Proops attacks. They each seem to me “to be likely to obstruct the just disposal of the proceedings”. That is for the following reasons.

With regard to the use of the word “tormented”; I am satisfied that the word can have a range of different meanings including in the way in which it is used in the Tables, essentially for the different reasons given by Ms Proops and Mr Coppel. While there is a general meaning of a state which is continuing in nature (even if it can be brought to an end) and is of real concern to the victim, there is a potential range between mild/medium annoyance and mental agony.

While, if I had to choose a single meaning, I would be more inclined to favour Ms Proops’ asserted level of seriousness than Mr Coppel’s, I can well see why different readers (including different individual claimants) might have very different understandings of the level of seriousness being imported by the use of the word “tormented” in the Tables.

That leaves a situation which is undesirable, as:

While this reinforces my considerations both that what has happened is not an abuse and that it should not give rise to a striking-out (the individual claimants assenting to the POC and the Tables and the Schedule on the basis of their own individual understandings of the word), in the light of what has happened, I regard the use of the word “tormented” as being such as likely to obstruct the just disposal of the proceedings as a result of the various uncertainties to which I have referred above.

Ms Proops did not seem to object to generalised assertions of anxiety and distress. My provisional view is that there should be a replacement of the word “tormented” with something along the lines of “varying degrees of substantial anxiety and distress”. However, I regard precisely what should happen (including whether there should be any fresh assents by individual claimants) as deserving consideration by the parties and best dealt with at a consequentials hearing.

With regard to the both of the expressions “violation of security” and “betrayal of trust”, I am not convinced by Mr Coppel’s statement that the meanings are necessarily subjective i.e. each relevant claimant actually subjectively thought throughout in express terms of their security having being violated and of a betrayal of trust rather than their suffering anxiety and distress etc. as a result of what they now would assess objectively in those terms. Again, individual claimants could well have read the words differently when deciding for them to be advanced upon their behalves.

Again, for similar reasons as with the word “tormented”, this Both reinforces my considerations that what has happened is not an abuse and that it should not give rise to a striking-out (the individual claimants assenting to the POC and the Tables and the Schedule on the basis of their own individual understandings of the words), And, in the light of what has happened, causes me to regard the use of merely these words as being such as likely to obstruct the just disposal of the proceedings.

I therefore consider that some clarification is required. However, again, I regard precisely what should happen (including whether there should be any fresh assents by individual claimants) as deserving consideration by the parties and best dealt with at a consequentials hearing.

I have borne in mind Ms Proops’ assertion that there should be some graduation of the degree of hurt etc. felt by each individual claimant. Also in these regards I further draw the parties’ attention to paragraph 22 of the decision in Farley. However, subject to the above, it is a matter for the claimants as to how they plead their case, and for the defendant as to whether they seek Further Information. I do not think it right for me to go further than the above in this judgment which is simply dealing with the Abuse Ground.

Although I have decided that there has been no abuse of process, I have considered Ms Proops’ submission that the consequence should be a striking-out of all the claims had I found that there had been abuse of process. I have come to the firm view that (on that assumption) such would not be the appropriate course, and for the following reasons.

First, striking-out for abuse of process is draconian and effectively a matter of last resort to take place only where that is required to maintain the integrity of the court process or to achieve an objective of similar importance. It has to be the proportionate outcome (and reflect the degree and consequences of the abuse).

Second, I do not consider that I have been cited any case which has resulted in striking-out for the reasons advanced by Ms Proops. That does not mean that the jurisdiction should not be exercised if there is a sufficient abuse (the case-law makes that clear) but it does suggest further caution.

Third, to strike-out would be to deny the claimants recourse against the defendant for what in some cases is admitted breach (giving rise, for the reasons set out above, to claims for entitlement to damages which would seem to have real potential foundation) and where in other cases, while liability is in issue, the abuse has nothing to do with the liability aspect. That outcome is draconian and must be considered with care and caution (and see, for example, Farley at paragraphs 101-102).

I do not consider that this point is answered by an assertion that the claimants could then sue their lawyers for the lost value of their claims. That is not a reason for the defendant not to have to pay for its own wrong; and I bear in mind that the defendant would effectively be obtaining a substantial windfall benefit. If the claimants can reliably establish a quantum of loss, I do not see why it should have to be their lawyers rather than the wrongdoer defendant who should pay it.

Fourth, the abuse in question relates to the method of formulation of a pleading. It is not an assertion of any deliberate lie on the part of any claimant whether in written or oral evidence. The court could only come to such a conclusion following a trial on the merits. I find it difficult to see why it should be just to strike out each individual claimant’s claim because of some wrongfulness in how their lawyers have come to formulate the pleading of facts even where the individual claimant believes that what is alleged as a matter of fact is true.

Fifth, I do not consider that what has happened will have given rise to any particular problem either at all or which would not have arisen in any event.

The individual claimants have assented to the formulations used; and I again remind myself of paragraph 48 of the Farley judgment and that it would be strong thing to go behind that without hearing oral evidence from them.

I do not accept Ms Proops’ assertions that what has happened will or are likely to or there is a real risk that they will have given rise to some sort of “confirmation bias” such that individual claimants will have or are likely to have become convinced that they have suffered or are suffering great distress, and indeed “agony”, or some other high level of hurt, when such is not the case.

I consider the assertion to be entirely speculative. I do not, of course, have evidence from any person that such has occurred. Such matters can only be properly tested (if at all) at a trial, and where the defendant can advance such contentions should it so wish.

I have set out in the Tenth point of my General Points above why I consider the claimants’ claims of substantial hurt to have apparent basis and likelihood. I have also referred above to the real possibility that an individual claimant who had not suffered such substantial hurt would have construed the wordings to be consistent with that factual situation. I see no reason to think that some confirmation bias changing and permanently tainting their future evidence is at all likely or that there is any real risk of such. Further, the fact that the matter has been raised now will further lead to the individual claimants having or having had to reassess their positions to consider what are their actual beliefs as a matter of fact. I do not see the defendant’s assertions that there is a real likelihood or risk of a permanent taint as having foundation, and I do not accept them.

I also have a general feeling that the contention is somewhat unreal. As Ms Proops says each individual claimant should have a fair, if not good, understanding and recollection of how they felt in the past and a perfectly good understanding of how they feel now. These matters are not “historic” in any real sense. I do not see any real grounds for the assertion that individual claimants will or might be so affected. Further, Ms Proops’ assertion of psychological effect is one which is, or is at least close to, an expression of expert opinion as to the workings of the human mind, and, if to be advanced, ought really to be supported by expert evidence – and in any case I do not think I should accept it on the limited material before me.

If the defendant’s point is that an individual claimant may be tempted to lie because they know that a finding of “agony” etc. might result in more damages, quite apart from the fact that in my view that consequence would have been obvious to them in any event, the defendant can assert that in cross-examination if the defendant so wishes.

Sixth, the defendant is fully protected by the ordinary rules and course of court procedure. There will be witness statements and the defendant can cross-examine and make submissions based on what has happened (including as to level (if any) of damages and to costs) in due course. That is the way in which damages (if any) would come to be assessed. I do not see that anything has happened which could prejudice that process or its integrity. The defendant is further protected by its ability, if appropriate, to rely on what has happened, and any consequences of it (particularly in the light of whatever happens at a trial) as “conduct” relevant to the Court’s eventual consideration of either side’s applications for costs (CPR44.2(4)(a) and (5), including (5)(c)).

Seventh, if the defendant is concerned regarding any individual claimant as to what exactly they are saying, the defendant can raise a Part 18 Request or seek an early witness statement, and such an application (if there is no consent) can be dealt with on its own merits.

Eighth, if it turns out that any individual claimant decides that they can no longer assent to the contents of the pleading, they will be effectively bound to seek to adjust their case. However, that (and its consequences) would have to be dealt with at that time should it arise. Barings will be bound to inform the individual claimants of that, and of this judgment and the eventual consequential matters regarding adjustment of the wordings, and that will afford a further protection to the defendant.

Ninth, Ms Proops does not object to a much less particularised set of formulations essentially derived purely from the answers to the DBQs but which would allow any individual claimant at trial to assert “agony” etc. If that is the case, it seems to me to be very difficult (subject to what I say above about confirmation bias and tainting) to see what prejudice could happen to the defendant or the court process as a result of the formulation and contents of the present pleading.

Having considered the matter fully on the assumption that I am wrong in holding that what has happened is not an abuse, I am of the view that there is insufficient to justify a striking-out, and which would be disproportionate, and that what I propose with regard to re-formulating wordings would be sufficient (in the context of the rest of ordinary procedure) to protect the defendant and the integrity of the court process.

I would not see it as necessary or appropriate on this Abuse Ground Application to make an order that each individual claimant provides a witness statement as such would, at first sight, involve very considerable expense and possibly be oppressive. I am not ruling out such an order if a specific application for such relief was made with appropriate supporting evidence and reasons, but I do not consider that there is sufficient before me at this point to justify and render proportionate such a course. I do not think that protection of the defendant would require that expense, although there might be other case management reasons (e.g. assistance in resolving the litigation consensually) that might.

I have had some concern regarding the Malik second witness statement and the 6 Further Statements. For the reasons given above, it seems to me that to describe them as being in each of those claimants’ “own words” is being, at least, economical with the truth. As a matter of obvious reality, there must have been some form of templating (at least; and which would include a citation of the words used by that claimant in their DBQ), although I have not been provided with what was actually sent by Barings to those claimants which resulted in their responses, and the view of LPP might well preclude my being able to direct it to be provided (even were I minded otherwise to make such a direction).

However, I do not see this as impacting upon my decision in relation to the Abuse Ground. The point as to “own words” is an obvious one. Those claimants have clearly assented to what is in the 6 Further Statements, and which do include at least some words which were originally their own (the quoted original additional information from their DBQs), and they appear to have made some adjustments to whatever was sent in template form to them. The material does not deal with the way in which the POC and Tables and Schedules came to be formulated which is what the Abuse Ground is above. It could be said to support the contention that those claimants assented to them, but I have that as a matter of common-ground already. It seems to me to be of little real relevance to what I have had to decide.

I therefore have effectively put that material to one side. Whether any consequence should follow as to the costs of its preparation and consideration can be decided (if raised) at the consequentials hearing.

As Ms Proops has not pursued this, I regard it as appropriate to say little about it. However, I do note that the case-law relied upon by her all seemed to be multi-claimant cases where it had become clear that some, and in some cases many, of the asserted claimants had not actually authorised the institution of the litigation by their purported lawyers. At present, I consider that I have no evidence that any of the 3,973 claimants in this case has not authorised the institution and continuance of these proceedings.

In the circumstances, I am going to refuse to strike-out the claims on either the Authority Ground or the Abuse Ground. The parties will have to consider what I say above regarding reformulations, consequential matters and what other applications are being made (as well as what directions are sought regarding the continuance of this matter, and where I remind the parties of the extant appeal to the Supreme Court in Farley).

I add that I am concerned (although not as yet with any outcome or consequence) as to a number of sets of matters, being in particular:

As stated in my circulated draft judgment I am handing down this Judgment at 10am on 9 February 2026 (having not required attendance) from the parties but on the basis that I am going to adjourn the hearing and adjourn (with general extensions of time until further order) all questions of permission to appeal and time to appeal, form of orders and costs to a further date; with the parties to liaise and having until 4.30pm on 2 March 2026 to submit their proposed orders and any applications (including for permission to appeal and time to appeal) and a statement of whether they seek an oral hearing (and if so with a time estimate and dates of Mutual Availability until 30 June 2026).