Data protection — Personal data — “Processing” — Operation commencing with manual selection of information — Information subsequently entered into computer — Whether “processing” for purposes of Act — Data Protection Act 1998 (c 29), s 1

Johnson v Medical Defence Union (No 2)

Ch D: Rimer J: 3 March 2006

{For the purposes of s 1 of the Data Protection Act 1998 there could be relevant processing of data when part of the operation was manual and part was automatic.

Rimer J so held in the Chancery Division `when dismissing a claim brought by David Paul Johnson against the Medical Defence Union Ltd.

The defendant was a mutual society which provided its members with a range of benefits including professional indemnity cover. The claimant was a consultant orthopaedic surgeon who had been a member continuously from 1986. During that time the claimant had been involved in, or had been the subject of, a number of incidents and allegations in the course of his professional life. His record caused the defendant’s risk management department to carry out a risk assessment review in relation to him. That procedure involved a consideration of the claimant’s files by a risk manager. In the claimant’s case, 12 of the files were manual, none of which amounted to a “relevant filing system” for the purposes of s 1 of the Data Protection Act 1998, three were held in electronic form, one was held on a compact disc and one was held on microfiche file. Summaries in relation to all the files were computerised. Particular features of the claimant’s case history were then scored by reference to a standard form system that the defendant applied to its members under its risk assessment policy.. The claimant’s score was at a level which, in accordance with the defendant’s risk assessment policy, justified consideration of his future membership of the union by a committee of senior clinicians. The outcome of that consideration was the termination of his membership. The claimant asserted that his expulsion damaged his professional reputation. He claimed compensation under s 13 of the Data Protection Act 1998 on the ground that the defendant processed his personal data unfairly in breach of the first data protection principle and that that had led to his expulsion from the society. That claim included compensation for damage to his professional reputation. At trial the question arose whether the selection of information by the risk manager constituted “processing” for the purposes of the Act. The defendant contended that the risk manager had not been engaged in any “automatic” processing of the data. In relation to the electronic files she had not made her selection by any “automatic” process but had applied her own non-automatic judgment to the computer database. In relation to the manual files, they did not come into the picture because they were not part of a “relevant filing system”. The claimant contended that it was enough that the material representing the selection which the risk manager made was then held on a computer.

RIMER J said that he accepted that the risk manager’s selection of material from various manual and microfiche files and their inputting into a computer amounted to “processing” within the meaning of the definition of “processing” in s 1(1) as expanded in s 1(2)(a); and that it made no difference that none of the files was or formed part of a “relevant filing system”. Also her selection of information from the computerised files for inputting into the computer similarly amounted to “processing” within the meaning of that definition. However, in the circumstances, unfair processing had not caused the non-renewal of the claimant’s membership and his claim failed. In any event, his claim for compensation for damage to his reputation was misconceived. S 13 entitled a claimant to be compensated for pecuniary damage. A claimant who proved pecuniary damage could also claim compensation for distress caused by the contravention. But s 13 did not permitted the recovery of compensation for general damage in the nature of loss of reputation or for any other general head of alleged loss.

Appearances: Martin Howe QC and Ashley Roughton (Withers LLP) for the claimant; Richard Spearman QC and Jacqueline Reid (Fladgate Fielder) for the defendant.

Reported by: Nick Mercer, barrister