Jersey Unreported Judgments

[2004]JCA087

court OF APPEAL

 

14^th May, 2004 

 

 

 

 

Appeal by the Plaintiff/APPELLANT from the Judgment of the Royal Court of 4th September, 2003, whereby the Royal Court dismissed the  Plaintiff/APPELLANT's appeal, brought under Rule 15(2) of the Royal Court Rules 1992, as amended, seeking, inter alia, to set aside the Order of the Master,  dated 27th March, 2003,  striking out the Order of Justice on the ground that it was frivolous, vexatious, or an abuse of process.

 

Leave to appeal was granted by the Royal Court on 4th September, 2003..

 

The Plaintiff/APPELLANT on his own behalf;

Advocate D.J. Benest for the Defendants/RESPONDENTS.

 

 

 

 

judgment

 

the PRESIDENT:

1.        This is an appeal by the plaintiff, Mr H R Cole, against the judgment and acte de justice of the Royal Court (the Deputy Bailiff and Jurats P J de Veulle and A P Quérée) of 4 September 2003 striking out Mr Cole's order of justice issued on 27 March 2002 against two defendants to which I refer as "Jersey Post" and the "Jersey Police".

2.        The factual background was set out clearly and succinctly in the Deputy Bailiff's judgment (to which I wish to pay tribute as a masterly analysis of the issues), and I quote the relevant paragraphs:

 "In October 2001, in response to an advertisement, the plaintiff decided to seek temporary employment over the Christmas period with the Post Office which is managed by the first defendant ("Jersey Post").  He obtained an application form.  According to Jersey Post, all application forms sent out were accompanied by a covering letter which included this sentence -

"Please note that it is standard practice for all references to be checked and for all applicants to undergo a security check before commencing employment".

The plaintiff states that he did not receive this covering letter because he went into Jersey Post to pick up an application form in person.  As this is a striking out application, we proceed on the basis that he is correct and that he did not receive this letter.

The plaintiff duly completed the application form.  The form contained a section headed "CONVICTIONS" in which the question posed was "Have you ever been convicted or found guilty of any offence in a court of law (including honorary police enquiries, juvenile court or court martial) or is any case pending?"  To this, the plaintiff answered "NO".  The form contained the following declaration just before the signature -

"I declare that I have answered these questions truthfully and accurately and that I understand the conditions for employment.  I understand that the particulars given by me might be checked (emphasis added) and that if they are found to be false within my own knowledge I may be regarded as ineligible for recruitment or dismissed after appointment".

The plaintiff returned the completed application form on 30^th October 2001.  He then received an acknowledgement dated 31^st October 2001 confirming that he had provisionally been allocated a position with Jersey Post over the Christmas period "subject to satisfactory police checks".   The plaintiff did not object at any time to a police check being carried out but neither did he expressly indicate his consent.  Jersey Post asserts that the completion of the form and the lack of objection to the acknowledgement letter dated 31^st October amounted to an express, alternatively an implied, consent to such a check. 

The police check showed that the plaintiff did have previous convictions from many years ago.  However, these were convictions that, under the Rehabilitation of Offenders Act 1974 of the United Kingdom ("the 1974 Act"), were spent convictions and therefore would not have to be included in a similar application form being completed in the United Kingdom.  The plaintiff asserts in his order of justice that that is why he answered 'No' to the question in the form concerning previous convictions.  He assumed that the 1974 Act was applicable in Jersey.  On 13^th November 2001, having received the result of the police check, Jersey Post withdrew its provisional offer of temporary employment." 

3.        Before turning to consider the different causes of action on which Mr Cole has sought to rely, I should consider briefly some of the specific allegations in the order of justice which the Royal Court struck out.

4.        Mr Cole set out the primary facts on which he relies in paragraphs 1 to 20, making it clear that it is a central plank of his case that he did not give his consent to the disclosure by the English Police to the Jersey Police or by the Jersey Police to Jersey Post of his spent convictions of long ago in England.

5.        It is convenient here to record that Advocate David Benest (whose assistance to this Court and to Mr Cole as a litigant in person was in accordance with the high standards of the Jersey Bar) accepted for the purposes of the application to strike out that consent was not given expressly, though his clients would seek to rely on the documents sent to Mr Cole by Jersey Post and his signature of the first (the application form) and his lack of response to the second (the letter of 31^st October, 2001) as conveying by necessary implication the required consent.

6.        Mr Cole referred to the United Kingdom statute, the Rehabilitation of Offenders Act 1974 ("the 1974 Act"), as rendering his convictions spent.  I assume, for the purposes of the present appeal only, that that is correct.  If so, pursuant to section 4(3)(b) of the 1974 Act, his convictions, under English law, would not be a proper ground for excluding him from employment, and pursuant to section 9 of the 1974 Act, disclosure by the English Police to the Jersey Police without Mr Cole's consent could have resulted in the English officer who made the disclosure being potentially guilty of a criminal offence.

7.        Mr Cole referred to the European Convention on Human Rights ("the ECHR") and relied on the violations he alleged of certain of the rights and freedoms under the ECHR.  The position in this regard is that the ECHR has not yet been incorporated into Jersey law, the Human Rights (Jersey) Law 2000 having not yet been brought into force.  So in the Jersey Courts Mr Cole cannot complain directly of a breach of the ECHR.  But the ECHR can be relied on in the three respects described by me in Benest v Le Maistre 1998 JLR 213 CofA at page 218.  Of these respects probably the third is potentially the most relevant here, "when the common law is uncertain".

8.        Mr Cole relied on the 1974 Act as affording him a cause of action.  But he has now recognised that he cannot rely on a United Kingdom statute in this way in the Courts of Jersey, and before us did not seek to pursue this.

9.        Mr Cole referred to the Data Protection (Jersey) Law 1987 ("the 1987 Law") and seeks to rely on this as affording him causes of action.  This I will have to return to later in this judgment.

10.      In a number of paragraphs of the order of justice Mr Cole indicates that he relies on the disclosure of the convictions which were spent under English law by the Jersey Police to Jersey Post as being "a violation of his privacy": see e.g. paragraph 31.  As will appear later, this is a matter of no little importance in the context of the present strike-out application.

11.      Mr Cole alleges that Jersey Post owed him a duty of care (of which they were in breach): (i) to draft their employment application forms so as to show clearly what their policies were on spent convictions; (ii) to ensure that express consent was obtained from applicants such as Mr Cole before disclosure of any convictions, let alone spent convictions, was sought from the Police: see e.g.  paragraph 30.

12.      Mr Cole alleges that the Jersey Police were not only in breach of the 1987 Law, but also owed him a duty of care (of which they were in breach) (i) to check and be satisfied that he had given express consent or authority to Jersey Post to seek details from police records, before providing any such details to Jersey Post (see e.g. paragraph 32), and (ii) to exercise a high standard of security before and when disclosing information on a citizen's criminal record to another person (see e.g. paragraph 40).

13.      In the light of this pleading the Royal Court deduced that the following causes of action were being relied on by Mr Cole (see paragraph 6 of the judgment: I ignore one which Mr Cole no longer relies on):

(i)        a claim against the Jersey Police for breach of the 1987 Law;

(ii)       a claim against both defendants for breaches of the ECHR or the Human Rights (Jersey) Law 2000 ("the 2000 Law") by reason of the disclosure and use of Mr Cole's spent convictions without his consent;

(iii)      a claim in negligence against Jersey Post: see paragraph 11 of this judgment;

(iv)      a claim in negligence against the Jersey Police: see paragraph 12 of this judgment.

14.      What the Royal Court did not consider was whether any potential claim lay against either defendant based on the alleged violation of Mr Cole's privacy: see paragraph 10 above.  To this I will return later.

15.      In relation to the four causes of action set out in paragraph 13 above, the Royal Court dealt very fully with the legal bases of those causes of action, and in my judgment correctly.  I would be content to adopt the reasoning of the Royal Court without more.  But in deference to the arguments of Mr Cole (which he put forward with ability) and of Advocate Benest, I will quite briefly consider each cause of action.

The 1987 Law

16.      The Royal Court analysed the provisions of the 1987 Law at length in paragraphs 16 to 34 of its judgment, concluding that Mr Cole has no basis for a cause of action against the Jersey Police for breach of any provisions of the 1987 Law.  The Royal Court went on, in paragraphs 35 to 40 of its judgment, to conclude that no private law action lies at the suit of Mr Cole for any breach of the 1987 Law provisions.

17.      As regards Article 22 of the 1987 Law provision is made in paragraph (1)(c) of that Article for an individual to recover compensation from a data user for any damage or distress resulting from disclosure of data relating to the individual, or access having been obtained to the data, without the authority of the data user.  I emphasise these last words - "without the authority of the data user" - because, as the Royal Court stated, it is the data user, i.e. the Jersey Police in the present case, which has to give authority, not the individual concerned.  Clearly here the Jersey Police did give the necessary authority.  In any event paragraph (i)(c) of Article 22 does not apply to disclosure to or access by any person specified in the register entries relating to the Jersey Police, and Jersey Post is such a specified person.  Accordingly no claim lies under Article 22.

18.      In Article 21 of the 1987 Law provision is made for an individual to be entitled to compensation if the individual suffers damage or distress as a result of inaccuracy of the personal data held by a data user relating to that individual.  Mr Cole does not allege any such inaccuracy.

19.      The suggestion seems to have been made that Mr Cole might have a cause of action for breach of a provision of the 1987 Law making such a breach a criminal offence, and not the basis for a claim for compensation.  Reference was made in this regard to Article 4(2) of the 1987 Law.  Under this paragraph a registered data user is not to (c) obtain personal data to be held by the data user from any source not described in the register entry, and (d) disclose personal data held by the data user to any person not described in the register entry.  The data concerning Mr Cole's spent convictions were obtained by the Jersey Police from a source described in its register entry and disclosed to a person (Jersey Post) also described in the register entry.  Mr Cole cannot in any event found any claim on any breach of Article 4(2) for these reasons.  I do not, therefore, go on to deal with his difficulty in trying to create a civil cause of action out of a statutory provision by which breach is specifically made only a criminal offence in certain circumstances.  Mr Cole has not relied on any other provisions relating to criminal offences, except Article 4(2)(b) to which I will come later.

20.      Other provisions of the 1987 Law contain remedies by way of enforcement notices by the Registrar, who (I note) was permitted to and did make oral submissions before the Royal Court.  Provision is made in Article 9 for the service of enforcement notices when the Registrar is satisfied that a person has contravened or is contravening any of the data protection principles contained in the First Schedule.  The Royal Court dealt with the only potentially relevant principles (the second and third principles) in paragraphs 25 and 26 of its judgment.  For the reasons there set out no breach of such principles has been shown to exist on the part of the Jersey Police.

21.      I also agree with the Royal Court's analysis of Article 33(5) of the 1987 Law in paragraph 28 of its judgment.

22.      Finally, under this head, I turn to Article 4(2)(b) which makes it an offence in certain circumstances to hold or use personal data for any purpose other than the purpose or purposes described in the register entry.  The Royal Court considered this provision in the light of the third Data Protection Principle, that "Personal data held for any purpose or purposes shall not be used or disclosed in any manner incompatible with that purpose or those purposes".  This has to be read in conjunction with the specified Interpretation provision that "Personal data shall not be treated as used or disclosed in contravention of this principle unless -

(a)  used otherwise than for a purpose of a description registered under this Law in relation to the data; or

(b)  disclosed otherwise than to a person of a description so registered."

The purpose for which personal data are held or used by the Jersey Police is stated in the Register entry as "policing", and also (inter alia) "for ACPO approved background checks."

23.      The disclosure of Mr Cole's spent convictions to Jersey Post was in my judgment plainly not a "use" of the data, but a "disclosure".  It was a disclosure to a person of a registered description.  Accordingly there was no breach of the third Principle.  The disclosure was governed by Article 4(2)(d), not Article 4(2)(b), and as I have already shown there was no breach of the Article 4(2)(d).

24.      I do not propose to duplicate the consideration by the Royal Court in paragraphs 35 - 40 of the possibility that Mr Cole might be able to found a private law cause of action on the statutory provisions of the 1987 Law, e.g. Article 4(2)(b) or the third Principle.  In my judgment there was no breach of these provisions, and in those circumstances to seek to build a breach of statutory duty giving rise to a private law cause of action on these provisions would be to attempt the impossible.

Breach of the ECHR or the 2000 Law

25.      The 2000 Law is not in force, and no claim can be based on it.  The ECHR is not part of Jersey law, and no claim can be based on it directly.  The relevance of the ECHR is as set out in paragraph 7 above, and I will return to this below.

Negligence of Jersey Post

26.      No claim in negligence could be made against Jersey Post without establishing the three central requirements: (i) a duty of care owed by Jersey Post to Mr Cole; (ii) a breach of that duty; (iii) damage flowing from that breach: see Jersey Financial Services Commission v A P Black Ltd [2002] JLR 443 CA at paragraph 20, and Arya Holdings Ltd v Minories Finance Ltd [1997] JLR 176 CA.  I agree with the Royal Court that no such duty covering the respects in which Mr Cole seeks to claim (see paragraph 11 above) arises or can arise.  None of the requirements for the creation of such a duty is present.  The duty suggested by Mr Cole would potentially fall on all employers when dealing with applicants for jobs, and there is no basis for the creation of so wide-ranging a duty on employers who remain free to choose whom to employ (subject to the discrimination legislation), as the decision of the English Court of Appeal in Kapfunde v Abbey National plc [1999] Lloyds Law Reports: Medical 48 shows.

Negligence of the Jersey Police

27.      I also agree with the Royal Court that no basis for a claim in negligence against the Jersey Police, sought to be founded in the respects set out in paragraph 12 above, has been established by Mr Cole.  As I have stated above, no claim lies against the Jersey Police for breach of the 1987 Law.  It was for Jersey Post, not the Jersey Police, to obtain any consent from the subject of the data they requested and obtained from the Jersey Police.  Mr Cole's convictions were not spent under the law of Jersey (the Rehabilitation of Offenders (Jersey) Law 2001 not yet having been brought into force), and it was for the UK Police, not the Jersey Police, to have regard to the legal position in England that his convictions in the United Kingdom had become spent under English law.

Conclusions so far

28.      In my judgment each of the causes of action relied on by Mr Cole before the Royal Court, and considered by that Court, is doomed to fail.  He should not be permitted to pursue any of those causes of action, not least because that would result in a waste of expense to the defendants, potentially large liability of Mr Cole for the defendants' costs, and waste of the Courts' limited resources and time.

Breach of Confidence

29.      As mentioned in paragraph 10 above Mr Cole relied in his order of justice on "a violation of his privacy".  In the course of Mr Benest's argument I drew attention to the equitable and/or common law duties of confidence and asked him overnight to research these, and in particular the recent decision of the House of Lords in Campbell v MGN Limited [2004] UKHL 22, as yet only reported on the UK Parliament website.  Though there was a division of opinion in the House of Lords as to the result of the appeal in Campbell, their lordships were agreed as to the nature of a claim for breach of confidence, or as put by Lord Nicholls in paragraph 14 as "misuse of private information".   As Lord Nicholls also said in paragraph 17 of his speech, the values enshrined in Articles 8 and 10 of the ECHR are now to be regarded as part of the cause of action for breach of confidence: see also Lord Woolf LCJ in A v B plc [2003] QB 195 at page 2002.  Accordingly, if Mr Cole were to formulate a sustainable claim for breach of confidence, he would be able to rely on those Articles of the ECHR as part of his claim, even though they are not yet made directly a part of Jersey law.

30.      It is not necessary for me to enter on a detailed examination of the five speeches in Campbell to ascertain the precise ambit of such a cause of action, for this reason.  Mr Benest accepts wisely and correctly, that Mr Cole, having foreshadowed in his existing order of justice a claim for "violation of his privacy", should now be given an opportunity to seek leave to amend his order of justice to set out the basis on which he seeks to put a claim for breach of confidence or misuse of private information, if Mr Cole were to wish and to decide to do so.  If this course were adopted, it would be for Mr Cole to seek to persuade the Court that, in the circumstances to be pleaded by him, such a claim is reasonably arguable, and accordingly he should be allowed to amend and to pursue such a claim to trial.

Conclusion

31.      In my judgment the causes of action now relied on by Mr Cole are unsustainable.  I would order that within a period to be specified

(i)        Mr Cole is to amend his order of justice by deleting from it all references to these causes of action and to the facts referable solely to these causes of action; and

(ii)       Mr Cole, if he so wishes, is to be permitted to formulate a draft amended order of justice setting out only the facts and other matters on which he seeks to rely in support of a cause of action for breach of confidence or misuse of private information; and

(iii)      Mr Cole is to apply to the Royal Court for leave to amend his order of justice in accordance with (i) and (ii) above.

If Mr Cole does not seek to amend his order of justice in accordance with (ii) above and within the period to be specified, the order of justice should in my judgment be struck out without the necessity for any further application.

Authorities

Smith -v- Cosworth Casing Processes (28^th March 1997) Times Law Reports

Data Protection (Jersey) Law, 1987

Data Protection Act 1998

Directive 95/46/EC of the European Parliament & of the Council of 24^th October

Benest -v- Le Maistre (1998) JLR 213

Cooper -v- the Lieutenant Governor (7^th June 2001) Jersey Unreported; [2001/129]

X (Minors) -v- Bedfordshire County Council (1995) 3 WLR 152, HL

Stovin -v- Wise (1996) 3 WLR 388, HL

Kapfunde -v- Abbey National PLC (1999) Lloyds LR 48, CA

Royal Court Rules 6/13 (Striking Out)

RSC Ord 18.r.19 and Notes

Jersey Financial Services Commission v A P Black Ltd [2002] JLR 443 CA at paragraph 20

Arya Holdings Ltd v Minories Finance Ltd [1997] JLR 176 CA.