On 1 February 2024, Mrs Justice Steyn handed down judgment in Trump v Orbis Business Intelligence Limited [2024] EWHC 13 (KB) – denying the former US President’s amendment application and granting Orbis’s strike out / summary judgment application over the remainder of the claim.

Background

The case concerned the so-called “Steele Dossier”, a collection of 17 intelligence memoranda on Russian interference in the 2016 US election, prepared by Orbis between June and December 2016 and subsequently published to the world-at-large by Buzzfeed News. Mr Trump brought a data protection claim in relation to the processing of his personal data by Orbis in connection with two of the memoranda (“the Memos”), including on the basis that various allegations made in the Memos were inaccurate.

This is the third claim brought against the Orbis in respect of the Steele Dossier in this jurisdiction. The others were Aven v Orbis Business Intelligence Ltd [2020] EWHC 1812 (QB), a data protection claim which succeeded in part, and Gubarev v Orbis Business Intelligence [2020] EWHC 2912 (QB), a failed libel claim.

Amendment Application

Mr Trump’s application sought to amend the Claim Form under CPR 17.1, or alternatively CPR 17.4, to add a cause of action under the Data Protection Act 1998. These had been articulated in the Particulars of Claim but, importantly, had not been included in the original Claim Form (which had been issued nearly four months earlier and referred only to the subsequent legislation, the Data Protection Act 2018 and UK GDPR).

The judgment helpfully walks through the existing case law, including in particular the Court of Appeal decision in Evans v Cig Mon Cymru [2008] 1 WLR 2675, on when an amendment falls to be considered under CPR 17.4 rather than CPR 17.1 ([46]-[52]). On the facts, Steyn J concluded that the case could be distinguished from Evans as:

  1. unlike in Evans, there was no explanation for the absence of the DPA 1998 in the Claim Form and no indication that a clerical or administrative error was made;
  2. the Particulars of Claim were not drafted contemporaneously with the Claim Form and were clearly informed to a significant degree by correspondence following the issuing of the Claim Form; and
  3. the modification of words required was far more extensive than in Evans (where a single word required amendment) ([53]-[54]).

In considering the application of CPR 17.4, Steyn J followed the standard four-stage test as set out in Mullaley & Co Ltd v Martlet Homes Ltd [2022] EWCA Civ 32, ultimately concluding that the new cause of action did not arise out of “the same or substantially the same facts” as the existing claim because:

  1. the acts of data processing on which the new claim was based were entirely different and new facts would clearly have to be added and investigated if permission were granted;
  2. in particular, on the facts, acts of dissemination of the Memos were at the heart of the DPA 1998 claim but were not in issue under the existing claim; and
  3. the time periods of the new and existing causes of action were mutually exclusive ([81]-[86]).

Given that conclusion, it was unnecessary for Steyn J to proceed to the fourth stage of the test and determine whether to exercise her discretion to permit the amendment. Nevertheless, she indicated that she would have declined to do so. In reaching that conclusion, she considered, for example:

  1. the fact that the Mr Trump had given no explanation for his delay (seemingly in relation both to issuing the proceedings and then subsequently seeking to add the DPA 1998 claim);
  2. the “policy of the law that a person who wishes to vindicate their reputation should proceed expeditiously”, noting that this was a particularly weighty factor where there was no (adequate) explanation of delay; and
  3. prejudice that would be caused to the Orbis ([88]).

In the context of making limitation arguments under CPR 17.4, Orbis had also sought to advance a case that, as under libel law, a “shadow limitation defence” of one year should apply to claims for compensation for reputational harm. Orbis relied on Warby J’s (as he then was) observations in Rudd v Bridle [2019] EWHC 893 (QB) and Sicri v Associated Newspapers Ltd [2020] EWHC 3541 (QB) in this regard. This argument was not accepted by Steyn J who reaffirmed that the limitation period for data protection claims is six years ([62]-[71]) (although as noted in the preceding paragraph, it appears that she did consider acting expeditiously to be a relevant factor to the exercise of the Court’s discretion).

Finally, it is worth noting that Steyn J rejected, at the outset, Mr Trump’s suggestion that the Orbis’s objection to the amendment was “wholly technical” as the Claim Form could have been amended without permission before service, explaining that “an objection based on the expiry of a limitation period can always be described as technical, but such characterisation does not alter its effectiveness” ([42]). This serves as a helpful reminder of the importance of bearing in mind limitation periods when issuing, or seeking to amend, a claim.

Strike Out / Summary Judgment Application

 Following the dismissal of Mr Trump’s amendment application, the only processing that remained in issue in relation to Orbis’s strike out / summary judgment application was the retention and storage of the Memos by Orbis from 25 May 2018.

Orbis’s evidence in that regard was, in summary, that (i) the Memos had been deleted / destroyed by the end of January 2017 at the latest; (ii) since that date the Memos had only come back into Orbis’s possession for the purpose of legal proceedings (and generally had been destroyed / deleted at the conclusion of such proceedings); and (iii) based on searches of Orbis’s systems, the only copies of the Memos currently in its possession were those sent to it by Mr Trump’s lawyers and copies annexed to two subpoenas received in the context of separate US legal proceedings ([111]). In short, the acts of processing were “minimal” ([136]).

In that context, Steyn J concluded that the remaining claim for compensation and/or damages under the UK GDPR and DPA 2018 was “bound to fail” ([143(i)]). In particular, she commented that:

  1. mere retention and storage by Orbis could not realistically be said to have caused Mr Trump distress, particularly where this had not caused the Memos to “come to the attention of anyone” and they were freely available on the internet ([117]-[121]);
  2. awarding nominal damages in those circumstances would be contrary to the decision in Lloyd v Google [2021] UKSC 50, which although decided under the DPA 1998 was unambiguous and requires damage to have been suffered “as a result of a contravention or infringement of the data protection legislation” ([122]-[124]); and
  3. Parliament had created a cause of action and it “is not for the court to supplement the statutory remedy of compensation with a non-statutory remedy of damages” ([125]).

Steyn J similarly dismissed the claim for a compliance order. Mr Trump’s Counsel had already conceded, during argument, that a compliance order for erasure would have “no point” ([131]) and the Judge held that a compliance order to restrict further processing (which had, in any case, not been sought in the Claim Form) was “based on nothing more than a speculative hope that more significant acts of processing than mere storage of the Memoranda might come to light” ([135]).

Given the above, Steyn J concluded that there was no compelling reason to allow the claim to proceed to trial and that “in reality, the Claimant [was] seeking court findings to vindicate his reputation in circumstances where [he] has not been able to formulate any viable remedy” ([143]).

Comment

This decision is of course a salutary reminder of the importance of selecting the appropriate cause of action and complying with limitation periods, but it also confirms the scope of the Court of Appeal’s decision in Evans and the application of the judgment in Lloyd v Google to claims under the DPA 2018.

Rebecca Kirtley is an associate in the media litigation team at Bristows. Bristows acts for the Defendant, Orbis Business Intelligence Limited.