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Halliday v Creation Consumer Finance Ltd (CCF) [2013] EWCA Civ 333 - 15/03/13

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The appellant sought substantial damages under the Data Protection Act 1998 and a sanction under art. 24, Directive 95/46/EC raising the issue of the correct approach to the remedy for distress under s. 13(2).

Appeal allowed. Held: Art. 24 is not directly enforceable by an individual in private law proceedings nor is it the function of the civil court, unless specifically provided for, to impose sanctions. Further, the term 'measures' is not limited to a monetary award and more appropriately concerns administrative remedies and criminal penalties.

S. 13(2) provides a remedy for contravention by a data controller of the data processing requirements of the Act and is not for distress at large. Although it is not necessary for a claimant to prove any ascertainable financial loss under s. 13(1) in order that damages for distress can be recoverable under s. 13(2), the intention of the legislation is to compensate and not to produce a substantial award. As such, the appropriate consequence of the finding of a contravention of the Act, but no identifiable financial loss, is an award of nominal damages, which may be followed by a fact-sensitive assessment of damages for distress or frustration, per the general principle that a complainant is entitled to a remedy for frustration caused by non-compliance with an important European instrument such as data protection.

In the present case, the breach was a result of a single error and there was no contemporary evidence of any manifestation of injury to feelings and distress apart from what one would normally expect from frustration at prolonged and protracted events. In the circumstances, an award of £1 for nominal damages under s. 13(1) and £750 for distress under s. 13(2) was appropriate.

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