The Irish Supreme Court recently granted the Plaintiff leave to appeal against a High Court decision in Dillon and Irish Life [2024] IESCDET 92, in which the Plaintiff sought compensation for non-material damage suffered following an alleged infringement of the GDPR.
The Supreme Court acknowledged that whether a claim for non-material damages for “distress, upset and anxiety” under the GDPR is to be regarded as a claim for damages for “personal injury” within the meaning of the Civil Liability Act 1961, and requires the Plaintiff / Applicant to obtain authorisation from the Personal Injuries Assessment Board (“PIAB”) to bring the claim, are issues of general public importance. The Supreme Court noted that these issues are of “significant practical importance for litigants and for the courts dealing with data protection claims”. Once the Supreme Court hears the appeal and delivers its decision, it will undoubtedly have a significant impact on how non-material damage claims are pleaded and advanced going forward.
The High Court decision
The Plaintiff first brought proceedings in the Dublin Circuit Court, alleging that Irish Life had wrongfully disclosed his personal data to an unauthorised third party, resulting in “distress, upset, anxiety, inconvenience, loss and damage”. The Plaintiff held a life assurance policy with Irish Life, and a number of letters relating to that policy, containing the Plaintiff’s personal data, were allegedly sent to the third party over an extended period of time. The Circuit Court dismissed the proceedings on the basis that prior authorisation had not been obtained from the PIAB (now known as the Injuries Resolution Board), as required by the Personal Injuries Assessment Board Act 2003 (the “2003 Act”).
The Plaintiff appealed the decision to the High Court, arguing that his claim was a claim for non-material damages pursuant to the GDPR rather than a personal injuries action. The High Court upheld the decision of the Circuit Court and found that damages sought in respect of, inter alia, “distress, upset and anxiety” arising from an alleged GDPR infringement were in the nature of personal injuries requiring prior authorisation from PIAB. The High Court found that, notwithstanding the fact that damages may not be recoverable in respect of such impairments, they nevertheless fall within the definition of “personal injury” as defined in the Civil Liability Act 1961 and the 2003 Act. In delivering its decision, the High Court referred to (and sought to distinguish on the facts) the earlier decision in Keane v Central Statistics Office [2024] IEHC 20 (see our previous commentary on that decision here). The High Court also found that requiring authorisation from PIAB prior to seeking damages for an alleged GDPR infringement is not incompatible with EU law. The High Court noted that such actions were governed by national procedural rules, subject to the principles of equivalence and effectiveness.
Application for leave to appeal to the Supreme Court
The Supreme Court, in granting leave to appeal, considered that:
- The Court has never had to consider the concept of “non-material damage” or the interaction of that concept with the domestic procedural rules governing claims in tort, including under the 2003 Act.
- Whether a claim for non-material damage made pursuant to Article 82 of the GDPR and/or section 117 of the Data Protection Act 2018 comes within the 2003 Act, and in particular whether a claim by a data subject for damages for “distress, upset and anxiety” arising from an alleged GDPR infringement is to be regarded as a claim for damages for “personal injury”, is an issue of general public importance.
- Whether, in this context, distress, upset or anxiety are properly characterised as a form of “personal injury”, albeit injury for which damages are not recoverable, or a form of “harm” not constituting “personal injury”, at all is an important and novel issue.
- The judgment of the High Court also gives rise to an issue as to whether a requirement for PIAB authorisation is compatible with Article 82 of the GDPR.
- Its prior decision in Murray v Budds (which was referenced and considered by the High Court) did not involve any issue of data protection or any EU law issue more generally and the context of the Court’s discussion on whether the claim at issue was a claim for “personal injury” is quite different to the context here.
- In terms of the existence of exceptional circumstances justifying an appeal from the High Court, the Supreme Court noted that no other avenue of appeal was open to the Applicant here, given that no appeal lies to the Court of Appeal from a decision of the High Court on appeal from the Circuit Court.
In light of these factors, the Supreme Court was satisfied that the matters identified by the Plaintiff in the application seeking leave to appeal were matters of general public importance and that an appeal is in the public interest.
Commentary
There have been a number of decisions delivered by the Court of Justice of the European Union over the course of the past 12 - 18 months which have provided a welcome degree of clarity on how Article 82 of the GDPR ought to be interpreted, insofar as the right to compensation for non-material damage is concerned. The outlook is, however, less clear in the domestic Irish context with regard to the procedural requirements applicable to certain claims for non-material damage, at least for now. There has been a distinct and observable trend in plaintiffs pleading distress, upset, anxiety, and similar, in cases where non-material damages are sought for infringement of data protection rights.
If the Supreme Court upholds the decision of the High Court, the requirement to seek PIAB authorisation before commencing such claims will continue to present a procedural hurdle which plaintiffs must overcome (and may significantly impact a number of cases already underway in respect of which such authorisation was not sought). Of course, not all non-material damage claims brought pursuant to Article 82 GDPR and/or section 117 of the Data Protection Act 2018 are pleaded in this particular way, so the impact of any such decision more broadly in the context of such non-material damage claims remains to be seen.
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