PLEADING A DEFENCE PROPERLY: THE DIFFERENCE BETWEEN A DENIAL AND A NON-ADMISSION: HIGH COURT GOES BACK TO BASIC PRINCIPLES

There are some interesting observations about statements of case in the judgment of Mr Justice Warby in  Aven & Ors v Orbis Business Intelligence Ltd [2020] EWHC 523 (QB).  This case emphasises the difference between a non-admission and a denial in a defence.  A non-admission puts the claimant to proof whereas a “denial” gives rise to an obligation to plead an alternative case.  In this case the defendant had attempted to do both.  This led to problems shortly before the trial date, when the defendant attempted to amend its defence.

“The general principles are clear: it is open to a defendant to require a claimant to prove their pleaded case by means of a non-admission, or alternatively to deny the pleaded case. The problem, or part of the problem, in the present case stems from the fact that this defendant has done both. A denial by its nature goes beyond a non-admission.”

THE CASE

The claimants brought an action claiming damages for breach of the Data Protection Act.  A Defence had been filed stating that the personal data complained of was not inaccurate.   The Claimant served a reply which stated

“The contention that ‘the personal data complained of is not and was not inaccurate’ is in substance a bare denial of the falsity unsupported by any positive case as to accuracy”

THE DEFENDANT’S APPLICATION TO AMEND THE DEFENCE

The matter was listed for trial starting on the 16th March 2020.  On the 27th February 2020 the court heard an application by the defendant for permission to amend its defence.  The claimants also made an application to strike out parts of the witness evidence served by the defendant.

THE DEFENDANT’S PLEADED CASE ON ACCURACY

The claimant argued that the defendant’s case on accuracy was not properly pleaded.

1. 1. So far as accuracy is concerned, his submission has been that the onus has always been on Orbis to assert, in detail, a positive case of accuracy, if that is the case that it wanted to advance at trial evidentially. No positive case has ever been pleaded, or adequately pleaded. The claimants, Mr Tomlinson submits, have made their stance crystal-clear in correspondence. He took me to correspondence, including letters of 20 and 31 May 2019 in which the claimants’ solicitors asserted that no positive case had been advanced, and no response was made from the defendant.

   2. Mr Tomlinson further argues that the case has not been sufficiently pleaded even now that these belated draft amendments have been produced. The claimants’ evidence on this topic comes from Louise Boswell of the claimants’ solicitors who says in her paragraph 11 that the Steele witness statement deals for the first time with a variety of matters that are said to establish the accuracy of the personal data in question. She continues:

“The claimants are seriously prejudiced by this approach as they have not prepared evidence to respond to the matters which are now raised by Mr Steele for the first time.”

1. Ms Boswell goes on to the make the point that if this material were included it would substantially increase the length of the trial and lead to the need to consider whether further disclosure was required.

THE JUDGE’S VIEW: GOING BACK TO BASIC PRINCIPLES

The judge found that the original defence was defective.

1. 1. If and insofar as the defendant wishes to contend that any of the data complained of are not in contravention of the duty of accuracy because they are not statements of fact but matters of opinion, then the underlying material cited in Mr Steele’s witness statement is irrelevant, as is anything Mr Steele thought or believed about it. I am concerned on this application only with the question of whether the defence sufficiently sets out all the draft amendments, sufficiently set out a case that the data, insofar as they are factual, are accurate. By the end of the argument, I had reached a firm conclusion that the Defence, as it stands, is not a sufficient statement of any positive case that the data were factually accurate.

   2. The primary burden of proof in relation to inaccuracy lies on the claimant in such a case. The claimant must assert inaccuracy, and give sufficient particulars. The way in which that needs to be done must depend on the nature of the information that is alleged to be inaccurate. The broader the statement that is impugned as inaccurate, the less detailed the contention that it is false needs to be. I am not persuaded by Mr Hopkins’ submission that Particulars of Claim are deficient in this respect

   3. In any event, I am not concerned with the Particulars of Claim but with the Defence. The general principles are clear: it is open to a defendant to require a claimant to prove their pleaded case by means of a non-admission, or alternatively to deny the pleaded case. The problem, or part of the problem, in the present case stems from the fact that this defendant has done both. A denial by its nature goes beyond a non-admission.

   4. True it is that a bare denial of an allegation of inaccuracy is, in the old language, “pregnant with” an affirmative case that the matter is in fact accurate; but such a denial will often be insufficient to provide the notice to which a claimant is entitled, and indeed requires in order to understand and prepare to meet the defendant’s case. That is the position here. Taking by way of example, the first of the alleged inaccuracies (the allegation of mutual favours), proof that the proposition was accurate would necessarily involve evidence of particular incidents or instances of conduct that serve to show the truth of the proposition. Details of the facts to be proved in support of such a positive case would necessarily be required by a claimant in order to prepare for trial. A bare denial, as pleaded here, could not provide the claimants with any notion of what factual case might be advanced to support the assertion of accuracy.

   5. It is helpful to go back to some basic principles. The defence have overlooked the provisions of CPR 16.5, which reads as follows:

“(1) In his defence the defendant must state

(a) which of the allegations in the particulars of claim he denies,

(b) which allegations he is unable to admit or deny but which he requires the claimant to prove, and

(c) which allegations he admits.

(2) Where the defendant denies an allegation

(a) he must state his reasons for doing so and

(b) if he intends to put forward a different version of events than that given by the claimant, he must state his own version.”

1. 1. Paragraph 6(h) of the defence does not comply with that rule. It may be right to say that a pleading that none of the five sentences complained of contain incorrect of misleading facts is the same as pleading that those sentences are accurate, but that does not provide the “reasons” for the denial. Nor does it supply the “different version of events” on which the defendant intends to rely. The first time that any such version was provided to these claimants was in the witness statement of Mr Steele.

   2. I am not persuaded that Orbis required any further information about the claimants’ case to enable it to set out its own case on inaccuracy or accuracy with sufficient detail. No formal request for further information was ever made, and no such detail has ever been provided. But Orbis has been able to set out some sort of case in Mr Steele’s witness statement.

   3. It cannot avail the defendant that the claimants asked for further information but did not seek details of the defendant’s case on inaccuracy, particularly in view of the correspondence to which I have referred. Nor do I accept Mr Hopkins’ submission, in his skeleton argument, that paragraph 6(c) of the Defence affords the claimants the necessary notice. As Mr Tomlinson submitted, that paragraph deals with an entirely separate and distinct issue, namely whether material in the public domain goes to show that the defendant’s processing of the data caused no unwarranted prejudice or damage to the claimants. That is quite different from relying on press cuttings, or other material of that nature, as evidence of the truth of what is asserted within them.

   4. Further, it is not the case that the Defence as it stands indicates sufficiently or at all an intention to rely on the provisions of Schedule 1, Part 2, paragraph 7. Reliance on paragraph 10 of the defence as a sufficient assertion of that case is misplaced. Plainly, on the face of it, that paragraph relies on section 13(3) of the DPA. Further, as Mr Tomlinson has pointed out, there is an omission from the pleading for the purposes of paragraph 7 which requires pleading and proof of the proposition that the data accurately record data obtained by the data controller.

   5. For all those reasons I had, as I say, reached the fairly firm conclusion that the defendant’s pleaded case as it stands was not a sufficient statement of case as to accuracy, and that the defendants were right in principle to apply to amend. I had also reached provisional conclusions on four issues relevant to the application to amend. They were these.

(1) First, the draft amendments did not make good the deficiencies I have identified either in isolation from or in combination with the witness statement. The pleading was, to adopt the words of Lord Denning in Associated Leisure v Associated Newspapers Limited [1972] QB 450 a “loose, ineffective pleading”.

(2) Secondly, that if any amendment was to be made to assert factual accuracy, it would require an adjournment of the trial.

(3) Thirdly, not only was there no evidential explanation or excuse put forward for the lateness of the application it was, on all the evidence, inexcusable.

(4) Fourthly, that the prejudice that would be caused to the claimants, the public and the administration of justice by granting an adjournment would outweigh any prejudice to the defendant were I to refuse permission to amend.