(Re)insurance Weekly Update 24- 2018

A summary of recent developments in insurance, reinsurance and litigation law

Dr B v The General Medical Council: Court of Appeal allows data access request where there are competing privacy interests

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1497.html

The first instance decision in this case was reported in Weekly Update 34/16. A patient alleged that the claimant GP had misdiagnosed him. He submitted a subject access request under section 7 of the Data Protection Act 1998 to the General Medical Council ("CMC"). The claimant argued that an expert report obtained by the GMC for the purpose of investigating the patient's complaint should not be disclosed to the patient (even though it contained personal data relating to the patient) as this would breach his right of privacy as a data subject. Accordingly, the case involved the competing privacy rights of the patient and the GP in the personal data contained in the report ("mixed personal data"). The GMC held that the report should be disclosed but the judge at first instance in this case held that the patient was not entitled to disclosure.

By a majority of 3:2 the Court of Appeal has now allowed the appeal from that decision and ordered disclosure of the report. It held as follows:

(1) The judge had erred in proceeding on the basis that there is a rebuttable presumption against disclosure in a "mixed personal data" case.

(2) By a majority, it was also held that the judge had erred in holding that, where the sole or dominant purpose of the request is to obtain information for the purpose of litigation, that is a weighty factor in favour of refusal. As Sales LJ put it: "In my view, there is no general principle that the interests of the requester, when balanced against the interests of the objector, should be treated as devalued by reason of such motivation. The general position is that the rights of subject access to personal data under Article 12 of the Directive and section 7 of the DPA are not dependent on appropriate motivation on the part of the requester". The patient was not required to obtain access to the information via CPR r31 instead. Arden LJ agreed that, in the usual case, the fact that the person requesting data in a mixed data case might bring litigation should only be one factor to be weighed in the balance by the data controller. Thus, for example, where the person requesting data is a vexatious litigant, disclosure might be refused.

Network Rail v Williams & Anor: Court of Appeal rules on a private nuisance claim arising from encroachment of Japanese knotweed - of possible interest to liability insurers

http://www.bailii.org/ew/cases/EWCA/Civ/2018/1514.html

The claimants brought claims in private nuisance after Japanese knotweed spread from their neighbour's land onto their land. The Japanese knotweed had not caused any physical damage to the claimants' properties, or any change in the soil structure on their land. However, the value of properties affected by Japanese knotweed can be reduced.

The claimants presented their private nuisance claims in two ways: 1) an "encroachment claim" (ie the neighbour was liable because the Japanese knotweed had spread to their land (even though there was no damage); and 2) a "quiet enjoyment/loss of amenity claim". The recorder at first instance held that the encroachment claim failed, because of the lack of physical damage to the claimant's property, but the quiet enjoyment claim succeeded. On appeal, the Court of Appeal has now held as follows:

(1) Although actions for nuisance are sometimes broken down into different categories, these are only examples of a violation of property rights: "The difficulty with any rigid categorisation is that it may...