This post was written by Cynthia O’Donoghue.

The UK Civil Division of the Court of Appeal ruled in favour of an individual data subject on the point of damages under the Data Protection Act 1998 (DPA), but limited the award to £751 GBP. The judgment in Halliday v. Creation Consumer Finance Limited, [2013] EWCA Civ 333, clarifies how compensation under the DPA should be assessed, and sets a high threshold for obtaining a substantial award for damages.

Mr. Halliday had been awarded nominal damages by a district judge absent evidence demonstrating any financial loss, which was affirmed on a prior appeal. In the present appeal, the court looked at the question of whether Mr. Halliday was entitled to an award for distress, and whether his claim for damages should have been rejected on the ground that he had to show that he was entitled to substantial damages before he could obtain damages for distress.

The appellant, Mr. Halliday, had entered into a credit agreement with Creation Consumer Finance (CCF). After a series of complex developments, CCF wrongly recorded Mr. Halliday as owing funds, and the information was then shared with a credit reference agency. Mr. Halliday sought to rely on the DPA to claim damages for the harm to his reputation and credit rating, and the distress he suffered.

The Court of Appeal affirmed that a nominal damage award of £1 GBP was appropriate where a claimant could not prove loss, and that such an award was an effective remedy for the purposes of European Union law. The court reviewed whether damages for distress are available where the complainant failed to receive substantial damages for the breach itself.

The court considered how the damages for distress damages should be assessed, finding that the remedy is only available where the distress results from contravention of the data processing requirements and is suffered by the complainant himself. The court concluded by recognising a general principle that non-compliance with important European instruments will cause frustration to complainants, and that compensation for such frustration may sufficiently amount to as little as £750.

While some of the points in the case were fact specific, the final decision appears to create two general rules. First, in absence of direct evidence of specific financial loss, nominal damages may be awarded for breaches of the DPA. Second, an additional remedy for frustration or distress may be awarded.