Readers will be familiar with the case of Durant v Financial Services Authority ( EWCA Civ 1746, Court of Appeal, 8 December 2003) in which the Court of Appeal restricted the scope of data protection law in the UK by:
Mr Durant had petitioned the House of Lords for leave to appeal this decision. Oral hearing of his petition was due to be heard on 12 October. However, at the last minute, Mr Durant withdrew his petition. This leaves the Court of Appeal decision as the final word in data protection in the UK – at least at the moment.
The European Commission is currently at an early stage of infraction proceedings against the UK government for possible failure to implement the Data Protection Directive correctly. We understand that one of the areas where the Commissioner has concerns is the effect of the Durant ruling. The Department for Constitutional Affairs and the Information Commissioner’s Office may well be disappointed at Mr Durant’s decision to withdraw his petition. Had it gone ahead, his petition may have allowed the UK government to sidestep this issue entirely, as the House of Lords may have decided to refer the matter to the ECJ for a ruling.