The High Court has ordered the Data Protection Commission (DPC) to pay 80% of Maximilian Schrems’ costs after he obtained a substantial part of the relief he sought in proceedings that were settled before trial. The costs are to be adjudicated upon if the parties cannot agree them.
Mr Justice David Barniville, President of the High Court, delivered the judgment electronically on 29 September 2022. The substantive issues had been resolved by agreement in January 2021, with costs left for the court to decide.
Mr Schrems had challenged the DPC’s decision to open an own-volition inquiry into Facebook Ireland Limited’s transfers of personal data to Facebook Inc. He also challenged the DPC’s handling of his earlier complaint about data transfers and sought, among other things, to be heard in the inquiry and to receive documents exchanged with Facebook Ireland.
The DPC initially proposed to complete the inquiry before turning to Mr Schrems’ complaint and said it did not intend to hear submissions from him in the inquiry at that stage. Its position changed during the proceedings. Under the settlement, the DPC agreed to handle the inquiry and complaint concurrently and as expeditiously as possible, hear from Mr Schrems in the inquiry, and provide relevant documents subject to confidentiality. It also agreed to consider his complaint about transfers after 25 May 2018 under the GDPR and the Data Protection Act 2018, after he agreed to limit the complaint to those transfers.
The agreement did not give Mr Schrems everything he had sought. He did not obtain an order quashing the inquiry or the related reliefs. The court therefore considered the case under the approach set out by the Court of Appeal in Hughes v Revenue Commissioners, which addresses costs where parties settle some, but not all, of the claimed relief.
The judge found that Mr Schrems had obtained a substantial part of the relief sought and that the proceedings could likely have been avoided, or brought to an end earlier, if the terms ultimately agreed had been offered sooner. He also found it highly unlikely that Mr Schrems would have obtained those terms without bringing proceedings.
The court ordered the DPC to pay 80% of Mr Schrems’ costs in the proceedings, with the amount to be adjudicated upon in default of agreement. The judge also expressed a provisional view that Mr Schrems should receive 80% of the costs of the costs application. Either party could contest that provisional view in writing within seven days; the other would then have seven days to respond. The judgment does not state the outcome of any such further submissions.