Judgment: 2022-11-17 · Court archive

Circuit Court dismisses appeal over barrister’s verbal conflict check disclosure

The court affirmed the Data Protection Commission’s decision that the disclosure fell outside the GDPR’s material scope and that the barrister had a legitimate interest in making it.

Circuit Court, Dublin Circuit County of City of Dublin ·

Who, what, where, when and why

Who
  • Aimee Scott (Appellant)
  • John O’Connor
  • the barrister
What

The court affirmed the Data Protection Commission’s decision that the disclosure fell outside the GDPR’s material scope and that the barrister had a legitimate interest in making it.

Where

No place detail is included in this summary.

When

Judgment:

Why

Reasons reported in the judgment

In a judgment delivered on 17 November 2022, Judge John O’Connor affirmed the Commission’s decision. The court held that the disclosure was purely verbal and, in the circumstances, did not fall within the GDPR’s material scope. It also upheld the Commission’s view that the barrister had a legitimate interest in making the disclosure as part of a conflict check.

The Circuit Court has dismissed Aimee Scott’s appeal against a Data Protection Commission decision concerning a barrister’s disclosure to a solicitor firm that she had previously acted for Scott in an unrelated employment matter.

In a judgment delivered on 17 November 2022, Judge John O’Connor affirmed the Commission’s decision. The court held that the disclosure was purely verbal and, in the circumstances, did not fall within the GDPR’s material scope. It also upheld the Commission’s view that the barrister had a legitimate interest in making the disclosure as part of a conflict check.

Scott had complained to the Commission that the barrister disclosed personal information, including that she had represented Scott in an earlier employment dispute and when it had taken place. The barrister had been approached to act for a client of a solicitor firm in a later, unrelated employment dispute involving Scott. The firm told Scott that the barrister had said she no longer held papers from the earlier matter and had returned them to her instructing solicitor.

The Commission decided that the information was personal data but found that the verbal disclosure was outside the GDPR’s scope because the evidence did not show that documents or written records were shared. It also considered the barrister’s reliance on the GDPR’s legitimate interests basis and found it lawful. The appeal was under section 150(5) of the Data Protection Act 2018, which allows the court to annul a Commission decision, substitute its own determination or dismiss the appeal.

Scott argued that the verbal communication transmitted information contained in records previously held in a filing system. She also challenged the Commission’s consideration of a lawful basis after finding the disclosure outside the GDPR’s scope, and disputed that the disclosure was necessary or limited to the minimum information required.

The Commission argued that the appeal should be assessed on the evidence before it when it made its decision. It said there was no evidence that the barrister had consulted the earlier papers during the conflict check, and that the disclosure could have been recalled from memory.

The court applied the limited appeal standard set out in earlier case law: Scott had to show, on the balance of probabilities, a serious and significant error in the Commission’s decision-making process as a whole. The judge said a barrister’s notes could constitute a filing system even if later disposed of, but concluded that the purely verbal communication in this case did not come within the GDPR’s material scope.

The judge also found that the disclosure satisfied the legitimate interest test. The judgment said a later finding by another tribunal that the barrister had a conflict would not retrospectively invalidate the original disclosure. Any regulatory or legal concern about the barrister’s conduct in the later case was for a different forum. The appeal was dismissed.

Read the original court judgment

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