The Practical Lawyer

These days, subject access requests (SARs) are becoming increasingly common as a civil litigation ploy to obtain information that might not otherwise be disclosable (or to get it disclosed at an earlier stage). In short, SARs have become a tactical tool in litigation. 

Making a valid SAR is straightforward and inexpensive. There is no prescribed format provided it is in writing – indeed the code of practice specifies that data controllers may not insist on the use of a particular form. A written SAR can be made by post, e-mail, fax or even social media. It does not have to be labelled as an SAR, nor make any reference to DPA 1998. Generally, the maximum fee that can be charged by data controllers for dealing with an SRA is £10; a response must be provided promptly (and in any event within 40 days).

To what extent can a judgment debtor dissipate (or strip) assets to avoid them being available to meet the judgment debt?

To what extent can a non-party appeal a court decision because it affects their reputation?

It is worth remembering that costs attract a very healthy 8% rate of interest.

Charging orders are a powerful tool for enforcing judgment debts. Imposing a charging order on land owned by a debtor is equivalent to getting a mortgage over the property. The procedure for applying for a charging order is set out in Part 73:

Clients should always be given clear advice about the risk factors on costs recovery. In particular, they will not normally recover all their costs and, in any event, the court has a very wide discretion:

Since 25 April 2017 the use of the court’s electronic filing system has been mandatory in the Rolls Building. But, it seems that ministerial approval of the necessary PD is required, and that has been delayed by the election. Accordingly, the transitional period remains unclear, but it seems that PD 510 (which governed the previous pilot scheme) is the one to follow (although it does not apply to unrepresented litigants).

Arbitration allows parties to resolve their disputes in private. There is far less potential for exposure of trade secrets, proprietary information or business practices, and adverse publicity when disputes are kept out of the public courts. Thus, a key element of London’s status as an arbitration centre is the assumption that arbitration proceedings will be private and confidential.

Generally, documents used in mediation are covered by without prejudice privilege, and thus cannot be used as evidence outside the mediation process. Moreover, the mediation agreement will typically contain confidentiality provisions (ie the parties agree not to disclose or use documents or material produced for the purposes of the mediation for any other purpose).

A new pre-action protocol, specifically for debt claims, will come into force on 1 October 2017. At the moment, there is no specific protocol for debt claims, although parties are expected to comply with the existing PD for pre-action conduct.

Note that the protocol applies to ‘any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader)’. Thus it does not apply to business-to-business debts (although it will apply when suing for debt due on a guarantee).