Data Protection Compliance Order Claims in Simple Procedure in Sheriff Courts in Scotland.
Getting acquainted with court procedure for Article 79 GDPR claims
Is Simple Procedure appropriate for s.167 compliance orders under the Data Protection Act 2018?
In a word, yes.
Article 79 GDPR and the LED entitles data subjects to an “effective judicial remedy”. This means that enforcement of your rights needs to be accessible. Simple Procedure is specifically designed to be accessible for self-represented persons (party litigants).
Quite frankly, the average individual likely could not afford a solicitor to undertake a claim of this nature and if the remedy is not accessible because of cost or procedural barriers, your data rights are virtually meaningless.
Data rights such as access via SAR, rectification, restriction, erasure or the right to object are directly actionable by the data subject. If those rights are ignored or not complied with adequately, the data subject has a further right to effective judicial remedy under Article 79, to enforce those rights via the court.
If an individual is seeking a s.167 compliance order only, the value of the case is naturally low & Simple Procedure is for claims valued £5000 or less.
Given all of that, Simple Procedure is the ideal forum & the more that claims of this nature are advanced by party litigants in that forum, the easier it will become for everyone else which has already been proven to be the case in England & Wales.
England & Wales are miles ahead of Scotland in data rights enforcement.
I only know of 4 other compliance order claims in Scotland besides my own. There undoubtedly have likely been more attempted but, had they been successful, we would likely know about them by now. Have a look on the Scottish Court & Tribunal Service website and search “data protection act” in the judgments section. There is nothing.
Of the 4 that I know of, 3 of them were unsuccessful, including that of Bartosik in the Court of Session and 1 of them is still ongoing in Lanark Sheriff Court in ordinary procedure, the case of Kenneth Prentice v. Chief Constable of Police Scotland. See Scottish Advocate, Alistair Sloan's article about it here. Notice that Alistair Sloan, who is a data protection specialist, opens that article with a comment on how rare these sorts of claims are Scotland compared to elsewhere in the UK.
In one of the unsuccessful claims I read raised in Simple Procedure in Edinburgh Sheriff Court, the individual's data he was seeking access to was treated as a “moveable” rather than approaching the claim as rights enforcement which demonstrates that these claims are unusual enough that even the courts have been grappling with how to approach them.
The issue of forum came up in my own case as well halfway through my case and that only tells you that the courts were still unsure as of 2024 which forum these claims belong. My claim proceeded and succeeded under Simple Procedure.
In England & Wales these claims are far more common and most often now dealt with in the small claims track in County Court which is the closest equivalent to Simple Procedure in Scotland.
We saw in Buzzard-Quashie that she, as a party litigant, managed to obtain her court order in an English County Court against Northamptonshire Police in just 9 months.
Overview
One of the bigger challenges a party litigant will face is understanding court procedure, even in simple procedure.
Simple Procedure replaced the Small Claims and much of the Summary Cause procedures in 2016 for claims of a value of £5000 or less. It is stated to be speedy, inexpensive & informal procedure and therefore more suited and accessible to party litigants.
Further, for claims valued under £3000, expenses are capped meaning that smaller value claims can be pursued without much fear of being found liable for signifcant expenses of the opposing party in the event you do not succeed. The exception to that is unreasonable behaviour by either party or for any other reasons in s.81 of the Courts Reform (Scotland) Act 2014.