Lawyers at Matheson believe an upcoming Supreme Court case will have a significant impact on how non-material damage claims are pleaded and advanced in future.

The court recently granted the plaintiff leave to appeal against a High Court decision in Dillon v Irish Life Assurance.

In a note on the firm’s website, the Matheson lawyers explain that the plaintiff had sought compensation for non-material damage suffered following an alleged infringement of the GDPR.

He alleged that Irish Life had wrongfully disclosed his personal data to an unauthorised third party, resulting in “distress, upset, anxiety, inconvenience, loss and damage”.

PIAB authorisation

The Circuit Court had dismissed the proceedings on the basis that prior authorisation had not been obtained from the PIAB (now known as the Injuries Resolution Board).

On appeal, the High Court upheld the lower court’s ruling, finding that damages sought in respect of, inter alia, ‘distress, upset and anxiety’ arising from an alleged GDPR infringement were in the nature of personal injuries, requiring prior authorisation from PIAB.

The High Court found that, notwithstanding the fact that damages might not be recoverable in respect of such impairments, they nevertheless fell within the definition of ‘personal injury’ as defined in the Civil Liability Act 1961 and the Personal Injuries Assessment Board Act 2003.

The Matheson lawyers note that the Supreme Court has acknowledged that whether a claim for non-material damages for ‘distress, upset and anxiety’ under the GDPR is to be regarded as a claim for damages for ‘personal injury’, requiring PIAB authorisation, was an issue of general public importance.

The Supreme Court added that these issues were of “significant practical importance for litigants and for the courts dealing with data-protection claims”.

‘Procedural hurdle’

The Matheson note says that recent decisions by the Court of Justice of the European Union have provided “a welcome degree of clarity” on the right to compensation for non-material damage under the GDPR.

“The outlook is, however, less clear in the domestic Irish context with regard to the procedural requirements applicable to certain claims for non-material damage, at least for now,” they add, pointing to a “distinct and observable trend” in plaintiffs pleading distress, upset, and anxiety in cases where non-material damages are sought for infringement of data-protection rights.

“If the Supreme Court upholds the decision of the High Court, the requirement to seek PIAB authorisation before commencing such claims will continue to present a procedural hurdle that plaintiffs must overcome (and may significantly impact a number of cases already underway in respect of which such authorisation was not sought),” the lawyers conclude.