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Durant takes data protection battle to Strasbourg

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Michael Durant is taking on the UK Government in the next instalment of his ground-breaking data protection battle. His next venue is the European Court of Human Rights, following defeats in a County Court, the Court of Appeals and the House of Lords.

According to his lawyer, Tamsin Allen of Bindmans Solicitors, an application will submitted in April for his case to be heard in Strasbourg.

The argument will be made that Mr Durant has suffered a breach of Article Eight of the European Convention on Human Rights, which provides that "everyone has the right to respect for his private and family life, his home and his correspondence".

Mr Durant has been seeking access to certain information for many years. His dispute began when Barclays Bank claimed the repayment of a loan that Mr Durant maintains he never received. He believes he was the victim of a fraud but Barclays successfully sued him for the missing £120,000 in 1993.

Mr Durant has been seeking access to documents that would prove his claim ever since. However, the Financial Services Authority backed Barclays' refusal to give him access to an internal case file: it was confidential, they argued. And they maintain that Mr Durant has been given access to everything to which he is entitled within the limits of the Data Protection Act.

That Act provides a right of subject access. But its limits were tested by Mr Durant's case. In December 2003, the Court of Appeals issued a landmark ruling that narrowed the scope of personal data and when structured manual files were caught by the Act. The result of this interpretation was a narrowing of the right of subject access under the Act.

The House of Lords did not change that ruling; it simply refused Mr Durant's request for leave to appeal.

Ms Allen believes that Mr Durant's decision to continue his battle is partly a matter of principle. But she added that he's still seeking the information that will clear his name. "He doesn't accept what the FSA and Barclays have told him," she said. "Nobody has adequately analysed the documents in question; the Court of Appeal took a very broad-brush approach."

The case in Strasbourg is not against the FSA. It is against the UK Government. "If a national court doesn't fulfil its obligations under the Convention when it applies national law, the government is responsible," said Ms Allen.

The Strasbourg Court has the power to order an award of compensation if it finds that Mr Durant's human rights were breached. It could decide that 'just satisfaction' is simply a change in the law; or it might decide that compensation is also appropriate if, for example, the relevant documents have since disappeared.

Mr Durant hopes for an order that will support his claim for access to the personal data contained in the documents. If the order is in his favour, he can revert to Barclays and the FSA and argue for access under a wider definition of personal data.

The grounds for Mr Durant's Strasbourg application have not yet been finalised, according to Ms Allen. After the application is submitted, an admissibility hearing will be scheduled. If the Court accepts the case, a full hearing will follow. A decision could take several years.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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