Pursuer who took holidays after alleging data breach made him afraid of crowds ordered to pay expenses in abandoned claim

About this case:

• Citation:
  [2026] SC EDIN 22
• Judgment:
  External link
• Court:
  Sheriff Court
• Judge:
  Sheriff K J Campbell

Gordon Dunn had raised a claim against Menzies Distribution Ltd alleging a breach of the General Data Protection Regulation after he was informed that his file could not be located. The defender sought to disapply Qualified One-Way Costs Shifting on the basis of abandonment as well as the pursuer’s fraudulent conduct, which was discovered after investigators found he had taken foreign holidays to popular tourist spots after the alleged breach.

The case was heard by Sheriff Kenneth Campbell KC in the All-Scotland Sheriff Personal Injury Court in Edinburgh. Representation at the expenses hearing was provided by Mr Gillies of Clyde & Co LLP Solicitors for the defender, with the pursuer not personally present nor represented.

Visited Disneyland

In the initial writ the pursuer, a former employee of the defender, alleged that a beach of Article 5(1)(F) of the GDPR had occurred after he submitted a subject access request for his personal data as contained within the file and received written confirmation, dated 12 August 2024, that his file could not be located. He averred that this file contained details of his medical history and of a past abusive relationship, which the defender disputed, and that as a result of the alleged breach he suffered reoccurrence of a pre-existing depressive disorder having experienced stress at the possibility of his colleagues becoming aware of his mental health issues.

The pursuer went on to aver that as a consequence of the breach he had been deemed unfit for work, required his parents to administer his anti-depressant medication, and suffered cognitive decline including forgetfulness. He left the defender’s employ in March 2025 after lodging the initial writ the previous month. While his claim was initially anonymised, the anonymisation order was lifted following the defender’s motion to dismiss.

In the course of May and June 2025, the defender’s solicitors instructed agents to carry out surveillance on the pursuer, who was also examined by two consultant psychiatrists, Dr Qureshi and Dr Agnihotri. Surveillance footage presented to the court showed the pursuer had been living with a partner in Glasgow and had visited Disneyland Paris in October 2024, as well as other busy tourist destinations, despite telling the psychiatrists he struggled with crowds. On 2 October 2025, the pursuer emailed the sheriff clerk to give notice that he was abandoning his action “due to health and personal reasons”.

In submissions on expenses, the defender argued that the pursuer had brought his action based on fraudulent representations. He had concealed facts and lied to his own agents and to expert witnesses for financial gain. They also noted that the defender had continued to work after the alleged breach at an NHS procurement centre in Glasgow and that the pursuer’s ex-partner had been found not guilty of assaulting him while he was convicted of acting in a threatening and abusive manner towards her. The central components of his claim were manifestly false.

Heart of the process

In his decision, Sheriff Campbell noted the pursuer’s clear wish to abandon the action, saying: “I consider that the defender is correct in submitting that for that reason by itself, the court would be entitled to entertain and grant the application to disapply QOCS. However, having regard to the serious matters raised in submissions, which inform the application to recall the anonymity order, and the part of the motion seeking expenses on an agent-client basis, it is necessary to consider the further points raised.”

He added: “I am satisfied on the material before me that the pursuer has made a series of false representations without belief in their truth to medical practitioners, to his agents and thereby to the court about the effect of the alleged data breach on his mental health, and on his capacity for work and social activities. I have to be satisfied on the balance of probabilities and I am so satisfied. The accounts recorded as being given by the pursuer to Drs Qureshi and Agnihotri are impossible to reconcile with the surveillance evidence.”

Considering whether the pursuer seeking anonymity amounted to an abuse of process, Sheriff Campbell said: “The falsehood in this case goes to the heart of the court process. I consider that making an application for anonymity which is founded on a fraudulent representation, and persisting in that, is an abuse of process. I am therefore satisfied that it is appropriate not only to find that the court ought to disapply QOCS on the basis of abuse of process, but to recall the anonymity orders made on 13 and 21 February 2025. That is an exceptional step, but it is now clear that the basis on which it was represented to the court that the orders should be made was false. There is no basis for the order to continue.”

He concluded: “Given the conclusions I have reached about the conduct of the pursuer in connection with this litigation, I am satisfied that, the third and fourth points mentioned by Lord Hodge [in McKie v Scottish Ministers (2006)] are very much in issue in this case. I have held that the pursuer has made fraudulent representations and that his conduct has amounted to an abuse of process. In those circumstances, I am satisfied that it is appropriate to award expenses on the solicitor-client, client-paying basis.”

Sheriff Campbell therefore disapplied QOCS, certified the cause as suitable for the employ of junior counsel, awarded expenses to the defender, and assoilzied them from the craves of the action.