Circuit Court stays proceedings pending CJEU preliminary rulings on cross-border courier liability under EU law.

AN CHÚIRT CHUARDA

THE CIRCUIT COURT

Dublin Circuit County of the City of Dublin

Record No. 2021/03424

Between:

GARY CUNNIAM

PLAINTIFF/RESPONDENT

AND

PARCEL CONNECT LIMITED trading as FASTWAY COURIERS

IRELAND

and

A&G COURIERS LIMITED trading as FASTWAY COURIERS IRELAND

and

NAPIER COURIERS LIMITED trading as FASTWAY COURIERS

DEFENDANTS/APPLICANTS

Judgment of His Honour Judge John O’Connor delivered on the 23rd day of January, 2023

1. Introduction

1.1 In this case the defendants seek an order pursuant to the inherent jurisdiction of this Court staying the existing proceedings pending a determination by the Court of Justice of the European Union (“CJEU”) of the preliminary references referred to it by various member states in accordance with Article 267 of the Treaty on the Functioning of the European Union (“TFEU”), namely:

a. Case C-300/21 – UI v Österreichische Post AG

b. Case C-340/21 – VB v Natsionalna agentsia za prihodite

c. Case C-667/21 – ZQ v Medizinischer Dienst der Krankenversicherung Nordrhein d. Case C-687/21 – BL v Saturn Electro-Handelsgesellschaft mbH Hagen e. Case C-741/21 – GP v Juris GmbH f. Case C-182/22 – JU v Scalable Capital GmbH

1.2 The defendants submit that this Court is required, in accordance with the duty of sincere cooperation provided for in Article 4(3) of the Treaty of the European Union (“TEU”), to stay these proceedings pending the determination of these preliminary references. The defendants submit that the Circuit Court is a national court of a member state and, as such, is subject to the obligations imposed on the courts of member states by the Treaties.

1.3 The defendants submit that it will suffer prejudice in the event that a stay is not granted at this point in the proceedings. Among the points raised by the defendants were the following:

(a) The value of the plaintiff’s claim. Even if the plaintiff succeeds in establishing liability, the claim is very small relative to the jurisdiction of the Circuit Court. Should the CJEU decide to accept the recommendation of the Advocate General in Case C-300/21, discussed below, they submit that it is possible that the plaintiff will not be entitled to any damages.

(b) If the proceedings are simply allowed to proceed until such time as they are ready for hearing, the costs that will have been incurred by then will by far be in excess of any award of damages the plaintiff may recover.

(c) Pending receipt of clarification in respect of the correct interpretation of Article

82 of the General Data Protection Regulation (“GDPR”) from the CJEU, it is not possible for the defendants to make a lodgement, as it is impossible to sensibly seek to quantify the sum which ought to be lodged. This, the defendants contend, deprives them of their ability to provide themselves with any meaningful costs’ protection.

2. Background to the Substantive Proceedings

2.1 In or about February 2021, the plaintiff contends that the defendants, or at least one of them, had a data breach incident in which it appears the personal data of over 450,000 people was compromised. Consequent to the data breach incident, it appears that one of the defendants began to contact the persons whose personal data had been compromised in the incident.

2.2 The plaintiff’s solicitor acts for 22 clients, including the plaintiff in proceedings against Fastway, one of the Defendants, arising out of the data breach incident. The proceedings are all brought pursuant to Articles 79 and 82 of the GDPR and section 117 of the Data Protection Act 2018. It was submitted that there are other solicitors that may also have multiple clients who have issued similar proceedings.

2.3 If a stay were to be granted in this case, it was submitted by the plaintiff that this would potentially have wider ramifications for all cases arising under Articles 79 and 82 of the GDPR in the courts in this jurisdiction as it could conceivably lead to a stay being sought in every such case on similar grounds. This, the plaintiff further contends, would have serious consequences for the right of data subjects to litigate their cases, bearing in mind that Article 79 of the GDPR provides that a data subject has the right to an effective judicial remedy where he or she considers that his or her rights under the GDPR have been infringed.

2.4 For this reason it was submitted by the plaintiff that the Court should examine the defendants’ application with a high degree of scrutiny because of the wider effect of the Court’s decision.

3. Procedural Background

3.1 These proceedings were commenced by Equity Civil Bill on 2nd July 2021. The plaintiff pleaded that he purchased goods from online sellers and the defendants were engaged by those sellers to deliver the goods. The plaintiff contends that he was informed by email that his personal data was accessed by a third-party hacker in a security incident which occurred between the 24th and 26th of February 2021.

3.2 The plaintiff claims that his rights pursuant to the GDPR have been infringed and claims a right to compensation for that damage in accordance with Article 82 of the GDPR and/or section 117 of the Data Protection Act 2018.

3.3 The plaintiff further pleads that the defendants were negligent and in breach of duty in allowing the plaintiff’s data to be unlawfully accessed, retained and being capable of being utilised by an unauthorised criminal or third party as a result of the hacking of the defendants’ information systems.

3.4 The plaintiff contends that, inter alia, the defendants failed to maintain adequate security measures to prevent the plaintiff’s personal data from being accessed by unauthorised third parties and failed to process the plaintiff’s personal data in a manner which ensured appropriate security of the personal data.

3.5 The damage alleged to have been suffered by the plaintiff is particularised but includes interference with his peace and privacy and apprehension about the use to which his data has been put. It is further alleged that the plaintiff has been contacted by unknown third parties and that he has lost control over his personal data, with the result that he is unable to exercise any rights of erasure, rectification or restriction of processing against the unknown third parties in possession of his personal data. The plaintiff claims damages pursuant to Articles 79 and 82 of the GDPR and/or section 117(4) of the Data Protection Act 2018.

3.6 An Appearance was entered on behalf of the defendants on 15th of September 2021. On 3rd of November 2021, a Notice for Particulars arising out of the Equity Civil Bill was delivered by the defendants. Replies to Particulars were received on 22nd of February 2022. In the Replies to Particulars, the plaintiff confirmed that he is not alleging that he has suffered material damage which is capable of being quantified or vouched. The plaintiff is, however, claiming non-material damage.

4. Article 82 of the GDPR

4.1 Article 82 GDPR provides that:

(1) Any person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered.

(2) Any controller involved in processing shall be liable for the damage caused by processing which infringes this Regulation. A processor shall be liable for the damage caused by processing only where it has not complied with obligations of this Regulation specifically directed to processors or where it has acted outside or contrary to lawful instructions of the controller.

(3) A controller or processor shall be exempt from liability under paragraph 2 if it proves that it is not in any way responsible for the event giving rise to the damage.

(4) Where more than one controller or processor, or both a controller and a processor, are involved in the same processing and where they are, under paragraphs 2 and 3, responsible for any damage caused by processing, each controller or processor shall be held liable for the entire damage in order to ensure effective compensation of the data subject.

(5) Where a controller or processor has, in accordance with paragraph 4, paid full compensation for the damage suffered, that controller or processor shall be entitled to claim back from the other controllers or processors involved in the same processing that part of the compensation corresponding to their part of responsibility for the damage, in accordance with the conditions set out in paragraph 2…

4.2 The defendant contends, that Article 82 must be read in light of Recital 146, which states as follows: “The controller or processor should compensate any damage which a person may suffer as a result of processing that infringes this Regulation. The controller or processor should be exempt from liability if it proves that it is not in any way responsible for the damage. The concept of damage should be broadly interpreted in the light of the case-law of the Court of Justice in a manner which fully reflects the objectives of this Regulation. This is without prejudice to any claims for damage deriving from the violation of other rules in Union or Member State law. Processing that infringes this Regulation also includes processing that infringes delegated and implementing acts adopted in accordance with this Regulation and Member State law specifying rules of this Regulation. Data subjects should receive full and effective compensation for the damage they have suffered. Where controllers or processors are involved in the same processing, each controller or processor should be held liable for the entire damage. However, where they are joined to the same judicial proceedings, in accordance with Member State law, compensation may be apportioned according to the responsibility of each controller or processor for the damage caused by the processing, provided that full and effective compensation of the data subject who suffered the damage is ensured. Any controller or processor which has paid full compensation may subsequently institute recourse proceedings against other controllers or processors involved in the same processing.”

4.3 Article 82 confers a right to compensation on a person who has suffered “material or non-material damage” as a result of an infringement of the GDPR.

4.4 The correct interpretation of Article 82 has generated a significant number of preliminary references to the CJEU, which concern, in particular:

(i) the meaning of “material” and “non-material damage”; and

(ii) the conditions for the imposition of liability under Article 82 and, in particular, whether some degree of “fault” is required in order to impose liability, particularly in the context of a hacking incident perpetrated by a third party.

5. The Issues which arise for Determination in these Proceedings

5.1 On the basis of the pleadings, read in light of Article 82 of the GDPR, the following issues, put forward by the defendants, arise for determination in these proceedings: a. Whether the defendants are liable for the unauthorised disclosure of personal data as a result of a “hacking” incident?

b. Whether the plaintiff is required to establish that his personal data was accessed and misused, or whether loss of control over the personal data in and of itself is sufficient to establish liability?

c. Whether the degree of fault of the defendants is relevant to the quantification of compensation?

d. What is the correct interpretation of non-material damage in Article 82(1) of the GDPR and, in particular, whether anxiety and apprehension alone are capable of constituting non-material damage?

e. What is the appropriate level of damages to be awarded where no material damage is suffered, and the non-material damage allegedly suffered is limited to interference with the plaintiff’s peace and privacy and apprehension about the use to which his data has been put?

5.2 In this context the defendants contend that it is relevant to note that the personal data of the plaintiff which was allegedly accessed by a third party is limited to the plaintiff’s name, email address, residential address and mobile number. The defendants submit that the plaintiff accepts that he has not suffered any material damage. In addition, the plaintiff confirmed in Replies to Particulars that he is not alleging that the interference with his peace and privacy or concern over further unauthorised use of his personal data has caused him to suffer any personal injury. Insofar, therefore, as the plaintiff alleges that he has suffered non-material damage, the defendants submit that it would appear to be limited to “mere upset” or subjective feelings of displeasure.

6. The Relevance of the Issues the subject of the Preliminary References to the CJEU

6.1 The preliminary references are exhibited to the grounding affidavit of the solicitor for the defendant sworn on 23rd of September 2022. Insofar as relevant, the questions referred to the CJEU pursuant to Article 267 TFEU include the following:

a. Does the award of compensation under Article 82 also require, in addition to infringement of provisions of the GDPR, that an applicant must have suffered harm, or is the infringement of provisions of the GDPR in itself sufficient for the award of compensation?

b. Is it compatible with EU law to take the view that the award of compensation for non-material damage presupposes the existence of a consequence of the infringement of at least some weight that goes beyond the upset caused by that infringement?

c. Does an unauthorised disclosure of or access to personal data by means of a “hacking attack” by persons who are not employees of the controller and are not subject to its control constitute an event for which the controller is responsible, or is the controller entitled to an exemption from liability? d. In the event of unauthorised access to personal data by means of a “hacking attack”, do the worries, fears and anxieties suffered by the data subject with regard to the possible misuse of personal data in the future fall per se within the concept of non-material damage, so as to entitle the data subject to compensation where such misuse has not been established and/or the data subject has not suffered any further harm? e. Is the degree of fault on the part of the controller or processor a decisive factor in the assessment of the amount of non-material damage to be compensated on the basis of Article 82(1) of the GDPR? In particular, can non-existent or minor fault on the part of the controller or processor be taken into account in their favour? f. Is it necessary, for the purposes of the right to compensation, to establish the occurrence of non-material damage, to be demonstrated by the claimant, in addition to the unauthorised disclosure of the protected data to an unauthorised third party? g. Is the concept of ‘non-material damage’ in Article 82(1) of the GDPR to be understood as covering any impairment of the protected legal position, irrespective of the other effects and materiality of that impairment? h. Assuming that damage has been sustained, can a national court award only minimal compensation, which may be perceived by the injured party or generally as merely symbolic, in the light of the non-serious nature of the damage? i. Are the consequences of the compensation for non-material damage to be assessed on the basis that identity theft requires an offender to have actually assumed the identity of the person concerned, that is to say to have somehow impersonated that person, or does the mere fact that offenders have gained possession of data that identify the person concerned constitute such identity theft?

6.2 The potential impact of the answers to the questions that have been referred to the CJEU is apparent in particular from the Opinion of Advocate General Campos Sánchez-Bordona in Case C-300/21, UI v Österreichische Post AG, dated 6th of October 2022, in which the Advocate General proposes that the following replies should be given to the Supreme Court of Austria:

a. Article 82 GDPR is to be interpreted as meaning that, for the purposes of the award of compensation for damage suffered by a person as a result of an infringement of that regulation, a mere infringement of the provision is not in itself sufficient if that infringement is not accompanied by the relevant material or non-material damage.

b. The compensation for non-material damage provided for in the

regulation does not cover mere upset which the person concerned may feel as a result of the infringement of provisions of the GDPR.

c. It is for the national courts to determine when, owing to its

characteristics, a subjective feeling of displeasure may be deemed, in each case, to be non-material damage.

7. Inherent Jurisdiction of the Circuit Court to Stay Proceedings

7.1 It is submitted by the defendants that the Circuit Court possesses an inherent jurisdiction to control its own procedures. Dowling and Martin, Civil Procedure in the Circuit Court, 3rd ed., 2018, recognises this for example in respect of the consolidation of proceedings, the jurisdiction to strike out proceedings for a failure to furnish security for costs, the jurisdiction to strike out proceedings as frivolous and vexatious or an abuse of process, the jurisdiction to dismiss proceedings for want of prosecution, and the jurisdiction to make directions with regard to the trial of proceedings.

7.2 Moreover, where there is no rule provided by the Circuit Court Rules (CCR) to govern practice and procedure, the practice and procedure of the High Court may be followed (Order 67, Rule 16 of the Circuit Court Rules). Section 27(5) of the Judicature Act (Ireland) 1877 confers a discretion on the High Court to stay proceedings in the following terms:

“Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit …”

7.3 This jurisdictional basis for staying proceedings was invoked in Doe v Armour Pharmaceuticals Inc. [1994] 3 I.R. 78 (stay on forum non conveniens grounds) and in O'Connor v Bus Atha Cliath [2003] 4 IR 459 at paragraph 86 (stay for abuse of process). The breadth of the jurisdiction of the Court to control its own process and to ensure observance of its procedures was emphasised by Kelly J. in P.J. Carroll & Company Ltd v Minister for Health and Children [2005] 3 IR 457 who explained, at page 466, that:

“There is a jurisdiction inherent in the court which enables it to exercise control over process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process. It is a residual source of power which the court may draw upon as necessary whatever it is just or equitable to do so.”

7.4 The scope of the inherent jurisdiction of the Court to control its own procedures was the subject of consideration by Clarke J, as he then was, in Kalix Fund v HSBC Institutional Trust Services (Ireland) Limited [2010] 2 IR 581. Having noted that the Court has an inherent jurisdiction to manage its own procedures, he stated as follows, at paragraph 8.8:

“It does seem to me, at the level of principle, that a court has a discretion, in ordering its business, to ensure that scarce court resources and the resources of parties to litigation are not inappropriately wasted by an unnecessary duplication of litigation. In addition it is, of course, important that measures are taken to minimise the risk of any inconsistent determinations arising from different proceedings.

…

Again at the level of principle, it seems to me that similar (but not necessarily identical) considerations apply where the court is faced with a number of actions involving, at least to some significant extent, the same or similar issues.

It seems to me to follow that the court has an inherent jurisdiction to manage the conduct of a series of cases which are connected by reason of having significant factual or legal overlap for the purposes … of bringing about "a just and expeditious trial whilst seeking to minimise costs". Applied to a number of cases, the obligation is to ensure that each party to each of the cases nonetheless will achieve, as best as can be done, a just and expeditious trial, but also that, across the range of cases, costs be minimised and scarce court resources not be wasted.”

7.5 The defendants submit, therefore, that there is no doubt but that this Court has the inherent jurisdiction to control its own procedures, including by the grant of a stay in these proceedings.

8. The Duty of Sincere Co-Operation

8.1 Article 4(3) of the TEU provides for the duty of sincere cooperation, as follows:

“Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or

particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives.”

8.2 The principle of sincere cooperation and the need to avoid the risk of irreconcilable judgments has been held by the CJEU to give rise to an obligation on the part of national courts to stay the proceedings in any case where there is a risk that the decision contemplated by it might conflict with an existing or future decision of the CJEU.

8.3 Member States enjoy general procedural autonomy in the procedures adopted within their legal systems, subject to the principles of effectiveness and equivalence. This is limited, however, by the principle of sincere cooperation and the need to avoid irreconcilable judgments. This arises in the context of parallel proceedings on the same or similar issues, before the national courts and the CJEU or the Commission.

8.4 Case C-344/98, Masterfoods v HB concerned the respondent’s exclusivity clause in its agreements regarding freezer cabinets in shops in Ireland. The Commission made a decision that the practice was in breach of Article 101 of the TFEU, which the respondent challenged by way of an action for annulment in the court of first instance. There were ongoing related proceedings before the Irish courts, during the course of which the Supreme Court made a preliminary reference asking, inter alia, whether the domestic proceedings should be stayed. The CJEU, in answering the questions referred, held that “the Member States' duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from Community law and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts”. The CJEU went on to hold that:

“… in order not to breach the general principle of legal certainty, national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of Articles 85(1) and 86 and Article 85(3) of the Treaty.”

8.5 The CJEU further noted that, if a national court has doubts as to the validity or interpretation of an act of a community institution, it must in accordance with Article

267 TFEU, refer a question to the CJEU for a preliminary ruling. Ultimately, the CJEU concluded, at paragraph 57, that:

“When the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted.”

8.6 Thus, a court of a Member State should either stay proceedings or, if it considers it is appropriate, make a preliminary reference to the CJEU where a risk of irreconcilable judgments arises.

8.7 The judgment in Masterfoods has been cited with approval and followed on numerous occasions by the CJEU, for example in Case C-819/19, Stichting Cartel Compensation v Koninklijke Luchtvaart Maatschappij.

8.8 However, the situation which pertains in this case is somewhat different to Masterfoods, which concerned the risk of irreconcilable judgments arising from domestic proceedings and proceedings before the courts of the EU which concern the validity of the same EU law measure. However, it was submitted by the defendants that the Irish courts have applied the Masterfoods principles in Irish proceedings which concern issues which are the subject of a preliminary reference to the CJEU.

8.9 In Merck & Co. Inc. v. G.D. Searle & Co. [2002] 3 IR 614, at 618, there were parallel proceedings seeking revocation of a patent before the High Court in Ireland and the European Patent Office. McCracken J, applying the Masterfoods principles by analogy, granted a stay pending the determination of the European Patent Court proceedings. He noted that the court’s approach should be to “start with the premise that, if possible, it [a stay] should be granted, and then consider whether there are reasons why it should be refused.”

8.10 In Belgium v. Ryanair Ltd [2009] 3 I.R. 417 the respondent sought to stay the proceedings, and sought a stay on enforcement of a Commission decision regarding state aid pending an action for annulment challenging that decision. O’Neill J, in rejecting the application to stay the enforcement proceedings, determined that the correct test in such circumstances was not Masterfoods, but the principles applied in Zuckerfabrik Suderdithmarschen A.G. v. Hauptzollamt Itzehoe, (joined Cases C- 143/88 and C-92/89 [1991] E.C.R. I-415), which applies to the grant of interim relief by the General Court or the CJEU as a matter of EU law.

8.11 In JTI Ireland Limited v. Minister for Health [2015] IEHC 481, Cregan J considered whether the Irish High Court should make a preliminary reference in circumstances where an identical reference had already been made by the High Court of England and Wales. The case concerned plain packaging of tobacco products, which was given effect by Public Health (Standardised Packaging of Tobacco) Regulations 2017, which transposed Directive 2014/40/EU (“the Tobacco Packaging Directive”) into Irish law. The Applicant challenged Article 24 of the Directive as incompatible with the provisions of the TFEU and, as it concerned two provisions of EU law, contending that this argument could only be made before the CJEU. In considering whether a preliminary reference should be made, the court noted, at paragraph 29:

“It is clear that the Court is entitled to take into account, in the exercise of its discretion, the fact that another preliminary reference has already been made on an identical, or similar issue, or that similar proceedings are pending (or might be taken). (See Friends of the Irish Environment Ltd. & Anor v. Minister for the Environment 2007 3 I.R. 459).

Moreover, I have also considered the following extract from

Preliminary References to the European Court of Justice (2nd ed., Oxford Press, 2014), Broberg and Fenberg at page 284:

“‘If an identical or corresponding question is already pending before the Court of Justice, the need for a reference will normally be less obvious. Indeed in cases where a national court has already submitted a question on the same matter, it is quite common for other national courts not to submit a new question but merely to postpone consideration of the case while waiting for the Court of Justice to render its preliminary ruling.

The same consideration applies when the Commission has

brought infringement proceedings under Article 258 TFEU

before the Court of Justice regarding the same matter as the

one before the national court or where the national court has

already referred a preliminary question another case and now

faces a similar issue in the new proceedings.’”

8.12 Cregan J noted the undesirability of having multiple preliminary references on the same issue and Advocate General Jacobs’ comments in Wiener SI GmBH v. Hauptzollamt Emmerich Case C-338/95, ECR 1997 I-06495 that domestic courts should exercise self-restraint given the strain on the CJEU’s case load. He concluded, at paragraph 37:

“It is clear from Article 267 TFEU that a national court may refer a matter to the CJEU ‘if it considers that a decision on the question is necessary to enable it to give judgment’. However, it is clear that once the CJEU has made its decision on the English reference, then it may not be necessary for this court to refer any question to the CJEU to enable it to give judgment in these proceedings. Once the English reference has been decided by the CJEU, it will have a significant effect on these proceedings and may even dispose of them altogether.”

9. Summary of the Plaintiff’s Response

9.1 The plaintiff’s position in respect of the defendants’ application is that it acknowledges that the Circuit Court would rightly adhere to the duty of sincere cooperation as required under the CJEU by allowing the proceedings to take their course through the delivery of a defence. They submit that furnishing a defence and dealing with any remaining interlocutory matters would not infringe on that duty. The plaintiff therefore submits that a stay is unnecessary at the current point in the proceedings where the defendants have yet to deliver their defence and where the proceedings are not imminently ready for hearing. The plaintiff contends that the proper course of action would be to advance the proceedings as far as possible to enable them to be ready for hearing. Only at that stage if guidance is still awaited from the CJEU, a stay could properly be contemplated then by the defendants

9.2 While the plaintiff acknowledges that the Circuit Court has an inherent jurisdiction to regulate its own proceedings, the Circuit Court should generally exercise that jurisdiction within the framework provided by the Circuit Court Rules, which are a creature of statute. The plaintiff submits that where the Circuit Court Rules provide for a procedure or course of action, then this court should show a high degree of deference to those rules before it contemplates invoking its inherent jurisdiction to depart from them. That, the plaintiff suggests, is particularly relevant in a case such as this where there is no suggestion that any party is failing to comply with the observance of process or engaging in an abuse of process.

9.3 The plaintiff contends that if a stay is granted the defendants will obtain a litigation advantage, in that if the decisions from the CJEU are perceived as being favourable to the defendants, this would make the plaintiff more pliable to a potential settlement or willing to accept a lodgement of a lower sum than might otherwise be proposed.

9.4 The plaintiff acknowledges that the statute law and caselaw submitted by the defendants in their submissions has been set out very fairly and comprehensively, however they state that there is very large disagreement between the parties regarding the applicability of that case law in the present case. The defendants submit the judgments put before the court of examples of occasions when a stay was granted pursuant to the inherent jurisdiction of a court were decisions of the High Court, and not the Circuit Court. Furthermore, the examples cited involved an element of noncompliance with procedure on the part of a party or some element of abuse of process or other weighty reason which is not the case here.

9.5 In contrast, in the within proceedings, the plaintiff contends that they have been mindful of costs in that the plaintiff has brought his case in the lowest court available to him pursuant to section 117(3) of the Data Protection Act 2018.

9.6 In this regard they point out: a. the plaintiff has brought his case in the lowest court available to him, b. the plaintiff clearly has at least a statable case, c. there is no suggestion that the proceedings are vexatious or an abuse of process, and d. there is no other just or equitable reason requiring the grant of a stay.

9.7 In summary, the plaintiff submits that “he simply wants to progress his case to get it ready for hearing”. The plaintiff also contends that the matters before the CJEU by way of preliminary references do not affect or impinge on the delivery of the defence(s) or on the interlocutory matters one might expect to arise pre-trial. The matters before the CJEU are relevant to issues that will arise at the trial and upon which this court will ultimately be required to decide at the conclusion of the trial. In particular, the CJEU will be giving guidance on the question of what constitutes “nonmaterial damage” in the context of the compensation provisions provided for in Article

82 of the GDPR.

9.8 Therefore, the plaintiff contends that the danger of an irreconcilable judgment could not possibly arise at the current point in the proceedings or before the proceedings proceed to a full plenary hearing.

10. Alternative Proposal by the Plaintiff

10.1 The plaintiff submits an alternative course of action would be to allow the proceedings progress so that they are ready for hearing. In this regard they contend that the most efficient way of dealing with the proceedings is to allow them to progress through their pre-trial stages. Counsel is required by virtue of Practice Direction CC21 [Certificates of Readiness in civil proceedings] to certify the matters as being ready for hearing. At this stage, it would be appropriate for Counsel to assess whether the matters are in fact ready for hearing. The question of readiness would include whether decisions are still then awaited from the CJEU. The plaintiff contends that the defendants have the protection of the mechanism provided for in Practice Direction CC21 of an application being made before this court if they disagree with the matter being certified as being ready for trial at that stage.

10.2 The plaintiff contends that given the fact that litigation takes time to progress through its various stages before trial, it is not unreasonable to assume that it would be well into the second half of 2023 before it could even be contemplated that this matter is ready for hearing. By that time, it is hoped that the CJEU would have determined the preliminary references currently before it, or at least it would be clearer when the matters before the CJEU would be decided.

10.3 In contrast the plaintiff alleges that the defendants are proposing to freeze these proceedings in time and only unfreeze them once the CJEU has determined the preliminary references, which is at some undefined point in the future. The prejudice this causes to the plaintiff, and to every other plaintiff, they state is obvious and is not compatible with the right to an effective judicial remedy provided for in Article 79 of the GDPR.

10.4 The plaintiff alleges that it is also foreseeable that further delays could arise if, for example, a national court in a Member State makes a preliminary reference to the CJEU on some other relevant provision of the GDPR between now and the matter being ready for hearing. This in turn would cause the defendants to request for the stay to be continued.

10.5 The plaintiff rejects the defendants’ contention that they will be required to incur costs if the matter is not stayed at the current point. While they acknowledge that all parties to litigation have an obligation to ensure costs are not incurred unnecessarily, the costs of delivering their defence and dealing with pre-trial matters will have to be incurred by the defendants at some point in the within proceedings regardless of whether a stay is granted now or not.

10.6 The plaintiff alleges that the defendants are seeking to make a type of legal “each-way bet” whereby they hope that decisions from the CJEU that may be perceived as being favourable to them would make the plaintiff willing to accept a lodgement of a lower sum than might otherwise be proposed. However, in this regard the plaintiff points out there is nothing stopping the defendants making a lodgement in this case. Their unwillingness to do so, the plaintiff submits, is for tactical reasons and should not be confused with any sort of prejudice accruing to them. Parties to litigation, whether plaintiffs or defendants, and their legal advisers have to make decisions all the time on the basis of imperfect information. The decision for the defendants in this case, on the question of whether to make a lodgement, is no different.

10.7 The plaintiff acknowledges, given the multiplicity of cases with similar facts before this Court, that the cases would benefit from case management or from a “lead” case being selected which would progress according to a directed timeframe and which might narrow the issues in subsequent cases. This, they submit, is a more appropriate course for the court to adopt rather than to accede to the defendants’ application for stay of the proceedings

11. Rules of Court

11.1 From time to time, questions of procedure arise in court proceedings. Although the Rules of the Circuit Court do not expressly provide for a stay of proceedings, Order 67, Rule 16 of the Circuit Court Rules states “where there is no Rule provided by these Rules to govern practice or procedure, the practice and procedure in the High Court may be followed”.

11.2 Section 27(5) of the Judicature Act (Ireland) 1877 confers a discretion on the High Court to stay proceedings in the following terms: “Provided always, that nothing in this Act contained shall disable either of the said Courts from directing a stay of proceedings in any cause or matter pending before it if it shall think fit …”

11.3 It is the defendants’ position that it is open to the Court to exercise its discretion adopted from High Court procedure to stay the within proceedings, “if it shall think fit”.

12. The Court’s View on the Applicability of a Stay on Proceedings:

12.1 The Circuit Court has no legal obligation to grant a stay but exercises a full and unfettered discretion depending on the facts in each case to decide whether a stay request is well-founded. In practice a stay of court proceedings can be sought at various stages in the proceedings. In principle, a stay will only be granted if exceptional reasons or special circumstances exist. In the court’s view there are three overall guiding criteria that would be generally considered by the court when a stay is requested:

i. First, the external circumstances must have a clear impact on the current court proceedings. An example of this is proceedings in which similar issues are being considered by an existing court such as for example the Superior Courts or the CJEU. ii. Secondly, the proceedings should be assessed with due regard to the principles of fairness and due process to the parties concerned. In this regard the court, for example, should consider if any party is prejudiced by the delay. By way of illustration, this can arise due to personal circumstances of a party or the non-availability of an essential witness. iii. Thirdly, a stay should not unduly affect procedural efficiency bearing in mind that proceedings should generally be conducted without any undue delay.

13. Applying the Law to the Facts of the Case

13.1 First, it is clear that in this case the court is required, in accordance with the duty of sincere cooperation provided for in Article 4(3) TEU, to stay these proceedings pending the determination by CJEU of the preliminary references referred to it by various member states in accordance with Article 267 of the TFEU. The question is should the stay be granted now or at the notice of trial stage. Secondly, the plaintiff has not proffered any prejudice, apart from the issue of delay itself, whereas the defendant has proffered substantial prejudice as outlined in paragraph 1.3 of this judgment. Thirdly, in practice the refusal of stay at this stage of the proceedings will have little impact on procedural efficiency to the plaintiff’s claim. However, it has the potential to substantially increase legal costs which may not be necessary. Thus, assessing the plaintiff’s claim at its highest level, damages are likely to be small and the continuation of the proceedings now are highly unlikely to increase those damages. It is accepted that the case does need to be concluded, however, justice can be best served by awaiting determination by the CJEU of the preliminary references referred to it by various member states in accordance with Article 267 of the TFEU.

13.2 The court has considered the alternatives suggested by the plaintiff, such as case management or taking a lead case. However, in the court’s view, in practice this could not be achieved, bearing in mind there are eight circuits with different circuit court judges and the various plaintiffs involved in separate proceedings are all independent. It is in the Court’s view that it is unrealistic to expect this court to exercise a supervisory role over those cases.

14. Conclusion

14.1 The Court in accordance with its duty of sincere cooperation provided for in Article 4(3) of the TEU grants an Order pursuant to the inherent jurisdiction of this Court staying the existing proceedings pending a determination by CJEU of the preliminary references referred to it by various member states in accordance with Article 267 of the TFEU, namely:

a. Case C-300/21 – UI v Österreichische Post AG

b. Case C-340/21 – VB v Natsionalna agentsia za prihodite

c. Case C-667/21 – ZQ v Medizinischer Dienst der Krankenversicherung Nordrhein d. Case C-687/21 – BL v Saturn Electro-Handelsgesellschaft mbH Hagen e. Case C-741/21 – GP v Juris GmbH f. Case C-182/22 – JU v Scalable Capital GmbH