Procedural Irregularity Will Not Defeat an Inevitable Transfer of a Part 53 Claim to the County Court (CPR 53.4 / CPR 3.3)

1. Introduction

Wysokinski v OCS Security Ltd [2026] EWCA Civ 26 is a Court of Appeal decision concerning where a data protection and Human Rights Act 1998 claim (categorised as a “media and communications claim” under CPR Part 53) should be heard after it was incorrectly issued in a High Court District Registry.

The appellant (Mr Wysokinski) sued OCS Security Ltd arising from the alleged confiscation of a medical device during court security screening and the subsequent alleged disclosure of sensitive medical information to third parties (a court usher and a solicitor in other proceedings). The claim pleaded breaches of UK GDPR and the Data Protection Act 2018, and alleged violations of Article 6 and Article 8.

The key issue on appeal was essentially singular: was the County Court the appropriate venue (as opposed to transfer to the Royal Courts of Justice in the King’s Bench Division) once the claim had been improperly issued in a District Registry contrary to CPR r.53.4(1)?

The appeal also raised important procedural points: (i) whether a transfer decision made without a hearing and without inviting representations was unfair, (ii) whether the absence of reasons mattered, and (iii) the consequence of non-compliance with CPR r.3.3(5)(b) (which requires an order made on the court’s initiative to record the right to apply to set aside/vary/stay).

2. Summary of the Judgment

• The Court of Appeal (Yip LJ, with Moylan LJ and Bean V-P agreeing) dismissed the appeal and upheld the transfer to the County Court.
• The Court accepted there were procedural deficiencies: the judge made the transfer order without hearing or representations; the order lacked reasons beyond recitals; and it failed to include the CPR r.3.3(5)(b) notice.
• However, those deficiencies did not affect the outcome because, on the available material (and further material admitted on appeal), the claim was low-value, straightforward, and not of public importance; therefore the County Court was plainly the appropriate forum and the transfer was inevitable.
• On costs, despite the respondent’s success, the Court exercised discretion to reflect (a) the procedural deficiencies that helped generate the appeal and (b) proportionality concerns about the respondent’s costs: the appellant was ordered to pay a £5,000 contribution (inclusive of VAT), not enforceable until the conclusion of the underlying claim save by set-off.

3. Analysis

3.1 Precedents Cited

The judgment cites and endorses guidance from Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB); [2022] Costs LR 1451. That case was treated as an authoritative statement (from Nicklin J, then Judge in Charge of the Media and Communications List) on:

• The existence of a category of non-defamation media and communications claims—including data protection claims—that are capable of being “fairly tried” in the County Court, often with relatively low damages and limited complexity.
• The warning against over-complicating “classic data breach” claims by adding legal causes of action that add little but increase cost and complexity.
• The explicit recognition that County Court judges are well able to determine the legal issues that commonly arise in data protection, misuse of private information, and breach of confidence litigation.

In Wysokinski, Yip LJ expressly stated, “I would endorse those observations,” signalling that Cleary is not merely case-specific but an important steer on forum allocation for routine data protection claims. The Court used Cleary to frame the “appropriateness” assessment: claims of modest value and limited complexity generally belong in the County Court even though Part 53 allows issue in either court.

3.2 Legal Reasoning

(a) The procedural setting: CPR 53.4 and the transfer decision

The appeal arose because the claim was issued as a High Court media and communications claim in the Cardiff District Registry, contravening CPR r.53.4(1) (issue must be in the King’s Bench Division at the Royal Courts of Justice and marked “Media and Communications List”). Under CPR r.53.4(2), such a claim issued in a District Registry “must be transferred either to the County Court or to the Royal Courts of Justice (as appropriate).” The judge therefore had to choose between two destinations.

(b) The “appropriateness” test: PD 7A and CPR Part 30 factors

The Court identified the relevant decision-making framework:

• PD 7A 2.10(1) disapplies the general High Court value threshold for media and communications claims, meaning they may be issued in either High Court or County Court.
• PD 7A 2.10(2) provides that a media and communications claim should be started in the High Court if, considering factors including value, complexity, and public importance, the claimant believes it ought to be dealt with by a High Court Judge.
• PD 7A 2.10(3) states that where a claim is started in the High Court but should have started in the County Court, transfer will normally occur on the court’s own initiative.
• In choosing whether to transfer to the RCJ or the County Court after an incorrect District Registry issue, the court is guided by CPR 30.3(2), which includes value, specialist judges, complexity, and public importance (non-exhaustive).

(c) Application to the facts: why the County Court was “inevitable”

The Court’s reasoning on forum was anchored in what the claim looked like at the time of transfer and what the additional material showed:

• Value: the claim was pleaded at £15,000–£30,000 for distress/nominal damages (with nominal damages of £30 suggested), well within ordinary County Court business.
• Complexity: on the face of the claim form, the dispute was a routine alleged disclosure of “special category data” with a predominately damages-based remedy. There was no pleaded complexity requiring a High Court judge in the specialist list.
• Public importance: nothing suggested the outcome would be important “to the public in general” as distinct from the parties.
• Narrow factual dispute: the respondent’s solicitors admitted liability in principle (subject to seeing the certificate/prescription), contending only nominal damages; thus the likely issues were straightforward, primarily quantum and distress evidence.
• Irrelevance of the other proceedings context: the appellant’s attempt to link the disclosure to fairness in other litigation did not change the forum analysis; any fairness complaints about the other proceedings had to be addressed within those proceedings, not via the data protection claim.

A key doctrinal move is the Court’s insistence that forum is assessed by reference to the proper scope of the claim and the realistic issues to be tried, not by an expansive narrative of collateral consequences. That approach reinforced the conclusion that a County Court judge could readily determine liability (if disputed) and assess damages for distress.

(d) Reasons and procedural fairness: error identified, but no reversible injustice

The Court drew a careful distinction between (i) procedural correctness and (ii) the substantive inevitability of the outcome. It held:

• While reasons for an initiative order may sometimes be inferred, it is “usually appropriate” for an order to contain brief reasons so that parties can make informed decisions about applying to set aside/vary and avoid unnecessary applications/appeals.
• The failure to include the CPR r.3.3(5)(b) notice was an irregularity, and the appellant’s prompt request for reconsideration ought sensibly to have been dealt with by providing reasons and extending time for a formal application.
• Nonetheless, because the County Court forum was correct and would have been the decision even if procedural steps had been followed, the appeal failed: the deficiencies did not undermine the correctness of the transfer decision.

In effect, the judgment applies a pragmatic appellate approach: procedural shortcomings may warrant criticism and may affect costs, but do not justify allowing an appeal where there is no realistic possibility of a different substantive outcome.

(e) Costs: procedural deficiency and proportionality as moderating factors

The costs ruling is notable. Despite the respondent’s success, the Court held it was not reasonable for the appellant to bear the entirety of the respondent’s (very substantial) appeal costs. The Court relied on:

• CPR 44.2 (discretion; general rule but court may depart), and CPR 44.4 (all circumstances including conduct).
• The fact that procedural deficiencies below contributed to the appeal being pursued, and the force of the proportionality criticism.

The result—£5,000 contribution, deferred enforcement save by set-off—illustrates an important incentive structure: courts may temper costs consequences where avoidable procedural mishandling triggers satellite litigation.

3.3 Impact

• Forum allocation in Part 53 data protection claims: The decision reinforces that many data protection claims—especially modest-value, factually straightforward distress claims—are properly tried in the County Court, even though Part 53 permits High Court issue. It strengthens the practical authority of Cleary v Marston (Holdings) Ltd in day-to-day allocation disputes.
• Transfer decisions based on early information: The Court implicitly approves judges making an allocation decision on the claim form when compelled to do so by CPR 53.4(2), rejecting the suggestion that a court must wait for Particulars of Claim before deciding venue in this procedural posture.
• Procedural discipline for initiative orders: The judgment signals that failures to comply with CPR 3.3(5)(b) and to provide short reasons are “irregularities” that courts should avoid. While not necessarily appeal-winning points, they can influence costs outcomes and judicial criticism.
• Costs proportionality in venue appeals: The costs order indicates the Court of Appeal’s willingness to treat disproportionate costs claims seriously and to avoid placing full costs exposure on an appellant where the system’s procedural failures helped create the appeal.

4. Complex Concepts Simplified

• “Media and communications claim” (CPR Part 53): A procedural category covering certain claims involving speech, information, and privacy, including data protection claims. It carries special issuing and management rules.
• “Royal Courts of Justice” vs “District Registry”: Many High Court claims can be managed regionally, but Part 53 claims issued in the High Court must be issued in the King’s Bench Division at the RCJ, not in a local High Court District Registry.
• Order “on the court’s initiative” (CPR 3.3): The court can make certain orders without a party’s application. If it does so without a hearing, it must tell parties they can apply to set aside/vary/stay, usually within 7 days (CPR r.3.3(5)(b)).
• “Special category data”: Sensitive personal data under UK GDPR (e.g., health information). Its mishandling can be a serious data protection breach.
• Damages for “distress” in data protection claims: Compensation can include non-financial harm (anxiety, upset, distress), often assessed by judges in routine civil work—one reason such claims frequently suit the County Court.
• “Set-off” (in the costs order): If, later in the main claim, the appellant wins money from the respondent, the respondent can deduct (set off) the £5,000 costs contribution from what it must pay.

5. Conclusion

Wysokinski v OCS Security Ltd confirms a robust, practical approach to forum allocation for data protection claims under CPR Part 53: where the claim is modest in value, factually and legally straightforward, and lacks wider public importance, the County Court is the appropriate venue.

Procedural shortcomings—absence of brief reasons, failure to invite representations, and non-compliance with CPR r.3.3(5)(b)—were expressly identified as irregularities, but they did not justify overturning a substantively correct and “inevitable” transfer decision. Their real bite was felt in costs, where the Court moderated the respondent’s recovery to reflect fairness and proportionality.

The broader significance lies in (i) strengthening the expectation that routine data breach/distress claims will be managed in the County Court, consistent with Cleary v Marston (Holdings) Ltd [2021] EWHC 3809 (QB); [2022] Costs LR 1451, and (ii) underscoring that courts should give short reasons and proper procedural notices to avoid unnecessary satellite appeals.