Spurgeon & Ors v Capita plc [2026] EWHC 241 (KB) (9 February 2026). The High Court has refused an application to strike out compensation claims brought by around 4,000 individuals affected by the Capita data security breach. The application claimed abuse of process arising from the claimants’ lawyers allegedly pleading their case based on assertions which did not reflect their clients’ instructions such that the claimants’ evidence became “irrevocably tainted”. Counsel and solicitors, however, have a very wide latitude as to how they seek and receive instructions, as to how they give advice and as to how to formulate clients’ instructions into pleadings. On the materials before him, Master Dagnall was satisfied that the individual claimants were entitled to decide to assent to the Particulars of Claim and while some of the language was open to interpretation anything that required clarification could be dealt with at a consequentials hearing.

Background

In 2023 the defendant, British outsourcing firm Capita, suffered a serious data breach. The breach affected employees as well as 325 pension schemes of Capita’s clients, and resulted in hackers stealing the personal information of 6.6 million people. Following discovery of the breach Capita notified over 9,000 “high-risk” affected data subjects including the claimants in this case.

Barings solicitors advertised on their website that they could act to bring "Data Breach Compensation Claims” where potential claimants had been notified of data breaches. The website contained links to a "no win no fee agreement", a "form of authority" and a "Data Breach Questionnaire". The questionnaire asked for details of any financial loss, distress or adverse consequences suffered, and “any other information that may be of relevance”. Barings estimate that the average claim could be worth around £1,000, putting the total value of all the claims at around £3-4 million.

Pleadings

Based on these materials Barings drafted Particulars of Claim pleading damage and distress. Particulars of distress allegedly suffered were set out in two tables in schedules to the Particulars of Claim. Barings sent a copy of the Claim Form and of the Particulars of Claim to each individual claimant prior to issue, asking them whether they agreed to their claims being advanced on this basis, and each individual agreed.

Strike-out application

Capita applied to strike out the claims for abuse of process on the basis that:

  • Barings had irrevocably tainted the claimants' evidence by “putting words into the Claimants' mouths” on the fundamental (and highly subjective) issue of loss and damage, such as "violation", "tormented" and "betrayal of trust" which had not been used by individual claimants and which did not appear in the questionnaire; and/or
  • Barings had signed a statement of truth in circumstances where, as they knew or should have known at the time, the "Particulars of Distress" did not reflect instructions given by the claimants.

According to Capita, the claimants could no longer properly advance or give evidence as to their cases, such that the consequence of the abuse was that it was only right that the court should take the draconian step of striking all the claims out.

In response the claimants said that Capita’s contentions involved very serious allegations of professional misconduct against both counsel and Barings and that they were unfounded. They argued that it was entirely usual and proper for a client to produce an initial account of relevant events, and for the lawyer, having clarified that their impressions are correct, to enable the client to advance (if the client thinks it to be correct and right) their best case, even if the lawyer's questions are technically "leading".

Decision

Master Dagnall did not consider it right to strike out the claims. The pleadings were drafted by lawyers, not by the individual client claimants, and were the words of those who drafted them (and not of their clients). They were verified by statements of truth by the legal representative who had proper confirmation and authority from the clients.

Further, pleadings are not witness statements or evidence. They are simply a statement of the asserted facts upon which a claimant relies to assert a claim in law. Each claimant would provide a witness statement(s) (from themselves and/or others) which would set out their own factual history and evidence as to their mental etc states in detail and it was on those and other evidence that the eventual trial would be resolved, should there be one, and not the pleadings. Further the defendant could insist on provision of a witness statement(s) in relation to the case of each individual claimant. While Particulars of damage generally have to include a statement of how the relevant breach has caused the relevant asserted damage and Master Dagnall acknowledged that the mere statement that a claimant has suffered damage would generally be too imprecise, he considered that a statement that a claimant has suffered "distress" may well be sufficient for an initial pleading (at least in the absence of any direction for Further Information).

Master Dagnall also rejected Capita’s submission that various (or all) claimants would not have felt particularly hurt unless and until their lawyers drafted the tables in a form which said that they had been "tormented" and/or felt there had been a "violation" or that they had been "betrayed". He considered it perfectly possible and natural for a claimant to feel all of those things in the circumstances. While it might be right that any individual claimant would not have brought a claim without the lawyers providing a commercial mechanism for them to do so, Master Dagnall did not think that their taking action was, at least at first sight, other than because they thought that they had suffered some real damage.

Finally, at least in principle, each claimant was entitled to a judicial determination of their entitlement to damages (see Farley v Paymaster (1836) Ltd (t/a Equiniti) [2025] EWCA Civ 111 at [101]). The court had to consider very carefully, even if there has been an abuse, whether that should mean that the claimant could no longer pursue their claim against the wrongdoer defendant (see Farley at [102]). Striking out for abuse is a draconian step (see Summers v Fairclough [2012] UKSC 26 at [45]). It is not enough that pleadings are imperfect or inelegant; there must be conduct that would “bring the administration of justice into disrepute”.

On the material before the court there had not been an abuse of process. Barings and counsel had received the completed questionnaires (possibly with some limited further information from some claimants), formulated the Particulars of Claim and the tables and the schedules, and put them to the individual claimants who assented to them. Master Dagnall could not see that the lawyers had done anything wrong. Counsel has a wide latitude to consider how to formulate into the form of a pleading what is being said to him in his instructions. The pleading was the work of the lawyer, not the client. Counsel's duty was primarily to the client, and was to formulate their case in the most effective and high-level way.

Rejecting Capita’s contention that counsel cannot put to their own client matters in a leading way, Master Dagnall said that counsel and solicitors have a very wide latitude as to how they seek and receive instructions, and as to how they give advice. While others might have done things differently, Master Dagnall considered on the material before him that the claimants’ lawyers had a real basis for what they did, and, having obtained their individual claimant clients’ assents, they were entitled both to do that and to sign the statement of truth. Further, on the material before the court, the individual claimants were entitled to act as they did and to decide to assent to the Particulars of Claim, the tables and the schedules.

Master Dagnall did, however, say that he was “distinctly concerned” by some of the wording. For example, “tormented” could have a range of different meanings ranging from mild/medium annoyance to mental agony. Different readers might have very different understandings of the level of seriousness being imported by the use of the word "tormented" in the tables. That was undesirable for several reasons: what is being asserted in a pleading should be clear; the individual claimants when assenting to the use of the word might have different ideas as to what it meant; and differences in meaning had already contributed to a substantial dispute. Master Dagnall’s provisional view was that the word "tormented" should be replaced with something along the lines of "varying degrees of substantial anxiety and distress". He expressed similar concerns in relation to the expressions "violation of security" and "betrayal of trust". Some clarification was required but that could be dealt with at a consequentials hearing.

Comment

This is not a class action, which for lack of unity (“same interest”) within the class wouldn’t have got off the ground, but a case involving multiple claimants whose entitlement to damages for damages and/or distress must be assessed on a case-by-case basis. This judgment reflects a pragmatic balance: safeguarding procedural integrity without shutting the door on collective redress in data protection claims, and it will be interesting to see how the case progresses. Capita accepted that individual claimants might have genuine damages claims at some level, if not at £1,000 per claimant, but argued that as a result of the abuse of process the claims should be pursued against Barings. That attack having failed, will Capita, at considerable cost, put the claimants to proof of damage and/or distress or will it, at considerable cost, be minded to settle? Added to the £14 million Capita was fined by the ICO, the case therefore demonstrates the serious consequences large organisations operating across complex multi-domain IT environments can face if they fail to meet their security obligations under data protection laws.