Summary

In the recent decision of Rhodia International Holdings Ltd v Huntsman International LLC [2007] EWHC 292 (Comm) the Commercial court came to the conclusion ‘as a matter of language and business common sense’ that there is a difference between ‘best endeavours’ and ‘reasonable endeavours’. 

This is comforting for those of us who regularly use these two terms in contracts to impose or accept two different levels of obligation or responsibility.

Therefore, according to Rhodia International:

• there is a distinction between best endeavours and reasonable endeavours, with each lying at the opposite ends of the spectrum,

• ‘all reasonable endeavours’ is either equivalent to ‘best endeavours’ or (more likely) in between the two, and

• where you have to use ‘reasonable endeavours’ but specific steps are provided for then those specific steps have to be undertaken even if this prejudices your commercial interests; but if no steps are specified then you do not need to prejudice your commercial interests.
  

On 21 August 2007 the Information Commissioner's Office published a technical guidance note on determining what is personal data. This follows the publication by the Article 29 Working Party of its opinion on personal data.

As the ICO confirms in the guidance, there was a need to replace its guidance following the Court of Appeal decision in Durant.

The guidance is presented as a checkist of scenarios, which is a practical way of dealing with the issue and on the whole is easy to follow. While the ICO's guidance is always persuasive and should not be lightly ignored, it is just that. Ultimately the courts (as in the Durant case) will apply the Data Protection Act foremost and will give to the DPA whatever interpretation it considers correct (or will follow any other binding authority).

What is particularly unhelpful in the guidance is the treatment of personal data which has a "biographical significance".

The guidance states: "When considering 'biographical significance', what is important is whetehr the data go beyond recording the individual's casual connection with a matter or event which has no personal connotations for him." Using the example of a memo the ICO seems to suggest that the list of attendees of a meeting may be personal data because it may record an individual's whereabouts at a particular time.

On that basis alone it would seem that any meeting note should not record who was in attendance because if it does so then that note will have to be dealt with as personal data under the DPA, with the attendant precautions applied to it. Are we now in the situation where it would be better not to record who attended a meeting?

It is indeed unfortunate that the ICO has not taken the opportunity to apply a more pragmatic interpretation to this class of data. This is a very narrow interpretation, an approach which the Court of Appeal rejected in Durant.