Prismall v Google UK Limited [2023] EWHC 1169
Finding, and funding, a viable representative action remains an elusive quest. Although there is only one fundamental requirement (that the representor and all the representees must have the “same interest”), it has been a struggle to see a claim get off the ground. The latest failed attempt involved a claim being brought seeking damages in the tort of misuse of private information (MOPI). Such claims are always going to be difficult to bring in the light of Lloyd v Google and the challenging landscape created by Lord Leggatt. In simple terms, the claimant has to succeed in establishing that the tort is committed to every member of the proposed class, and if he cannot do that, then by definition the “same interest” test is not met. In a MOPI context that means that each member of a class needs to have a realistic prospect of establishing a reasonable expectation of privacy and that they have a viable claim for more than trivial damages for loss of control. It is well established that there is a de minimis threshold which must be overcome before liability for MOPI can arise.
It goes without saying that when a claim is brought on behalf of someone that is not actually known to the representative claimant, the representative claimant cannot be certain as to how individual circumstances would sound in damages. Since there is no plausible way that multiple individualised damages can be sensibly recovered in a representative action, there is an ever-present risk that a representative - in order to try and bring a plethora of claims that could lead to differing levels of damages - will seek to claim a nominal per capita amount. This is what happened in Lloyd v Google. This kind of approach is suggestive of trying to fit claims into a structure that is not meant for them.
This unpromising context sets the scene for the Prismall case. The claims revolved around the one-off transfer of certain patient-identified medical records to Google (well, DeepMind, part of the Google group of companies). Fuel to the fire was perhaps given by the Information Commissioner who had determined that DeepMind’s processing of the data was not in compliance with data protection legislation. The data was ultimately used for the purpose of a medical app that could assist clinicians with the diagnosis of a kidney condition. It is not evident what identical damage could have been suffered by all of the patients - indeed, one could speculate that some of the patients may have been pleased to have assisted in this process - particularly if they later benefited from the research. Immediately there is a red warning light that the “same interest” requirement may be vulnerable.
It was well-established that not every disclosure of medical information would give rise to a reasonable expectation of privacy and it was accepted that a reasonable expectation of privacy would not arise in relation to medical information that is used for the direct care of patients. Both these concepts would ordinarily demand an assessment of individual circumstances - the representative process simply precludes that level of investigation. Another warning light flashes.
Inevitably, Google emphasised the amount of variable circumstances that could arise between class members in the case. As soon as the Court took the view that the representative was unable to overcome the need for individualised assessment by relying upon a proposition that a reasonable expectation of privacy would exist, or arguably exist, over all of the information, the case was doomed.
Collective action cases continue to be cases that attract funding. There are undeniable economic benefits to investing in claims where the class is 1.6 million strong. However, once it becomes appreciated that there is a need to evaluate 1.6 million sets of damages, the case rapidly loses its attraction. Representative claims will have their day in Court, but their use will inevitably remain tightly controlled. A representative claim should only really be considered when it is self evident that all claimants have suffered readily quantifiable damage because of the same tortious conduct. The damage need not be the same for every individual, but unless it is easily shown eg via a tariff (more expensive seats in a concert, for example), then the prospects of successfully running a representative claim become difficult. The answer to this damages conundrum is to accept Lord Leggatt’s invitation to bifurcate the proceedings and only pursue a liability trial and leave the damages for another day. But such an approach is complicated for a funder to consider when evaluating the investment.
http://www.bailii.org/ew/cases/EWHC/KB/2023/1169.html