Prismall v Google: the Court of Appeal note the difficulty of the “same interest” test in the digital age
The Court of Appeal has handed down its judgment in Prismall v Google,[i] in an important decision on the application of the requirement that members of a class bringing a claim under rule 19.8 of the Civil Procedure Rules (CPRs) have the “same interest” in the proceedings.
Background
We have written about the Prismall case previously following the High Court judgment. Briefly, the case relates to a representative action claiming damages for loss of control of private information, caused by the Defendants’ alleged misuse of private information. The case was brought on behalf of patients at the Royal Free London NHS Foundation Trust, who had had certain medical records processed without their knowledge or consent by Google UK Limited and Deepmind Technologies Limited (Google’s AI research company) between October 2015 and 29 September 2017.
For a claimant to bring a claim for misuse of private information, they must show that they have a reasonable expectation of privacy in the relevant information. This requires a certain level of seriousness to be met, taking into account the relevant circumstances of the case.
Additionally, under rule 19.8 CPR, claimants seeking to bring a class action are required to have the “same interest” in the claim in order. This can give rise to complications, as the individuals comprising the group may have had different information misused to different extents. To address this, claims commonly assert that it is possible to identify an “irreducible minimum harm” suffered by every member of the class, or a hypothetical “lowest common denominator” claimant, which provides the “same interest” on the basis of which damages can be sought.[ii]
Judgment
In Prismall, the Court of Appeal was asked to consider whether the lowest common denominator claimant had a real prospect of succeeding in a claim for misuse of private information where:
- medical records were the subject of the alleged misuse; and
- members of the class had put relevant information in the public domain.
If not, the claim would fail, as the lowest common denominator claimant would not meet the required threshold of seriousness.
The Court noted that a claimant had a reasonable expectation of privacy in respect of medical notes, but that this remained subject to the seriousness test, and therefore held that it was not possible to say that every medical note which was the subject of the case would have met that threshold.
Additionally, the Defendants referred to two articles in the media: one concerning a member of the class who had been treated with the assistance of the app operated by the Defendants; and one containing an interview with the class representative, Mr Prismall, in which he gave information about a liver transplant from which he had benefitted. The Defendants therefore argued that there could be no reasonable expectation of privacy related to such information.
Even though the Court of Appeal noted that in the circumstances - including Google’s use of large quantities of patient medical data for its own commercial purposes without the patients’ knowledge or consent - it did not find the Defendants’ argument an attractive one, it nevertheless held that, considering the publication of this information as part of the circumstances of the tort, a claim in respect of that information would not succeed. As a result, it was not possible to find an irreducible minimum which would be capable of giving rise to damages, and the same interest requirement could not be met.
Comment
This case illustrates the difficulties in the application of the “same interest” test under CPR 19.8, in particular in relation to data privacy claims.
The Court of Appeal was keen to note that the publication of some information by a claimant did not preclude a claim from arising in respect of other information in respect of which the claimant might retain a reasonable expectation of privacy. So, for example, it might have been open to Mr Prismall to advance a claim in respect of other health information which was not the subject of the published interview. It may, therefore, be open to claimants to attempt to define the class in future cases in such a way that the claim can proceed, for example on the basis that published information, or information in respect of which an individual would not have a reasonable expectation of privacy, is excluded. This will likely be a matter of fact, including the nature of the information which is the subject of the claim, as well as the way in which the claim is advanced.
Further, it is notable that the claimant in Prismall only claimed damages for loss of control of information. A potential alternative route for such claims may be to bring a claim for ‘user damages’, which are compensatory damages paid to a claimant for interference with a right to control the use of their property, as the “irreducible minimum harm”. Since user damages are assessed based on what fee would reasonably have been agreed by the claimant to allow the defendant to use the right, this may be a way to avoid differences between class members when assessing their interest in the claim (although it may require an assumption that all members of the class would have attributed at least the same minimum value to their right to use their personal information as they see fit).[iii]
And going forward?
In any event, the decision in Prismall demonstrates the distinction between the opt-out regime, which is open to claims for breaches of competition law, under the Consumer Rights Act 2015, and the procedural mechanisms for all other group claims. Under the competition regime, the Competition Appeal Tribunal is able to adopt a more flexible approach to damages, including making an award of aggregate damages, which removes the difficulty of making an individual assessment of the damages recoverable by each class member.[iv] Additionally, liability (including points on causation and loss) can be assessed by the Tribunal on an aggregate basis,[v] and the Tribunal is able to adjust total damages to account for any class members which might not have suffered loss,[vi] rather than this posing a hurdle to pass at the certification stage.
The benefits of a flexible procedural mechanism that facilitates access to justice in these circumstances are not only compensation to affected individuals or smaller market participants, but also the availability of judgments to lay down principles to be followed in the future, or to act as a deterrence to misconduct.
The circumstances of this case involve Defendants making use of large quantities of patient medical data for its own commercial purposes without the patients’ knowledge or consent, and the Court of Appeal noted the Defendant’s procedural objections were unattractive in that context. Leaving aside the particular facts of the case, on any view, the primary available mechanism for bringing these claims on a group basis - CPR 19.8 - is a less flexible mechanism for managing group claims than the collective proceedings regime under the Consumer Rights Act.
The collective proceedings jurisdiction was originally envisaged to be rolled out on a sector by sector basis, incorporating learning along the way. This ruling highlights that this exercise is now ripe for reconsideration, not only for consumer claims, but also, as previously contemplated, for data protection, environmental, and financial misconduct claims.
Footnotes
[i] Prismall v Google UK Ltd [2024] EWCA Civ 1516.
[ii] As discussed by the Supreme Court in Lloyd v Google [2021] UKSC 50.
[iii] See the discussion of the Supreme Court in Lloyd v Google [2021] UKSC 50 at [142]-[143].
[iv] Section 47C of the Competition Act 1998. The Supreme Court has held that a: “central purpose of the power to award aggregate damages in collective proceedings is to avoid the need for individual assessment of loss.” Mastercard Inc v Merricks [2020] UKSC 51 at [77].
[v] Lloyd v Google [2021] UKSC 50 at [31], as followed by the Court of Appeal in Justin Gutmann v London & South Eastern Railway Limited [2022] EWCA Civ 1077 at [33].[vi] Justin Gutmann v London & South Eastern Railway Limited [2022] EWCA Civ 1077 at [78].