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The Court of Appeal handed down judgment in December in Prismall v Google UK Ltd & another [2024] EWCA Civ 1516 in December. Mr Prismall’s appeal was dismissed. That likely marks the end of the road for representative claims in information law cases.
The Prismall claim related to the use by Google and DeepMind of patient data shared with them by the Royal Free Hospital for clinical safety testing of a medical health app.
Long-term readers will recall our note on Lloyd v Google LLC [2021] UKSC 50 where the Supreme Court held that for a representative data protection claim to succeed, each member of the class had to have a realistic prospect of success on their claim. In that case, because ‘loss of control’ was not recoverable as damage under the DPA 1998, there was no viable irreducible minimum claim for each claimant in the class. The Court of Appeal has now upheld the High Court’s application of the same approach to a misuse of private information claim, where loss of control is recoverable. Fundamentally, evidence of facts relating to each individual claimant would be required to establish the elements of an actionable claim in misuse of private information. There was as a result no irreducible minimum claim that applied to all claimants within the class, and the class could not be re-defined in such a way as to include only those with a viable claim.
The effect of this is that the use of CPR 19.8 to bring very widely defined representative information law claims on an opt-out basis seems, finally, to have hit the buffers. That still leaves other mechanisms such as Group Litigation Orders – but they are opt-in rather than opt-out, and are unlikely to provide the sort of economical basis for mass claims that would attract the litigation funding needed for them to be viable.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.