In this article we analyze the recent decision on the case Andrew Prismall v Google UK, in which the High Court had to consider the viability of an opt-out class action claim brought by a class representative.

Here are the details of the claim:

• The claim: focused on alleged misuse of patients’ private information in various respects (MOPI).
• Liability and the remedy sought: reasonable expectation of privacy and loss of control damages.
• Representative Claimant: faced inherent challenges in bringing the claim as a representative action because numerous variables existed among the members of the class requiring individualized assessment.
• Reasoning: if individualized factors were considered to demonstrate a reasonable expectation of privacy in specific situations, the “same interest” requirement would not be met among the members of the class.
• Decision: the judge decided to strike out the claim form because the representative action failed to meet the “same interest” criterion.

Introduction: The Origins of the Claim

In Prismall v. Google, the court grappled with the issue of class formation in a representative claim for damages in the tort of misuse of private information. The claimant, Andrew Prismall, acting as the “Representative Claimant”, sought to bring a claim on behalf of approximately 1.6 million people against Google UK Limited and DeepMind Technologies Limited, both part of the Google group of companies.

The claim arose from the transfer of patient-identifiable medical records from the Royal Free London NHS Foundation Trust to DeepMind. DeepMind’s involvement was in the development and operation of an app called Streams, which aimed to assist doctors in identifying and treating patients who were potentially suffering from acute kidney injury. The claim focused on alleged wrongful interference with patient information and misuse of data in various respects.

Class formation: The “Same Interest” Requirement

The judge analyzed the class formation considering the “same interest” requirement under Civil Procedure Rule 19.8(1) of the UK, which mandates that a representative claim can proceed if the representative has the same interest as the persons represented (i.e., members of the class). The purpose of this requirement is to ensure that the representative can effectively promote and protect the interests of all class members.

Insufficient Prospect of Success:

After considering the circumstances and variables in the case, the judge concluded that each member of the class did not have a realistic prospect of establishing a reasonable expectation of privacy or crossing the de minimis threshold regarding their medical records, which must be overcome before liability for MOPI to arise.  Among the factors that contributed to this conclusion:

1. The nature and quality of the transferred historical data varied significantly: The amount of data transferred depended on the hospital from which it came and upon the nature and extent of the person’s attendance (e.g., some class members’ data was already publicly available and/ or was non-sensitive in nature).
2. No impact other than loss of control: The information was securely held and remained inaccessible during the storage period and the interference had no discernible impact beyond the loss of control over the data itself and not every member of this class had a realistic prospect of establishing a MOPI claim on the non-individualised basis

In the judge’s words: “It cannot be said that every member of the class across the board has a viable claim. Equally, departing from the lowest common denominator scenario and bringing into account individualised factors for the purposes of showing that a reasonable expectation of privacy exists in particular situations would mean that the “same interest” test was not met. Either way the claim is bound to fail.” (Paragraph 169).

The judge further highlighted the challenges and practical problems associated with amending the claim to introduce more nuanced criteria or narrow the class. In this sense, the judge denied the chance to amend the class formation considering (i) the substantial number of potentially relevant variables and (ii) the difficulty in obtaining information about current class members and their records.

Conclusion:

Ultimately, based on the inherent difficulties of the claim and the lack of a viable prospect of success, the judge decided to strike out the claim form and particulars of the claim. This is because the representative action failed to meet the “same interest” criterion, and thus would require substantial re-formulation with a significantly narrower cohort to have any chance of success. This was not simply reduced to amend a specific deficiency in an otherwise viable claim, but it would involve potentially allowing a radically redrawn claim to be advanced.

Prismall v. Google serves as a significant case highlighting the challenges and complexities involved in forming a representative class for a claim and the importance of having clear rules about class formation. The judge’s reasoning, grounded in the need to protect the interests of all class members and the impracticality of an individualized assessment, led to the striking out of the claim.

Looking forward to new Spanish legislation on Collective Claims…

 

Claim: Prismall v Google UK, Case No: QB-2022-001362, [2023] EWHC 1169 (KB)