Litigation Trending: The Trouble with the Lowest Common Denominator

Latest High Court judgment illustrates the difficulties of a representative claim and the same interest test

The High Court has recently considered another representative action under CPR 19.8 (formerly 19.6) and the "same interest" requirement. In the Prismall v Google judgment, Mrs Justice Heather Williams struck out a claim for misuse of private information brought on behalf of approximately 1.6 million people whose medical records were transferred by an NHS Trust to a Google subsidiary.

The judgment

The claim and the class

The Royal Free London NHS Foundation Trust (the Royal Free) transferred historical patient data and set up a live feed to DeepMind Technologies Limited, a Google subsidiary, in order to help develop an app to assist clinicians in the diagnosis and treatment of acute kidney injuries.

Mr Prismall originally brought a claim seeking damages under the Data Protection Act 1998, but in light of the Supreme Court decision in Lloyd v Google, he refiled the claim as a representative action for loss of control damages under the tort of misuse of private information (MOPI) against Google UK Limited (Google) and DeepMind Technologies Limited (DeepMind).

The proposed class of 1.6 million claimants comprised individuals who presented for treatment at a Royal Free hospital, clinic or medical service provider. The class therefore encompassed a very large range of individuals and circumstances, from those who once attended an A&E department, through to patients who had extended treatment plans across multiple visits and many years.

Lowest common denominator and irreducible harm

In order to bring a representative action, the claimants needed to satisfy the "same interest" test in CPR 19.8(1). As in Lloyd v Google, the claimant sought to do so by seeking "lowest common denominator" damages based on an irreducible minimum harm suffered by all members of the class. In practice, this required the Court to identify the minimum circumstances which applied to every member of the claimant class.

Narrowing the claim on this basis, however, meant that there was no real prospect of all the claimants in the class establishing a MOPI claim. The court concluded that the irreducible minimum harm was, among other matters, the transfer of records of one attendance at hospital not concerning a medical condition involving any sensitivity or stigma and likely already public knowledge. The result was that very limited information was transferred and the health-related information was anodyne in nature. It could not therefore be said that everyone in the claimant class would be able to demonstrate the necessary reasonably expectation of privacy and therefore would have a viable MOPI claim. The High Court accordingly struck out the claim. 

Implications of the judgment

There are a few interesting points to take away from the judgment:

1. The "same interest" required by 19.8(1) was applied strictly

It is now clear that in order to bring a representative action on a lowest common denominator basis, it is important to analyse carefully the circumstances of the members of all of the claimant class which led to the harm complained of. Individual circumstances will be discounted.

For Defendants, this represents an obvious point of attack in respect of such claims at an early stage. It remains to be seen how far claimant lawyers will be able to address this by defining the scope of the putative class to make a claim legally viable but still economically worthwhile.

2. The attractions of a bifurcated process

The court reiterated Lord Leggatt's suggestion in Lloyd v Google (see our article here) that there may be advantages to adopting a bifurcated process allowing the Court determine common issues of fact and law, such as whether the data had been interfered with, and seeking a declaration on behalf of the class of the entitlement to compensatory damages.

The issue remains whether that is economically attractive to litigation funders and claimant lawyers. But we have heard that privacy activists, interested in establishing declaratory relief, may be cooperating with claimant law firms and litigation funders who would use such declarations as the basis for claims. That could be interesting.

A bifurcated process may also now become the only realistic route of pursuing data based group claims. In the immediate fall out of Lloyd v Google, many of the cases seeking damages under the DPA were discontinued, but as referred to above, the Prismall claim proceeded, pivoting to a MOPI claim. Now that this approach has also been rejected, it would not be a surprise to see claimants testing the limits and practicability of the bifurcated process.

3. Consistency with Commission Recovery Limited v Marks & Clerk LLP

We saw earlier this year in Commission Recovery Limited v Marks & Clerk LLP (see our article here) that it may be possible to meet the same interest test in a representative action. Williams J was keen to emphasise that her conclusions were not inconsistent with Knowles J in that case.

Conclusion

After Lloyd v Google, this was always going to be a challenging claim; not least given the obiter comments by the Supreme Court that a MOPI claim may not have been pursued in Lloyd because the view may have been taken in that case that it would require individualised assessment of damages. Mr Prismall and his funders in this case were evidently not deterred by this, instead taking the view that MOPI had been specifically carved out. This shows that potential claimants and funders will not give up with such data and privacy related claims. Indeed, we are aware of a number of further significant data-related claims in the pipeline. Watch this space.

Authors: Angus Rance, Jon Gale and Tim West