- Accueil
- Actualités et publications
- Publications
- Prismall v Google
- Sur cette page
7 février 2025
Disputes Quick Read – 102 de 101 Publications
Prismall v Google: Court of Appeal upholds strike out of representative action claim for misuse of private information
- Quick read
In its recent judgment in Prismall v Google UK Ltd and DeepMind Technologies Ltd [2024] EWCA Civ 1516, the Court of Appeal upheld the High Court's decision to strike out a representative action relating to misuse of private information. This case highlights the challenges that claimants face in satisfying the 'same interest' test which must be met when bringing a representative action under CPR 19.8.
Background
Mr Prismall had sought to bring a representative claim for damages for loss of control arising out of alleged misuse of private information on behalf of approximately 1.6 million people whose patient-identifiable medical records were transferred from the Royal Free London NHS Foundation Trust to Google and DeepMind between October 2015 and September 2017.
The data was used to develop an app called "Streams," designed to identify and treat acute kidney injury patients. However, Google and DeepMind also had rights to use the data for broader purposes beyond direct patient care, including to develop and prove capabilities to enhance future commercial prospects.
Mr Prismall needed to show that each member of the represented class had:
- A reasonable expectation of privacy in the relevant information (taking into account all the circumstances of the case and subject to a seriousness threshold).
- The 'same interest' in the claim.
This 'same interest' test has presented challenges for claimants seeking to bring representative actions in the context of data privacy claims which are likely to require an individualised assessment of damages.
One way in which claimants have sought to resolve this issue is by pursuing actions on the basis of there being a "lowest common denominator" claimant claiming an 'irreducible minimum harm' ie each member of the class seeks a uniform sum of damages based on the loss suffered by the "lowest common denominator claimant". This was the approach adopted by Mr Prismall.
High Court decision
In May 2023, the High Court struck out the claim at first instance finding that, in relation to the "lowest common denominator" claimant, the data in question was anodyne and/or already in the public domain, such that they did not have a realistic prospect of establishing a reasonable expectation of privacy.
Accordingly, the High Court found that the "lowest common denominator" claimant did not meet the threshold for bringing a claim for misuse of private information.
Court of Appeal decision
Mr Prismall appealed on several grounds, including arguing that the judge had erred in rejecting the submission that all patient-related information generated within the doctor-patient relationship inherently gives rise to a reasonable expectation of privacy, regardless of whether the information is already in the public domain.
The Court of Appeal ultimately upheld the High Court's decision, finding that, whilst the starting point was that there was normally a reasonable expectation of privacy for any patient identifiable information in medical notes, that was not always the end point. It was important here that the claim was framed as being for the tort of misuse of private information, which involves a threshold of seriousness. The Court of Appeal held that if patients choose to make private information public, the fact that the information is public, and the manner in which it has entered the public domain will inevitably form part of the relevant circumstances to be considered in determining whether the seriousness threshold has been met.
In this case, this meant that a claim for misuse of private information would not invariably succeed and accordingly the Court of Appeal agreed that the 'lowest common denominator' claimant did not meet threshold for bringing a claim.
Where do we go from here?
The Court of Appeal noted that it considered that a representative action claim for misuse of private information "is always going to be very difficult to bring" because relevant circumstances will affect whether there is a reasonable expectation of privacy for any particular claimant, which will itself affect whether all of the represented class have the 'same interest'.
Whilst the floodgates therefore currently remain shut for bringing representative actions in the context of data privacy claims, it remains to be seen whether adopting a bifurcated approach would overcome this. That would mean that common issues of fact and law could be determined on a representative basis, with issues requiring individual determination (whether relating to liability or damages) being dealt with at a later stage.
The Court of Appeal had approved such an approach in Commission Recovery Ltd v Marks & Clerk LLP & Long Acre Renewals (A firm) [2024] EWCA Civ 9, confirming that the case could proceed with common issues being determined on a representative basis, even if they did not lead to a conclusion on liability. The Court of Appeal did note that the class representative had not put forward any plan as to how the litigation would be taken to a point where there would be money judgments in favour of those who had opted in, but held that it was not for the Court to second-guess the claimant's decision that it was commercially worth its while to continue the litigation where it was not clearly a futile exercise.
The preliminary issues trial was due to take place in January 2025 and was expected to provide further useful guidance, although the case ultimately settled on confidential terms prior to trial. This does however remain an area to watch.
Dans cette série
Wirral Council v Indivior plc: Court of Appeal upholds strike out of opt-in representative action securities claim
30 January 2025
What are the litigation trends in 2025?
22 January 2025
par plusieurs auteurs
Changes to the privilege rules between companies and shareholders
6 December 2024
Victory for energy companies/defeat for the environment?
14 November 2024
par Tim Strong, Kate Hamblin
Failure to prevent fraud offence to come into force in September 2025
14 November 2024
par Emma Allen
Non-Disclosure Agreements - updated guidance from the SRA
8 November 2024
par Edward Spencer
Essex Cricket Club charged by Cricket Regulator
30 October 2024
par plusieurs auteurs
UK introduces mandatory reimbursement rules to combat APP fraud
15 October 2024
par Emma Allen, Andrew Spencer
Notice of Claim: What constitutes 'reasonable detail'?
5 July 2024
par Stuart Broom, Tom Charnley
New SFO Director announces bold plans to tackle fraud
21 March 2024
par Emma Allen, Amy Cheng
What are the litigation trends for 2024?
1 February 2024
par Katie Chandler, Emma Allen
ClientEarth v FCA: Challenging Regulator Decisions
12 February 2024
par Tim Strong, Nicole Baldev
First of its kind judicial guidance on the use of AI in the courts
14 December 2023
Witness familiarisation - does it affect the court's assessment of witness credibility?
13 December 2023
The use of AI in Trial Witness Statements post-PD 57AC
23 October 2023
par plusieurs auteurs
CAT to hear the first application for a collective settlement approval order
17 October 2023
Failure to prevent fraud – a new offence?
14 August 2023
par plusieurs auteurs
Supreme Court rules that APP fraud victims cannot rely on Quincecare Duty
4 August 2023
par plusieurs auteurs
The Law Commission's Consultation Process on the Arbitration Act 1996 – taking stock
21 July 2023
What does the latest decision of the CAT in the Mastercard/Visa proceedings mean for class actions?
10 July 2023
Disputes Quick Read: ClientEarth refused permission to pursue directors of Shell
1 June 2023
par plusieurs auteurs
Disputes Quick Read – developments in the fixed costs regime
3 May 2023
par James Bryden
Disputes Quick Read: Service by email – are the rules any clearer?
20 April 2023
par James Bryden
Disputes Quick Read: Breaking the north/south divide?
5 April 2023
par Tom Charnley
Disputes Quick Read - What do practitioners think about making alternative dispute resolution (ADR) compulsory?
8 March 2023
Disputes Quick Read: What are the litigation trends for 2023?
2 March 2023
par Katie Chandler, Emma Allen
Disputes Quick Read: further guidance on witness statement preparation rules
14 February 2023
Disputes Quick Read: A cautionary tale – settlement agreement (un)wittingly releases all claims for fraud
13 February 2023
Disputes Quick Read: Why the UK should join the Hague Judgments Convention 2019
8 February 2023
par Jessie Prynne
Disputes Quick Read: extensive information orders granted against crypto exchanges following hack
19 January 2023
par Georgina Jones
Disputes Quick Read: A new approach to giving evidence? WhatsApp with that?
3 October 2022
par Gemma Broughall
Disputes Quick Read: Ethereum Merge - what legal issues arise?
22 September 2022
par Ben Jones, Emma Allen
Disputes Quick Read: New obligations on cryptobusinesses to report under the UK sanctions regime
9 August 2022
par Nick Maday
Disputes Quick Read: Disclosure - What information can be redacted?
25 July 2022
par Edward Spencer
Disputes Quick Read: what claims exist when a smart contract is breached?
6 July 2022
par Emma Allen
Disputes Quick Read: New gateway for serving Norwich Pharmacal Orders and Bankers Trust orders out of the jurisdiction
Welcome news for those pursuing fraud claims in the English Courts
28 July 2022
Disputes Quick Read: Disclosure Pilot Scheme – here to stay
21 July 2022
par Edward Spencer
Disputes Quick Read: Defining the duty - the limits of the responsibility assumed by professionals
27 July 2022
par Stuart Broom
Disputes Quick Read: Climate change litigation – successful challenge to government's Net Zero Strategy
29 July 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Judicial Review and Courts Act 2022 – now in force
17 June 2022
par Stephanie High
Disputes Quick Read: an important reminder of the duty to disclose electronic documents in native format
13 June 2022
par Edward Spencer
Disputes Quick Read: ENRC prevails in claim against former solicitor
26 May 2022
Disputes Quick Read: Climate change litigation update – McGaughey v Universities Superannuation Scheme Limited
31 May 2022
par plusieurs auteurs
Don't lose your keys: Bitcoin developers do not have a duty to assist owners in recovering lost cryptocurrency
4 April 2022
Disputes Quick Read: The new witness statement preparation rules – a year on
5 April 2022
par Stephanie High
Disputes Quick Read: ClientEarth v Shell – climate change litigation shifts focus to UK companies
31 March 2022
par plusieurs auteurs
Disputes Quick Read: High Court rules that failure to provide adequate data security is not a positive act
21 September 2021
Disputes Quick Read: Key changes to the Disclosure Pilot Scheme
13 September 2021
par Edward Spencer
Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments
6 September 2021
par Stephanie High
Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?
2 August 2021
Disputes Quick Read: Freezing injunctions – maximum custodial sentence imposed for breach
21 July 2021
Disputes Quick Read: The online future of civil justice – the end of the legal profession or the end of legal drudgery?
15 July 2021
par Jess Thomas
Disputes Quick Read: Will the courts change forever post-COVID?
26 May 2021
par David de Ferrars
Disputes Quick Read: One Blackfriars administrators cleared of misfeasance
5 May 2021
par Stephen O'Grady
Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review
21 April 2021
par Stephanie High
Disputes Quick Read: Amendments to the Disclosure Pilot Scheme – a step in the right direction
31 March 2021
Disputes Quick Read: UK Supreme Court rules on the territorial extent of the SFO's powers
26 February 2021
par Tim Strong
Disputes Quick Read: No dropping anchor – parent company liability for environmental claims
24 February 2021
Disputes Quick Read: What lawyers need to know about new witness statement preparation rules
20 January 2021
par Stephanie High
Disputes Quick Read: Should you still choose the English courts to have jurisdiction in your international contracts after Brexit?
12 January 2021
par Tim Strong
Disputes Quick Read: Privilege lost in the EU post-Brexit (with exceptions)
23 November 2020
Disputes Quick Read: Law on interest applicable to US dollar awards reaffirmed
16 October 2020
Disputes Quick Read: Care required when drafting SPA claim notices
23 September 2020
Disputes Quick Read: Why the modernised LCIA rules are a welcome update
7 October 2020
par Nick Storrs
Disputes Quick Read: The importance of proper service
26 May 2020
par Edward Spencer
Disputes quick read: Mandatory changes to Statements of Truth
18 May 2020
par Katie Chandler
Disputes Quick Read: COVID-19 and supply chain disruption – key issues
9 April 2020
par plusieurs auteurs
Disputes Quick Read: High Court orders parties to explore options for 5-week remote trial
15 April 2020
Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms
27 April 2020
par plusieurs auteurs
Disputes Quick Read: UK's OFSI fines Standard Chartered Bank £20 million for sanctions breaches
21 April 2020
par Stephanie High
Disputes Quick Read: A different approach to witness evidence
11 March 2020
par James Bryden
Disputes Quick Read: Coronavirus - a growth in virtual courts?
17 March 2020
par Stuart Broom
Disputes quick read: climate change activism by litigation
26 February 2020
par Tim Strong, Andrew Howell
Disputes Quick Read: Commercial Court's arbitral power shift
21 February 2020
par Andrew Howell
Disputes Quick Read: Court stays evictions during COVID-19 – is this lawful?
2 June 2020
par Georgina Jones
Disputes Quick Read: Will the civil justice system change forever post COVID-19?
16 June 2020
par Georgina Jones
Disputes Quick Read: Privilege waiver warning
2 July 2020
par Tim Strong, Georgina Jones
Disputes Quick Read: Retailers reign supreme in Visa and Mastercard proceedings
9 July 2020
Disputes Quick Read: Scope of duty and the SAAMCo counterfactual following Manchester Building Society
3 December 2021
Disputes Quick Read: Facilitating transactions in cryptoassets - Lord Leggatt and the point of commercial law
24 November 2021
par Stuart Broom
Disputes Quick Read: Privy Council clarifies the law on freezing injunctions in aid of foreign proceedings
8 October 2021
par Katie Chandler
Disputes Quick Read: Climate change litigation – what's the latest?
10 January 2022
par Tim Strong, Jess Thomas
Disputes Quick Read: Court decisions on the Disclosure Pilot Scheme – the 2021 roundup
20 January 2022
Disputes Quick Read: Climate change litigation update
8 March 2022
par Jess Thomas, Lucy Waddicor
Disputes Quick Read: Assumption of responsibility - tax schemes and investors
22 March 2022
Disputes Quick Read: Dealing in crypto? Be careful what you call it
7 April 2022
par Emma Allen, Georgina Jones
Related Insights
Product liability and safety horizon scanning – what to look out for in 2025
par plusieurs auteurs
Wirral Council v Indivior plc: Court of Appeal upholds strike out of opt-in representative action securities claim
par Katie Chandler et Samantha Brendish
What are the litigation trends in 2025?
par plusieurs auteurs