Andrew Prismall v Google UK Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Heather Williams DBE |
| Judgment Date | 19 May 2023 |
| Neutral Citation | [2023] EWHC 1169 (KB) |
| Docket Number | Case No: QB-2022-001362 |
| Court | King's Bench Division |
and
[2023] EWHC 1169 (KB)
THE HONOURABLE Mrs Justice Heather Williams DBE
Case No: QB-2022-001362
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Timothy Pitt-Payne KC, Mr Gerard Rothschild and Mr Stephen Kosmin (instructed by Mischon de Reya LLP) for the Representative Claimant
Mr Antony White KC and Mr Edward Craven (instructed by Pinsent Masons LLP) for the Defendants
Hearing dates: 21 and 22 March 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Acting as the Representative Claimant, Andrew Prismall relies upon what is now CPR 19.8(1) to bring a representative claim for damages in the tort of misuse of private information (“MOPI”) on behalf of a class said to number approximately 1.6 million people. The Defendants are Google UK Limited and DeepMind Technologies Limited. DeepMind is part of the Google group of companies and no distinction is drawn between the Defendants' respective roles at this stage of the litigation.
The claim arises from the transfer of certain patient-identifiable medical records held by the Royal Free London NHS Foundation Trust and its predecessors (collectively, the “Royal Free”) to the Second Defendant. A one-off transfer of historical data took place in October 2015 and a live data feed was established at around the same time in respect of subsequent medical records. DeepMind was involved in the development and operation of an app known as Streams; a clinical system designed to assist clinicians at the Royal Free to identify and treat patients potentially suffering from acute kidney injury (“AKI”). The app was registered with The Medicines and Healthcare Products Regulatory Agency (“MHRA”) in August 2016 and became operational in February 2017.
As confirmed during the hearing, the claim does not concern the use of patient data on Streams in treating patients in the period from February 2017. Mr Pitt-Payne KC clarified that the claim related to the Defendants' wrongful interference with patient information in the following respects:
i) Obtaining patient-identifiable medical records in a context where they had a contractual entitlement to use them for purposes wider than direct patient care and/or wider than the Royal Free's Streams project;
ii) Storing the medical records in such circumstances prior to Streams becoming operational;
iii) Using the medical records in the research and development of the Streams app; and/or
iv) Developing and/or proving their general capabilities by use of the medical records with a view to enhancing their future commercial prospects.
The claim is set out in particulars of claim dated 23 July 2022. No defence has been filed at this stage. The claim is for loss of control damages only.
By application notice dated 24 October 2022, the Defendants applied to strike out the claim under CPR 3.4(2)(a) on the basis that the claim form and particulars of claim disclose no reasonable grounds for bringing the claim; and/or for summary judgment pursuant to CPR 24.2 on the basis that the representative claim has no real prospect of succeeding and there is no other compelling reason why the case should be disposed of at a trial. The application is resisted by the Representative Claimant.
CPR 19.8(1) provides that where more than one person has “the same interest” in a claim it may be begun by one or more of the persons “who have the same interest as representatives of any other persons who have that interest”. The class represented by Mr Prismall (“the Claimant Class”) is currently identified as follows:
“…all individuals domiciled in England and Wales as at the date of issue of this Claim Form, or their UK-domiciled personal representatives or UK-domiciled administrators of their estates or the Public Trustee as appropriate, who:
1. Presented for treatment at any hospital, clinic or other medical service provider within the Royal Free London NHS Foundation Trust (and its predecessors) between 29 September 2010 and 29 September 2015; and/or
2. Were included in the Royal Free London NHS Foundation Trust's existing radiology electronic patient record system as at 29 September 2015; and/or
3. Were included in the data relating to blood tests on blood samples from GP clinics that was stored by the Royal Free London NHS Foundation Trust amongst its biochemistry data between 29 September 2010 and 29 September 2015; and
whose patient-identifiable medical records (whether partial or complete) were included in the approximately 1.6 million patient records that were collected and/or received and/or stored and/or held and/or used by the Defendants or either of them during the period from 29 September 2015 to the date of issue of this Claim Form…whether in the context of the development of the ‘Streams’ application regarding acute kidney injury or otherwise…”
The issues between the parties narrowed during the course of their oral submissions. In pre-hearing written submissions the Defendants emphasised the wide variety of circumstances of those in the Claimant Class, contending that the compensatory principle required an individualised assessment of their entitlement to damages, which took into account their differing individual circumstances and that this was fundamentally inconsistent with pursuit of the claims via a representative action. However, during the hearing, Mr Pitt-Payne KC accepted that recovery of individualised damages for any member of the Claimant Class could not be pursued via the CPR 19.8(1) representative action and that the current claim was confined to seeking what have been referred to as “lowest common denominator damages” for each member of the class, that is to say compensation calculated by reference to the irreducible minimum harm suffered by all members of the class. He indicated that any class member who wished to seek additional compensation would have to opt out of the class and bring their own claim.
In summary (and taking account of the Representative Claimant's revised position), the grounds of the Defendants' application, as advanced by Mr White, KC were as follows:
i) The circumstances of the class members are so varied that the Claimant has no real prospect of establishing that the Defendants committed the MOPI tort against all members of the Representative Claimant Class; and that as some members of the class do not have a viable claim this was fatal, as it means that not all members have the “same interest” within the meaning of CPR 19.8; and in any event
ii) Even if a lowest common denominator approach is permissible in principle (which was not accepted) it does not avail the Representative Claimant. As in Lloyd v Google LLC [2022] AC 1217 (“ Lloyd”), the Representative Claimant is unable to circumvent the requirement for individualised assessment by relying on the lowest common denominator approach, since it cannot be said of any individual in the Claimant Class that they have a viable claim for more than trivial damages. Accordingly, the claim was not viable as a representative action pursuant to CPR 19.8.
In response, Mr Pitt-Payne KC's position on behalf of the Representative Claimant by the time of his oral submissions was as follows:
i) He accepted that it was necessary for there to be a realistic prospect of establishing the ingredients of the cause of action (a reasonable expectation of privacy and an unlawful interference) across the members of the class. However, he said that in this instance all of the Claimant Class did have a viable MOPI claim, which was more than de minimis, in respect of one or more of the four alleged forms of unlawful interference summarised in para 3 above. Furthermore, Lloyd established that if there may be a defence to the claims of some, but not all, members of the class, then this did not preclude the “same interest” test from being satisfied, provided there was no conflict of interest;
ii) Although he accepted that the lowest common denominator way of putting the case would not be viable if the damages for some members of the class would be zero or no more than nominal, all of the Claimant Class had a claim for non-trivial damages; alternatively
iii) If the Court concluded that not all members of the Claimant Class had a realistic prospect of establishing a MOPI claim for more than nominal damages, then an opportunity should be afforded to re-formulate a narrowed version of the Claimant Class, rather than the action being struck out or judgment given for the Defendants.
Mr White KC opposed the latter course, pointing out that the Representative Claimant had not produced a proposed amendment and it was not for the Court to speculate as to its possible content. He also said that the circumstances involved too many variables for the difficulties he identified to be overcome by the removal of a specific category of individuals from the Claimant Class.
The Defendants' application was supported by witness statements from David Barker, a partner in Pinsent Masons LLP, dated 21 October 2022 (“Barker 1”); and from Dr Cían Hughes, a medical doctor who is currently Informatics Lead at Google Ireland Limited and who was previously employed by the First Defendant and played a central role in the development of Streams, dated 21 October 2022 (“Hughes 1”) and 13 February 2023 (“Hughes 2”). The Representative Claimant relies upon the witness statement of Benjamin Lasserson, a partner in Mishcon de Reya LLP, dated 10 January 2023 (“Lasserson 1”).
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