Mr Andrew Prismall v Google UK Ltd

Hearing date: 22 October 2024

Approved Judgment

This judgment was handed down remotely at 13.30 hrs on 11.12.2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Dame Victoria Sharp, Lady Justice Nicola Davies and

Introduction and issues

This is the judgment of the court. The appellant Andrew Prismall is a representative claimant. Mr Prismall brought a representative action, pursuant to what is now Civil Procedure Rule ( CPR) 19.8, for the tort of misuse of private information against the respondents Google UK Limited (Google) and DeepMind Technologies Limited (DeepMind). The action was on behalf of Mr Prismall and a class of persons said to number approximately 1.6 million.

The claim is for damages in respect of both the one-off transfer by the Royal Free London NHS Foundation Trust (the Royal Free Trust) of data in October 2015, and the continuing transfer of data thereafter until 29 September 2017 pursuant to a live data feed. The data which was transferred took the form of patient-identifiable medical records held by the Royal Free Trust of patients, including Mr Prismall, who had attended hospitals in the Royal Free Trust or had blood tests processed by laboratories operated by the Royal Free Trust between 29 September 2010 and 29 September 2015. Google and DeepMind used the data for the purposes of developing an app called “Streams” which was intended to be used to identify and treat patients suffering from Acute Kidney Injury. Google and DeepMind also had, however, a contractual entitlement to use the data for purposes wider than direct patient care and to develop and prove capabilities to enhance future commercial prospects.

The representative claim by Mr Prismall was struck out by Mrs Justice Heather Williams (the judge) and summary judgment was entered for Google and DeepMind, for the reasons contained in a judgment dated 19 May 2023. That judgment followed a two day hearing before the judge on 21 and 22 March 2023.

This appeal raises the principal issue whether the judge was wrong to find that each member of the class of approximately 1.6 million people did “not have a realistic prospect of establishing a reasonable expectation of privacy in respect of their medical records or of crossing the de minimis threshold in relation to such an expectation” such that there was no realistic prospect of establishing misuse of private information of each member of the class, or a realistic prospect of establishing an entitlement to damages for loss of control.

There are two points that are fundamental to an understanding of the outcome of the case before the judge and of this appeal. First, that the need to show that each member of the class has a realistic prospect of establishing misuse of private information arises because CPR 19.8(1) requires the person bringing the claim, and those on whose behalf the claim is brought, to have “the same interest”. And secondly, that it was and remains common ground between the parties that, adopting the approach taken by the Supreme Court in Lloyd v Google LLC [2021] UKSC 50; [2022] AC 1217 ( Lloyd v Google) to representative actions, each member of the class of approximately 1.6 million persons whose patient records were transferred to Google and DeepMind has to have a realistic prospect of succeeding in their claim.

This agreed approach meant that both before the judge and this court, there has been a considerable investment of intellectual effort on both sides to ascertain the prospects of success for a claimant who was what the parties called “the lowest common denominator”, see para 145 of Lloyd v Google. The lowest common denominator is a notional claimant in the class of approximately 1.6 million persons whose claim represents the “irreducible minimum scenario” for a claimant in the class of persons.

The judge identified the irreducible minimum scenario for the “lowest common denominator” claimant in para 166 of the judgment. The judge concluded that such a claimant's claim would fail, and she therefore struck out the claim and granted summary judgment to Google and DeepMind. The judge did not permit Mr Prismall to amend his claim in the light of the judgment. That refusal to allow Mr Prismall an opportunity to amend is also challenged in the appeal.

It is important to record that the form of representative action pursued on behalf of Mr Prismall, and the basis on which it was struck out, means that this judgment is not about whether there are any valid claims that could be brought by patients whose medical records were transferred by the Royal Free Trust to Google and DeepMind. Indeed the submissions before us proceeded on the basis that, subject to issues of limitation, it was common ground that such claims might be brought and might succeed.

It should also be recorded that when transferring the data to Google and DeepMind no use was made by the Royal Free Trust of the mechanism provided for by section 251 of the National Health Service Act 2006. That mechanism provides for non-consensual lawful sharing of confidential medical information in specific circumstances. In this case none of the class members were aware of the transfer of data at the time that it took place, and their consent was not sought to the transfer of data.

Relevant factual background

The relevant factual background was taken by the judge from the Particulars of Claim, and witness statements made on behalf of Mr Prismall, Google and DeepMind, which were sworn in relation to the application for summary judgment. This summary is taken from the judge's judgment.

Mr Prismall, and the other members of the class, attended the hospitals in the Royal Free Trust, being the Royal Free, Chase Farm and Barnet hospitals, or had X-rays in the hospitals or had their blood tests processed at laboratories operated by the Royal Free Trust. Mr Prismall had extensive treatment at the Royal Free Hospital. He did not consent to his private medical information being collected, transferred, stored or used.

The Royal Free Trust made an Information Sharing Agreement with Google on 29 September 2015. The data to be transferred took the form of Health Level Seven (HL7) feeds. HL7 is an international standard for exchanging patient-identifiable electronic healthcare records. An electronic HL7 message was generated by the Royal Free Trust each time “an event” took place during a patient's visit. The HL7 messages which were included were: ADT, indicating admission or discharge; ORM, indicating a test or X-ray had been ordered; ORR, being an acknowledgement of the order; ORU, giving the results of an observation or test. Some HL7's included free text notes written by a clinician or other hospital employee. There are examples of HL7's in the materials before us.

The patient-identifiable medical records were then transferred in October 2015. Thereafter a data feed continued until 29 September 2017, at which point all patient identifiable data was to be transferred back to the Royal Free Trust and destroyed.

DeepMind undertook the design and development of the Streams app in the period July to November 2015. During these phases, synthetic data (meaning data made up for the test) was used. The data which had been transferred was then “normalised”, which meant put into a structure that could be viewed in the Streams app. During safety and effectiveness testing patient data was used. Google gave evidence through a witness statement that this involved the data of 200 to 300 patients. The judge accepted this figure in the judgment. Mr Pitt-Payne KC, on behalf of Mr Prismall, submitted that the data of 1.6 million patients was used, based on a reading of a letter dated 3 July 2017 from the Information Commissioner's Office (ICO). That letter had conveyed the ICO's conclusion that the processing by DeepMind of the personal data of approximately 1.6 million persons for the clinical safety testing of the Streams app did not fully comply with the Data Protection Act 1998 ( DPA 1998). Mr White KC, on behalf of Google and DeepMind, submitted that the ICO's letter was written in general terms and there was nothing to set against the witness statement filed on behalf of Google. It is not necessary to resolve this issue in order to determine whether the representative claim brought by Mr Prismall has a realistic prospect of success. This is because the issue does not affect the judge's reasons for finding that the claim by the lowest common denominator claimant did not have a real prospect of success.

In October 2015, Google and DeepMind applied to the NHS Research Ethics Committee for approval for a project entitled “using machine learning to improve prediction of acute kidney injury and general patient deterioration”. Approval was granted on 10 November 2015. This, according to the evidence from Google and DeepMind, related to a wider “Patient Rescue” project developed by DeepMind which was not pursued.

On 28 January 2016, DeepMind entered into a five year Memorandum of Understanding with the Royal Free...