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You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Prismall v Google UK Ltd & Anor [2023] EWHC 1169 (KB) (19 May 2023) URL: https://www.bailii.org/ew/cases/EWHC/KB/2023/1169.html Cite as: [2023] WLR(D) 242, [2024] 1 WLR 879, [2024] WLR 879, [2023] EWHC 1169 (KB) |
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KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
ANDREW PRISMALL | Representative Claimant |
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| - and – |
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(1) GOOGLE UK LIMITED(2) DEEPMIND TECHNOLOGIES LIMITED |
Defendants |
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| - and – |
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| LCM FUNDING UK LIMITED |
Interested Party |
____________________
Mr Antony White KC and Mr Edward Craven (instructed by Pinsent Masons LLP) for the Defendants
Hearing dates: 21 and 22 March 2023
____________________
VERSION
OF APPROVED JUDGMENT
Crown Copyright ©
Mrs Justice Heather Williams DBE:
Introduction
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.
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.
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..."
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.
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.
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.
variables
for the difficulties he identified to be overcome by the removal of a specific category of individuals from the Claimant Class.
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").
- The proceedings and the particulars of claim: paras 15 - 23;
- The relevant events: paras 24 - 58;
- The legal principles: paras 59 - 116;
- The Claimant Class and reasonable expectation of privacy: paras 117 - 169;
- The Claimant Class and unlawful interference: paras 170 - 172;
- The Claimant Class and loss of control damages: paras 173 - 178;
- No other compelling reason for the claim to proceed: paras 179 - 180;
- Should an opportunity be given to amend the pleading: paras 181 - 185;
- Summary of conclusions: paras 186 - 188.
The proceedings and the particulars of claim
"13. At all relevant times, the Representative Claimant and the Claimant Class had a reasonable expectation of privacy in respect of the information in issue (i.e. identifiable and confidential medical information). In particular, that unless express consent had first been obtained from a patient, identifiable and confidential medical information of that patient would only be shared for the purposes of the direct care of that patient.
14. Direct care of a patient is limited to activities that directly contribute to the diagnosis, care and treatment of the patient."
"18 ...the Data Transfer was effected without the knowledge or consent of any of the Claimant Class. Further, the purpose of the Data Transfer as at the date that it occurred was not to provide direct care. Rather the Data Transfer was intended at least to facilitate the development of the Streams application, in anticipation of the Streams application thereafter being used, inter alia, to alert medical staff to patients at risk of deterioration and death through kidney failure."
"the loss of control over their private information is common across the entire Claimant Class such that the Representative Claimant and each other member of the Claimant Class accordingly have the same interest for the purposes of loss of control damages".
The relevant events
various
aspects of these events. I will summarise the salient chronology. In doing so I will identify the relatively limited instances where a factual dispute has been flagged. For the avoidance of doubt, save to the extent that I indicate during the course of this judgment, I have not sought to resolve such disputes at this stage.
The Information Sharing Agreement and the Data Transfer
view
to DeepMind producing a new system with a similar purpose.
"Patient Rescue is a Proof of Concept Technology Platform that enables Analytics as a Service for NHS Hospital Trusts. It has been developed by DeepMind, a group withinUK Ltd.
Analyses are performed on both live and batch (intermittent) data streams. Outputs include tools to enhance adherence to, and implementation of, NHS / NICE guidelines. This will consist of: (i) Patient Safety Alerts for Acute Kidney Injury; and (ii) Real time clinical analytics, detection, diagnosis and decision support to support treatment and avert clinical deterioration across a range of diagnoses and organ systems."
visit
to and treatment at one of their hospitals. The first message would relate to the person's admittance into hospital and subsequent messages would relate, for example, to tests and treatment that they underwent. A further HL7 message would relate to their discharge. Each HL7 could contain demographic information such as the patient's name, date of birth, address, contact details, sex and ethnic origin, although it might well not contain all of this material. Each message would indicate the subject matter of the event by reference to a code. Many HL7 messages were not included within the agreement (or within Streams). The categories of messages included were:
i) ADT: This denotes a message that a patient has been admitted or discharged from or transferred between locations at the Royal Free;
ii) ORM: This denotes a message that a clinician has ordered a test such as a laboratory test or an X-Ray;
iii) ORR: This would denote that an order such as the above had been acknowledged;
iv) ORU: This denotes a message relating to the results of an observation or test. The ISA referred to ORU concerning pathology and radiology.
ORM and ORU messages typically included details of the observations or results that they related to. In some instances free text notes written by a clinician or other hospital employee would also be included.
via
codes produced by clinical coders following review of clinicians' hard copy notes. The data solely consisted of a unique numeric identifier for each patient and the relevant codes.
via
an encrypted channel. Clause 5 also permitted transferred data to be anonymised by the First Defendant for research under formal research ethics; and provided that data to be processed for purposes other than direct care for the patient was to be pseudonymised.
varied
significantly. For present purposes, the Royal Free consisted of three hospitals: the Royal Free Hospital in Hampstead, Barnet Hospital and Chase Farm Hospital in Enfield. The latter two hospitals became part of the Royal Free in 2014. The amount of historical patient data in a usable form
varied
between the hospitals. For example, Dr Hughes says that up to four years of historical biochemistry data concerning blood test results and non-biochemistry data such as radiology reports was transferred from the Royal Free Hospital in Hampstead, but only one year of laboratory data and almost no historical non-laboratory data was transferred from Chase Farm Hospital.
VPN
running over the NHS's secure network. DeepMind rented secure cages in a third party run UK-based high security data centre for the purposes of storing the servers that were used and access to the servers was limited to a small number of DeepMind personnel. The data was held separately from other data processed by the Defendants. The figure of 1.6 million patients which I mentioned earlier in relation to the Data Transfer appears in correspondence with the Royal Free from the Information Commissioner's Office ("ICO"); the Defendants have not disputed this figure, albeit both parties emphasise that the total figure cannot be calculated precisely at this stage.
Development and testing of the Streams app
very
long to get Streams into live operation, but in the event it took longer than expected.
"...In the UK 1 in 5 emergency admissions into hospital are associated with AKI, with up to 100,000 deaths each year in hospital associated with acute kidney injury. Up to 30% could be prevented with the right care. For this reason the Dept of Health have said that an automated system ('national algorithm') must be put in place to alert doctors to cases of AKI.
By combining real-time and historic electronic data that hospitals store about their patients (such as laboratory information), DeepMind have created a system which generates such alerts at the Royal Free London NHS Trust. However, it appears that the national algorithm can miss cases of AKI, can misclassify their severity, and can label some as having AKI when they don't. The problem is not with the tool which DeepMind have made, but with the algorithm itself.
We think we can overcome these problems, and create a system which works better."
The Committee granted approval on 10 November 2015. The Defendants' position is that this approval related to the wider Patient Rescue project which, in the event, was not pursued. They also emphasise the indication on their application form that any patient data would be anonymised or pseudonymised prior to use.
i) Pre-deployment testing was carried out in-house by DeepMind for the purpose of testing the functionality of the app. No actual patient data was used at this stage. DeepMind created a system which automatically generated records for thousands of fictitious patients; and
ii) This was followed by a system integration testing phase, undertaken in conjunction with Biochemistry and IT staff at the Royal Free, in order to check that the live system would produce AKI alerts in the correct circumstances. No real patient data was used and the tests were carried out by connecting the Streams app to a live data feed that provided made-up patient records.
viewed
in the Streams app. Dr Hughes indicates that this was an automated process that was carried out by DeepMind without any human access to the messages pre- or post-normalisation. The data was stored within the Streams database ready to be used in connection with the AKI detection and alerting process.
various
windows during the period December 2015 – December 2016. The purpose of this testing was to ensure that there were no particular issues with the Royal Free's systems which had not been identified and resolved during the earlier phases of testing. A "side-by-side" comparison was undertaken between a clinician identifying AKI through routine clinical practice and the outcome generated by the pre-release
version
of Streams. By its nature, this phase of testing did involve the use of real patients' data. Dr Hughes says that it only concerned patients who were being treated by the renal team during the relevant periods and he estimates that the data of roughly 200 – 300 patients would have been involved. He says that this was the only processing of identifiable patient data that occurred during the testing of Streams.
via
Streams during this phase.
The Memorandum of Understanding
"The Parties would like to form a strategic partnership exploring the intersection of technology and healthcare ... a wide-ranging collaborative relationship for the purposes of advancing knowledge in the fields of engineering and life and medical sciences through research and associated enterprise activities."
"DeepMind wishes to position the Trust as an 'Anchor Partner' ... Generally, this means that [the Royal Free] will be a key development site for future projects..."
The Streams app
viewing
the data in question. Dr Hughes says that in his recollection bug reports were submitted infrequently, probably less than once a month on average, so that only a tiny proportion of patients' data was
viewed
in these circumstances. In addition, updates to the Streams app were deployed on instruction from the Royal Free from time to time. This would involve an authorised DeepMind individual conducting a side-by-side comparison of the old and new
version,
viewing
a small sample of patient data of approximately 10 – 15 patients for each update.
via
the use of Streams. He says that statistical data produced by the app indicates that it provided an estimated 52,000 AKI alerts.
The Information Commissioner's investigation
ve
learned". It included the following:
"... In our determination to achieve quick impact when this work started in 2015, we underestimated the complexity of the NHS and of the rules around patient data ... We were almost exclusively focused on building tools that nurses and doctors wanted, and thought of our work as technology for clinicians rather than something that needed to be accountable to and shaped by patients, the public and the NHS as a whole. We got that wrong, and we need to do better."
The legal principles
Strike out and summary judgment
"(2) The court may strike out a statement of case if it appears to the court-
(a) that the statement of case discloses no reasonable grounds for bringing or defending the claim;
...."
v
Maran (UK) Limited [2021] EWCA Civ 326 ("Begum") per Coulson LJ at paras 20 - 21. In para 22(a) he described the applicable test as follows:
"The court must consider whether the claimant has a 'realistic' as opposed to a 'fanciful' prospect of success: Swainv
Hillman [2001] 1 All ER 91. A realistic claim is one that carries some degree of conviction: ED & F Man Liquid Products Ltd
v
Patel [2003] EWCA Civ 472. But that should not be carried too far: in essence, the court is determining whether or not the claim is 'bound to fail': Altimo Holdings
v
Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804 at [80] and [82]."
v
Opal Telecom Ltd [2009] EWHC 339 (Ch) as follows:
"iii) In reaching its conclusion the court must not conduct a 'mini-trial': Swainv
Hillman;
iv) This does not mean that the court must take at facevalue
and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products Ltd
v
Patel at [10];
v)
However, in reaching its conclusion the court must take into account not only the evidence actually placed before it but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust
v
Hammond (No 5) [2001] EWCA Civ 550;
vi)
Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision…where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to the trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd
v
Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii)
…if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it…If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd
v
TTE Training Ltd [2007] EWCA Civ 725."
v
Youg [2011] EWHC 1781 (QB); see also Duchess of Sussex
v
Associated Newspapers Ltd [2020] EWHC 1058 (Ch), [2020] EMLR 21 at para 33(2). When the Court strikes out particulars of claim, it will often be appropriate to make an order dismissing the claim or giving judgment upon it, but the Court may instead give further directions, as discussed at para 3.4.22 of the White Book.
Misuse of private information
General principles
v
Ash [2006] EWCA Civ 1714, [2008] QB 73 at para 11; ZXC
v
Bloomberg LP [2022] UKSC 5, [2022] AC 1158 ("Bloomberg") at para 26.
v
Express Newspapers plc [2008] EWCA Civ 446, [2009] Ch 481 at para 36 ("the Murray factors"), as follows:
"(1) the attributes of the claimant; (2) the nature of the activity in which the claimant was engaged; (3) the place at which it was happening; (4) the nature and purpose of the intrusion; (5) the absence of consent and whether it was known or could be inferred; (6) the effect on the claimant; and (7) the circumstances in which and the purposes for which the information came into the hands of the publisher."
v
Coward [2011] EWCA Civ 409, [2011] EMLR 21 that: "Just because information relates to a person's family and private life, it will not automatically be protected by the courts: for instance the information may be of slight significance, generally expressed or anodyne in nature". See also Bloomberg at para 55.
Medical information
v
Finland (1998) 25 EHRR 371 the ECtHR said that in determining whether the interference was "necessary in a democratic society":
"95. ... the Court will take into account that the protection of personal data, not least medical data, is of fundamental importance to a person's enjoyment of his or her right to respect for private and family life ... Respecting the confidentiality of health data is avital
principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general.
Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community."
v
MGN Ltd [2004] UKHL 22, [2004] 2 AC 457 ("Campbell") Baroness Hale observed:
"157. ... Not every statement about a person's health will carry the badge of confidentiality or risk doing harm to that person's physical or moral integrity. The privacy interest in the fact that a public figure has a cold or a broken leg is unlikely to be strong enough to justify restricting the press's freedom to report it. What harm could it possibly do?"
v
B [2005] EWHC 1651 (QB), [2005] EMLR 36 at para 33; and by Warby J (as he then was) in NT1 and NT2
v
Google
LLC [2018] EWHC 799 (QB), [2019] QB 344 at para 145. In ZC
v
Royal Free London NHS Foundation Trust [2019] EWHC 2040 (QB) ("ZC") Julian Knowles J said:
"170. The context is all important. I accept that the mere fact of having hospital or other treatment (without anything more) may itself be private information, for example, if someone has attended a clinic from which the nature of their illness can be readily inferred. But everything depends on the circumstances. I entertain doubts that the mere fact of a person's attendance at an A&E department would, without more, constitute private information."
very
particular facts of ZC that there was no reasonable expectation of privacy in relation to the Claimant's use of several false names when seeking treatment or in the mere fact of her attendance at hospital given she had chosen to make this public in launching a private prosecution against one of the doctors (paras 169 - 170).
v
Bounty UK Ltd [2022] EWHC 888 (QB), [2022] ECC 22 ("Underwood") Nicklin J dismissed a MOPI claim brought against the Second Defendant, an NHS Trust, on the basis that there had been no "misuse" by the Trust of the Claimants' private information. (The First Defendant was in administration and did not participate in the proceedings.) The First Claimant had given birth to her son, the Second Claimant, at one of the Trust's hospitals. Pursuant to a contractual arrangement between the Trust and Bounty, the First Defendant was given access to expectant mothers and to the parents of new-borns on the Trust's premises. Whilst she was on the ward shortly after giving birth, the First Claimant was approached by a Bounty representative who was pitching its photography services. The representative looked at paperwork that was in a holder at the end of the bed and thereby obtained some limited information (paras 37 and 38). The Judge held that the sheer fact that the Trust had permitted the Bounty representative to have access to the Claimants was insufficient to amount to "misuse" in circumstances where the information was obtained without the Trust's involvement, consent or knowledge (para 52). However, Nicklin J also went on to observe:
"53. ... even if the Claimants had established that the Second Defendant was liable under the MPI tort for Bounty acquiring information about them, the information so obtained was trivial. Discounting information that the First Claimant had already provided ... this amounted only to the name, gender and date of birth of the Second Claimant. To be actionable for misuse of personal information, the information misuse must reach a level of seriousness before the tort is engaged. Had the claim not failed for other reasons, it would have failed on this ground."
v
MGN Ltd [2015] EWHC 1482 (Ch), [2016] FSR 12 ("Gulati") Mann J said at para 229:
"(i) ... certain types of information are likely to be more significant than others. Thus medical information is more likely to be high in the ranks of information expected to be private, so its interception and disclosure is likely to attract a higher, rather than a lower, figure. That information can relate to matters of mental health as well as physical health ... However, even that kind of information has a range – not all medical-related disclosures will be treated equally seriously. It depends on the nature of the information."
In dismissing the subsequent appeal, the Court of Appeal approved para 229 of Mann J's judgment (save with one qualification that is not relevant for present purposes): [2015] EWCA Civ 1291, [2017] QB 149 at para 74.
viable
MOPI claim.
"... 'direct care' refers to activities that directly contribute to the diagnosis, care and treatment of an individual. The direct care team is made up of those health and social care, professionals who provide direct care to the patient and others, such as administrative staff, who directly support that care."
"Misuse" of information
v
DSG Retail Ltd [2021] EWHC 2168 (QB), [2022] 1 All ER 1191, Saini J at para 27; see also Underwood at para 75 above.
v
Tchenguiz [2010] EWCA Civ 908, [2011] Fam 1116 at para 68 (in the context of breach of confidence). Storing information can also be a form of misuse: Amann
v
Switzerland (2000) 30 EHRR 843 at para 69, where the ECtHR found that the Public Prosecutor's creation and storing of a card containing data relating to the Applicant's private life amounted to an interference with the right to respect for his private life (para 70).
Damages for loss of control
"45 ... In my judgment, the judge was correct to conclude that the power of the court to grant general damages was not limited to distress and could be exercised to compensate the claimants also for misuse of their private information. The essential principle is that, by misusing their private information, MGN deprived the claimants of their right to control the use of private information...The claimants are entitled to be compensated for that loss of control of information as well as for any distress, though the amount of compensation may be affected if the information would on the facts have become public knowledge anyway...The scale of the disclosure is a matter which goes to the assessment of the remedy, not to its availability."
v
Price [2020] EWHC 594 (QB), where the Judge said:
"51 ... in misuse of private information and data protection claims, damages may be awarded for loss of autonomy or loss of control; the nature of the information disclosed and the degree of loss of control should bear on this aspect of the court's assessment of damages – the more intimate the information and the more extensive the disclosure, the greater the award."
vein,
at first instance in Lloyd, Warby J said:
"74. ...I do not believe that the authorities show that a person whose information has been acquired or used without consent invariably suffers compensatable harm, either byvirtue
of the wrong itself, or the interference with autonomy that it involves..."
He went on to give examples of where an individual would not suffer from "loss of control" in the same way as someone who objects to use being made of their information.
viable,
more than de minimis claim for loss of control damages.
Representative actions
"(1) Where more than one person has the same interest in a claim-
(a) the claim may be begun; or
(b) the court may order that the claim be continued,
by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest.
...
(4) Unless the court otherwise directs any judgment or order given in a claim in which a party is acting as a representative under this rule-
(a) is binding on all persons represented in the claim; but
(b) may only be enforced by or against a person who is not a party to the claim with the permission of the court."
The decision in Lloyd
viable
representative action because:
i) "Damage", which must be shown for a claim under section 13 DPA 1998, was limited to material damage, in the sense of financial loss, physical or psychological injury and/or distress. Accordingly, it was necessary to individually prove that such "damage" had been suffered by each of the members of the class (paras 113, 115, 117, 118, 123, 124 and 130 - 135) ("the first conclusion"); and
ii) In any event, even without that hurdle, it would still be necessary to establish the extent of the unlawful processing in an individual case in order to determine what, if any, damages should be awarded (para 144). In so far as the Claimant sought to overcome this difficulty by confining the claim to a lowest common denominator level of damages, "the fundamental problem is that, if no individual circumstances are taken into account, the facts alleged are insufficient to establish that any individual member of the represented class is entitled to damages" (emphasis added) (para 147). The Claimant's position was that membership of the defined class was sufficient in itself to establish liability (paras 148 - 151). Accordingly, the issue was "whether membership of the represented class is sufficient by itself to entitle an individual to compensation, without proof of any further facts particular to that individual" (para 152). There was a threshold of seriousness to be crossed before a breach of the DPA 1998 gave rise to an entitlement to compensation under section 13; and the facts which the Claimant aimed to prove were insufficient to surmount that threshold, as they did not establish any unlawful processing of the individual's data beyond the bare minimum required to bring that person within the represented class (para 153) ("the second conclusion").
Collective redress
via
a group litigation order made under CPR 19.11, but this had the drawback of being an "opt in" procedure. This was a potentially effective way of litigating claims of sufficiently high
value,
but it was uneconomic for claims which were individually only worth a few hundred pounds each and tended to involve a relatively small proportion of those eligible to join (paras 25 - 28). Lord Leggatt contrasted this position with collective proceedings under the CA 1998, which could be brought on either an "opt out" or an "opt in" basis and enabled liability to be established and damages recovered without the need to prove that members of the class have individually suffered loss (paras 30 - 32).
very
simplicity was in some respects a strength (para 68).
The "same interest" requirement
v
Shell [2021] EWCA Civ 1389, [2022] 2 All ER 1056 at para 51(j). However, the contrary
view
was expressed by Lord Leggatt in Lloyd. He said:
"72 As Professor Adrian Zuckerman has observed in hisvaluable
book on civil procedure, however, a distinction needs to be drawn between cases where there are conflicting interests between class members and cases where there are merely divergent interests, in that an issue arises or may well arise in relation to the claims of (or against) some class members but not others. So long as advancing the case of class members affected by the issue would not prejudice the position of others, there is no reason in principle why all should not be represented by the same person: see Zuckerman on Civil Procedure: Principles of Practice, 4th ed (2021), para 13.49. As Professor Zuckerman also points out, concerns which may once have existed about whether the representative party could be relied on to pursue
vigorously
lines of argument not directly applicable to their individual case are misplaced in the modern context, where the reality is that proceedings brought to seek collective redress are not normally conducted and controlled by the nominated representative, but rather are typically driven and funded by lawyers or commercial litigation funders with the representative party merely acting as a figurehead. In these circumstances, there is no reason why a representative party cannot properly represent the interests of members of the class, provided there is no true conflict between them.
73. This purposive and pragmatic interpretation of the requirement is exemplified by The Irish Rowan [1991] 2 QB 206, where Staughton LJ, at pp 227-228, noted that some of the insurers might wish to resist the claim on a ground that was not available to others. He rightly did not regard that circumstance as showing that all the insurers did not have "the same interests" in the action, or that it was not within the rule, and had "no qualms about a proceeding which allows that ground to be argued on their behalf by others".
74. Even if it were considered inconsistent with the "same interest" requirement, or otherwise inappropriate, for a single person to represent two groups of people in relation to whom different issues arise although there is no conflict of interest between them, any procedural objection could be overcome by bringing two (or more) representative claims, each with a separate representative claimant or defendant, and combining them in the same action."
very
clear thrust of the passage that I have cited is that the existence of a defence that applies to only some members of the class will not preclude the "same interest" test from being met, provided there is no conflict of interest. Accordingly, I agree with Mr Pitt-Payne KC's submission to that effect (para 9(i) above). Mr White KC said that the Court's second conclusion was inconsistent with this proposition. I do not agree. There is a distinction between a situation where it is apparent that a potential defence is available in relation to a subset of the members of the class and one where it is simply not possible to ascertain from the way the case is put whether any given member of the class has a
viable
claim or not, which was the basis of the second conclusion, as I have summarised at para 92 above.
Google
of personal data was alleged to have occurred in the case of each member of the class (para 148). He proceeded to note (at paras 148 - 149 and 151) that the only fact which the Claimant proposed to prove to show that
Google
acted unlawfully in each individual case was the person's membership of the class (it being acknowledged that any additional facts would
vary
between the individuals). To fall within the class definition it had to be shown that the individual concerned had an iPhone of the appropriate model running a relevant
version
of the Apple Safari internet browser, which on a date during the relevant period, whilst present in England and Wales, they had used to access a website that was participating in
Google's
DoubleClick advertising services (para 150). Accordingly, the class would include those who had clicked on a relevant website on a single occasion and had received no targeted advertisements as a result (para 151). These facts alone were insufficient to surmount the seriousness threshold which admittedly applied to the DPA 1998 claim, as it was impossible to characterise such damage as more than trivial: "Without proof of some unlawful processing of an individual's personal data beyond the bare minimum required to bring them within the definition of the represented class, a claim on behalf of that individual has no prospect of meeting the threshold for an award of damages" (para 153).
viable
claim, including that they have a realistic prospect of establishing a reasonable expectation of privacy, then the "same interest" requirement is not met (para 9(i) above).
view
I have expressed in relation to circumstances where some of the class have a potential defence appears to be consistent with the approach taken by Robin Knowles J in Commission Recovery Limited
v
Marks & Clerk LLP [2023] EWHC 398 (Comm) ("Marks"). The case involved a claim relating to undisclosed commissions received by the Defendants for renewal applications for patents, trademarks and registered designs. The First Defendant was a firm of patent and trademark attorneys. The Claimant acted as a representative under CPR 19.6 for current and former clients of the First Defendant with commission-related claims. The application to strike out the claim was unsuccessful. The Defendants said that whilst the claims gave rise to common issues, they were not sufficiently similar to each other for a number of reasons identified at paras 53 - 55. Rejecting this argument, Robin Knowles J observed that what mattered, "in particular is whether the points involve class members affected by an issue prejudicing the position of others" (para 56). He held that there was no conflict of interest in the sense that success or recovery by one client would prejudice the interests of another (para 59). Further, the fact that there may be a limitation defence in respect of some of the class did not give rise to a conflict (para 61). The Judge acknowledged that it would be necessary to place reliance on the representative party and its lawyers to pursue
vigorously
lines of argument that were not directly applicable to the Claimant's individual case (para 63). Nonetheless the "same interest" requirement was met; and the matters raised by the Defendants would inform the exercise of the Court's discretion (para 64).
The Court's discretion
No requirement of consent
Google
at that stage of the litigation, Lord Leggatt acknowledged the practical difficulties of distributing damages recovered in a representative action to the members of the class. He noted that in the case before him "questions of considerable difficulty" would arise in this regard if the Claimant was awarded damages in a representative capacity, including whether there would be any legal basis for paying part of the damages to the litigation funders without the consent of each individual entitled to them (para 83).
The class definition
v
British Airways plc [2010] EWCA Civ 1284, [2011] Ch 345, membership of the class should not depend on the outcome of the litigation (para 78).
Claiming damages in a representative action
"80. ... The potential for claiming damages in a representative action is, however, limited by the nature of the remedy of damages at common law. What limits the scope for claiming damages in representative proceedings is the compensatory principle on which damages for a civil wrong are awarded with the object of putting the claimant – as an individual – in the same position, as best money can do it, as if the wrong had not occurred. In the ordinary course, this necessitates an individualised assessment which raises no common issue and cannot fairly or effectively be carried out without the participation in the proceedings of the individuals concerned. A representative action is therefore not a suitablevehicle
for such an exercise."
value
by the same amount. (A further example of where the entitlement could be calculated on a basis common to all class members was the claims for secret commissions in Marks (para 71)). Lord Leggatt noted that the difficulty would be avoided where damages were claimed on a global "top down" basis. However, damages in Lloyd were claimed on the "bottom up" approach of assessing a sum which each member of the class was individually entitled to recover (paras 82 and 86). It is accepted that "bottom up" damages are also claimed in the present case.
very
little relevant internet activity. The ordinary application of the compensatory principle would thus result in differing awards of compensation, depending upon the individuals' circumstances (paras 87 and 88). Lord Leggatt indicated that the Claimant sought to overcome this difficulty by limiting the claim to uniform per capita damages for loss of control for each member of the class, which did not require particular facts to be proved in relation to any individual member (para 88). This was described as a claim for the "irreducible minimum harm" suffered by every member of the class and as a "lowest common denominator" basis. As I have already indicated, an analogous approach is taken by the Representative Claimant in the present case.
Google's
"in principle" objection to this approach; that Mr Lloyd, as the self-appointed representative of the class, had no authority from any individual class member to waive or abandon what might be the major part of their damages claim by disavowing reliance upon any circumstances affecting that individual (paras 146 - 147). He indicated he would proceed on the assumed basis that, as a matter of discretion, the Court could - if satisfied that those represented would not be prejudiced and with suitable arrangements in place enabling them to opt out of the proceedings if they so chose - allow a representative claim to be pursued for part only of the potential compensation that could be claimed by an individual (para 147). Mr White KC does not concede the "in principle" point in the present case, but he is content for the Court to proceed on the basis of a similar assumption (para 8 above).
viable
claim under section 13 DPA 1998 for any member of the class. Lord Leggatt summarised the situation in this way at para 147:
"...The fundamental problem is that, if no individual circumstances are taken into account, the facts alleged are insufficient to establish that any individual member of the represented class is entitled to damages. That is so even if it is unnecessary to prove that the alleged breaches caused any material damage or distress to the individual." (Emphasis added).
A bifurcated process
Google
was in breach of the DPA 1998 and, if so, seeking a declaration that any member of the represented class who had suffered damage by reason of the breach was entitled to be paid compensation (para 84). However, a bifurcated process was not proposed in Lloyd, as it would have been uneconomic in the circumstances (para 85). This is also the position for the present claim.
The Claimant Class and reasonable expectation of privacy
view
was taken that to establish a reasonable expectation of privacy "it would be necessary to adduce evidence of facts particular to each individual claimant" and "the need to obtain evidence in relation to individual members of the represented class would be incompatible with the representative claim" (para 106).
variable
circumstances that could arise between class members in the present case. However, the Representative Claimant seeks to avoid this difficulty by accepting that in establishing the cause of action, such
variables
must be left out of account and that the claim must proceed on the basis of an irreducible minimum that is applicable to all class members. By proceeding in this way, the Representative Claimant says that the "same interest" criterion is met. It follows from this that Mr Pitt-Payne KC accepted that the question of whether there is a realistic prospect of establishing a reasonable expectation of privacy in relation to all of its members, must be considered by reference to the basic circumstances that would apply to each member of the Claimant Class.
variables
left out of account, the Claimant Class as a whole had a weighty reasonable expectation of privacy in respect of their medical records that were transferred to the Second Defendant. In terms of the factors identified in Murray he emphasised that: in each instance the record arose in a context where the person had presented at a hospital or GP's surgery for medical treatment; the data was being transferred to a private company for reasons that were not within the concept of direct care; no expressed or implied consent was given to this; the effect was that person in question lost control over a part of their medical records; and the purposes of doing so were not confined to the detection of AKI
via
the Streams app, but were as identified in the ISA and subsequently the MOU (paras 26 and 46 - 47 above).
Information generated by the doctor – patient relationship
v
Finland (para 71 above) as highlighting the importance of preserving confidence in the medical profession and the health services. He said that the authorities I have summarised at paras 72 - 75 above were not inconsistent with the distinction that he advanced as they were either concerned with health information that did not arise from the doctor – patient relationship (for example, Campbell) or the judicial observations were obiter dicta in circumstances that were distinct from the present case (ZC and Underwood). He also referred me to a number of materials that he said underscored the importance attached to the confidentiality of medical records and the protection that is afforded to them. I summarise those materials in the next few paragraphs.
v)
Everyone should be aware of their responsibilities; (
vi)
Understand and comply with the law.
"25. Most patients understand and accept that information must be shared within the healthcare team in order to provide their care. You should make sure information is readily available to patients explaining that, unless they object, personal information about them will be shared within the healthcare team, including administrative and other staff who support the provision of their care."
"...There is in effect an unwritten agreement between the individual and the professionals who provide the care that allows this sharing to take place...the health and social care professional is able to rely on 'implied consent' when sharing personal confidential data in the interests of direct care, as long as the patient does not object, or has not already done so..."
"Implied consent is applicable only within the context of direct care of individuals. It refers to instances where the consent of the individual patient can be implied without having to make any positive action, such as giving theirverbal
agreement for a specific aspect of sharing information to proceed..."
The September 2013 Government Response broadly accepted the recommendations of the Caldicott Review, including these aspects.
i) The tort of MOPI is derived from the respect for private life guaranteed by Article 8 ECHR. It is
very
well established that there is a threshold of seriousness that applies (para 69 above). This is considered on a fact-sensitive case by case basis, as the Supreme Court identified in Bloomberg (para 67 above); rather than it being understood that a particular category of information is exempt from the application of this threshold or treated as always surmounting it;
ii) The case law emphasises that all of the circumstances of the particular case should be taken into account in determining if a reasonable expectation of privacy has been shown (para 67 above). Mr Pitt-Payne KC's approach does not allow for that nuanced evaluation; it means that factors which are usually part of the assessment, such as the extent to which the information is already in the public domain, are not considered;
iii) The application of the threshold affords an important means of ensuring that the protection provided by Article 8 is placed in its appropriate context. It would be undesirable if each and every inadvertently erroneous transmission of patient data by a hospital was capable of amounting to an infringement of Article 8 however minor or anodyne the material (for example, a medical letter containing only anodyne information that was sent to the wrong address by a mistake);
iv) None of the cases that I have referred to at paras 71 - 76 above support the existence of Mr Pitt-Payne KC's suggested distinction. Even if the judicial observations in ZC and in Underwood were obiter dicta (which is doubtful in the latter case), they clearly support the opposite proposition, namely that a spectrum exists in relation to information generated by the doctor – patient relationship, such that information may be so anodyne and/or sufficiently in the public domain already, that no reasonable expectation of privacy arises;
v)
The fact that the NHS and the GMC emphasise the importance of confidentiality in relation to doctor – patient records does not preclude the existence of a minimum level of severity threshold when it comes to claims based on Article 8 ECHR and/or MOPI. The materials relied upon by Mr Pitt-Payne KC (which I have just summarised) are concerned with reinforcing the importance of how patient medical records are handled, but they are not aimed at identifying the circumstances in which an affected individual would have a
viable
civil claim. Similarly, the statutory materials referred to by Mr Pitt-Payne KC do not assist with whether a threshold exists or whether and when it would be crossed in medical records cases. In general a seriousness threshold does exist in relation to data protection claims, as was accepted in Lloyd (para 153). (Mr White KC also pointed out that, if anything, the definition of "data concerning health" in section 205(1) of the Data Protection Act 2018 undermined the Representative Claimant's submission as it required that the data, "reveals information about [the person's] health status"); and
vi)
It is difficult to see how or why information that has already been made public and does not attract a reasonable expectation of privacy, could become subject to such an expectation simply by dint of the same information then forming a medical record. (For example, an identifiable person who tweets that they have fractured their ankle and are on their way to hospital, before they arrive at the A & E Department with this injury.)
Information already in the public domain
variable
that would impact on the existence or otherwise of a reasonable expectation of privacy. I have just referred to the example of a person choosing to place information about their medical condition and/or hospital
visit
on social media. In addition, the Defendants' evidence includes examples of grateful patients publicising in the media the treatment that they were able to receive following the detection of AKI.
viability
threshold ("the fallback submission").
variables
inherent in the nature, degree and content of that publicity means that individualised assessment of each claim is required (so that a representative action is not possible), or if the claims are to be advanced on a global, irreducible minimum basis, then that irreducible minimum has to reflect a situation in which the patient identifiable information was already in the public domain in its entirety. This feature then has to be considered along with all the other relevant irreducible minimum circumstances to see if there is a realistic prospect of a reasonable expectation of privacy being established in those circumstances (para 166 below).
The purpose for which the information was transferred and stored
view
it is relevant to take account of the alleged wrongdoer's purpose/s at the point when the MOPI is said to have occurred, since this is the event that is said to found the cause of action and a Defendant's purpose at this juncture will likely be the reason for, or at least part of the reason for, the interference complained of. A later change of purpose may be relevant to any alleged subsequent interference and/or to the degree of the intrusion and thus to compensation. Accordingly, where the complaint concerns the transfer and the initial storage of the patient data, it is relevant to take into account the Defendants' purposes for the data as they were at that stage, in deciding if there was a reasonable expectation of privacy. Equally, where the alleged interference relates to, for example, the way in which patient data was subsequently used in testing the Streams app, then it is the Defendants' purpose/s for the data at that later juncture which it is relevant to consider in determining whether a reasonable expectation of privacy existed in respect of this. Thus, where an intended use of data did not in fact materialise post-transfer, then this would bear on the overall extent of the interference and the loss of control.
Direct care and the uses made of the data
Transfer and storage of patients' medical records
via
Streams; and he submitted that as the Streams app could not have been operational without this data, its transfer to the Second Defendant and the normalisation process was an integral step in the provision of direct care
via
the app, and that this was so whether the transfer occurred in October 2015 or at a time much closer to when the app became operational in February 2017.
viable
claim.
Using medical records in the development and/or testing of Streams
via
the pre-launch Streams, alongside their clinicians accessing the same records containing the same information
via
the Royal Free's existing means for doing so (paras 43 - 44 above).
view
appears to be based on a blanket proposition that as the Streams app "was going through testing and therefore could not be relied upon for patient care" prior to February 2017, the use of patient records could not be described as direct care. I consider that the position is more nuanced, not least in this
very
limited and particular situation described by Dr Hughes, which is not specifically referenced by the NDG.
via
Streams as part of this phase of testing is not known (para 43 above). However, the conclusion I have expressed in paras 151 - 152 above would apply to the patients in question, whether it was 200 – 300 as Dr Hughes estimates, or a different figure.
very
small number relative to the entire Claimant Class. During oral argument, Mr Pitt-Payne KC fairly accepted that a claim with reasonable prospects of success in relation to this small number would not assist with the
viability
of the current representative action. Accordingly, his main contention in relation to the testing aspect of his case was based on the ICO's documentation (para 55 above), which he said indicated that the safety and effectiveness testing involved the much larger cohort of all those whose data was transferred to DeepMind; or at least this was an arguable proposition that should be resolved at trial rather than dismissed at this stage.
various
stages of the testing or the way in which real patient data was or was not used at each stage of that process. Thus there is nothing specific in this text which gainsays the account given by Dr Hughes as to what was done at each of those stages and the use of synthetic data. Nor does the ICO's letter describe how patient identifiable data was used in the clinical safety and effectiveness testing, so that there is nothing in the letter that directly contradicts Dr Hughes' explanation of the nature and extent of the use of patients' medical records at this juncture (paras 43 - 44 above). It appears that the ICO proceeded on the basis that the full cohort of patient identifiable data relating to around 1.6 million people had been normalised by this point and thus was stored and available
via
the Streams app. However, for present purposes, that is a different point to the question of the extent to which such data was used and accessed during this testing phase. As the ICO's conclusion provides no realistic basis for undermining Dr Hughes' account in that regard, I conclude that I should proceed on the basis that the use of patient identifiable data in the clinical safety and effectiveness training was confined as he has described.
via
Streams during this phase, but was not in fact accessed or used during the clinical safety and effectiveness training.
Reasonable expectation of privacy: conclusions
variables
that would give rise to a stronger claim for some individuals must be left out of account, as the action is pursued purely on the basis of the lowest common denominator factors that apply to all in the class. Additionally, because the question for me is whether every member of the class has a
viable
claim, circumstances that point against the existence of such an expectation or reduce the potency of the positive factors should be taken into account.
variables
in relation to the latter. This has not been challenged by the Representative Claimant. This spectrum will include those who attended a Royal Free hospital but ultimately did not see a clinician. Dr Hughes says that individuals "often" attended the Emergency Department and registered their attendance at the hospital's reception, but then decided, perhaps after waiting some time, to leave without having been seen by a clinician. He explains that in these circumstances an HL7 message would be generated to record the person's arrival at the hospital and that this would include some demographic information, but even the extent of this would
vary
depending (for example) on the patient's degree of co-operation and/or their ability to speak English or otherwise communicate effectively. Accordingly, not every HL7 message would include the person's address and sometimes incorrect names were given. An HL7 message might also be generated recording that the patient had been discharged as they had left the hospital. In addition, an admission message would record that the person had been admitted to the hospital and it could, but did not always, include a free text comment from the receptionist as to the nature of their complaint; a message could be in
very
general terms (for example, "unwell") or could simply record that the individual was unwilling to divulge information to the receptionist. Mr Pitt-Payne KC's rejoinder that a reasonable expectation of privacy would arise, or arguably arise, even in these instances was based on his medical records submission which I have rejected (paras 133 - 134 above).
visit
a dentist.
i) There was one attendance at a Royal Free hospital. The HL7 message that this generated indicated the attendance, including the date and the establishment (paras 162 - 164 above);
ii) The attendance did not concern a medical condition involving any particular sensitivity or stigma;
iii) Limited demographic information was recorded by the hospital receptionist so that only the person's name and a partial address was included in the HL7 message, with
very
generalised or no specific reference to the medical condition that had prompted the attendance (para 163 above);
iv) There was no further record generated and thus no further record included in the data that was transferred (which could have arisen, for example, because the person left without being seen by a clinician) (paras 163 - 164 above);
v)
Information relating to the hospital attendance was otherwise in the public domain (which could have arisen, for example, because the attendee posted the information on social media) (paras 135 - 138 above);
vi)
The data was transferred to the Second Defendant and stored in circumstances which there is a realistic prospect of showing went beyond direct patient care (paras 146 - 147 above). The period of time involved is currently unclear, but for present purposes it is assumed in the Representative Claimant's favour that it was up to 12 months (para 147 above). The storage was secure and the information was not accessed or otherwise processed during this time, save for the normalisation process referred to below;
vii)
At the time of the steps referred to in the previous sub-para, the Defendants' intended purposes for the data related both to the Streams app and to a wider collaboration with the Royal Free that would be financially beneficial to the Defendants, but the information was not in fact used in that broader way (para 141 above);
viii)
The data was subject to an automated normalisation process to make it available
via
the Streams app, but it was not accessed during the periods of clinical safety and effectiveness training or otherwise before the app was operational from February 2017 (paras 43 - 44 above). The extent to which data was accessed during the clinical safety and effectiveness training was part of patient direct care (paras 151 - 152 above);
ix) The subject of the data had not been made aware of the Defendants' use of their data and had not consented to the same;
x) Use of the data in the Streams app from February 2017 was admittedly for the purposes of direct care; and
xi) No upset or concern was caused by the data transfer and storage; the only adverse effect was the sheer fact of the loss of control over this data in the way described.
very
limited information was transferred and stored; although health-related, it was anodyne in nature; this information was held securely and not accessed by anyone during the storage period; the information was already in the public domain; the alleged acts of interference outside of patient direct care were limited to the transfer of the data and to its secure storage for up to 12 months; and that this caused no impact other than the loss of control itself.
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.
The Claimant Class and unlawful interference
The Claimant Class and loss of control damages
viable
claim for more than nominal loss of control damages. That may be so, but the converse is also true. Again, the Court is considering matters by reference to the lowest common denominator and assessing whether every member of the class has a realistic prospect of attaining an award of non-trivial damages for a claim advanced on the lowest common denominator basis. As I have explained earlier, individualised factors that would point to a substantial award of compensation in particular circumstances must be left out of account.
viable
claim for an entitlement to more than trivial damages.
No other compelling reason for the claim to proceed
i) Whilst there may be some uncertainty over whether the transferred medical records went back over four years or five years (para 33 above), this makes no material difference to the questions I have to decide at this stage. As it is accepted that this representative action can only proceed on an irreducible minimum common basis, the claim has to be assessed on the footing that the class member's transferred medical records referred to one attendance only at a medical establishment (para 162 above);
ii) Equally, whilst there is some uncertainty over the number of people affected at this stage (around 1.6 million, plus the unknown number in the blood test data sub-group (para 35 above)), this makes no difference to the questions I have to decide at this stage, since I have to consider whether every member of the class has a
viable
claim and the position is not strengthened by the overall size of the class involved (paras 160 - 161 above);
iii) The content of the individual medical records that were transferred is not known at this stage. However, the Representative Claimant has not disputed the Defendants' evidence as to the lowest common content of such records (paras 163 - 164 above). In turn, it is this content that has formed the basis of the conclusions that I have reached (paras 166, 168, 172 and 174 - 175, in particular);
iv) There is some lack of clarity at this stage around when the Defendants' intended use of the patient data narrowed to focus on the Streams app only and over the extent to which the use of the data for the purposes of Streams was delayed. However, I have proceeded at this stage on the basis of assumptions favourable to the Representative Claimant that at the time of the data transfer and for a period of months thereafter the Defendants' plans remained of the broader kind expressed in the ISA and MOU and that it was unnecessary to store the data for the lengthy period of time that occurred simply for its ultimate use in relation to Streams (paras 146, 147 and 166 above). Accordingly, the Representative Claimant's position is unlikely to be significantly improved in this regard by proceeding to trial; and
v)
I have taken into account and addressed the significance of the ICO's findings in relation to the Royal Free's responsibilities as data controller in arriving at my conclusions (paras 156 - 157 above).
Should an opportunity be given to amend the pleading?
version
of the current claim.
version
of the claim before I decide whether to strike out his pleadings and give summary judgment.
viable
claims and (as was recognised for example in Marks), if that narrower group of individuals can be assisted to access the Court then that is better than simply striking out the claim of the whole class; it ought to be possible to identify a
viable
claim on behalf of a narrower class; and Lord Leggatt in Lloyd recognised the importance of flexibility.
i) The difficulties that the Representative Claimant faces are inherent in seeking to bring this claim as a representative action when necessary components of establishing both liability and the remedy sought (a reasonable expectation of privacy and loss of control damages) would usually be assessed on an individualised basis and in the present circumstances many relevant
variables
exist between members of the Claimant Class. The Representative Claimant accepts that a representative action is only permissible if all of the individualised circumstances of those in the represented class are left out of account. However, taking a global irreducible minimum approach in circumstances where there are so many
variables
means that even with some narrowing of the class, it is
very
unlikely that it can be said that any given member of the class will have a
viable
claim with a reasonable prospect of success;
ii) The lowest common denominator approach means that individualised characteristics and situations that could strengthen the claim or increase the likely award of damages have to be left out of account. This would remain the case if the claim was amended and narrowed. For example, the question of whether there was a
viable
claim across the class would still have to be approached on the basis of the most anodyne medical records that could apply to the re-drawn class; and the assumption would still need to be made that the contents of those records were already in the public domain;
iii) The difficulty is compounded because of the number of potentially relevant
variables
and the fact that most of those
variables
are on a spectrum, rather than binary elements. It is not simply a question of removing a particular cohort from the represented class. To illustrate the distinction, the scope of the Claimant Class could be amended with relative ease to exclude those where the entry in their records was more than four years prior to the transfer date or those who had died before the date of transfer (paras 16 and 149 above). By contrast, amending the class to exclude those whose medical information was already in the public domain to a particular degree and those whose medical records did not contain a certain level of health-related content would be much more difficult;
iv) Attempting to amend the claim in this way to introduce further, nuanced criteria to the Claimant Class would also give rise to profound practical problems. It is
very
difficult to see how this could be achieved in circumstances where the identity of most of the current class members and the details of their transferred records are unknown;
v)
Given the fundamental difficulties that I have concluded exist with the current claim, a representative action would require substantial re-formulation with a
very
substantially narrower cohort than the Claimant Class to have any possible prospect of success. This would not be an instance of permitting time for amendment in order to address a specific deficiency in an otherwise
viable
claim, rather it would be to potentially permit a radically redrawn claim to be advanced;
vi)
In light of the number of
variables
that would need to be addressed, production of an amended pleading would be a considerable task and one that would likely lead to a further substantial hearing, with rival written and oral submissions and the Court asked to rule on whether a
viable
claim had now been identified in a further reserved judgment. There is force in Mr White KC's point that this would effectively be giving the Representative Claimant a second go at identifying a
viable
claim in circumstances where up to and including this hearing, his legal team chose to identify and advance the claim in a particular way. A litigant is not usually given a second chance to re-run their case after the Court has rejected their chosen way of doing so. The Representative Claimant could have pursued a narrower
version
of the claim for the purposes of this hearing, even as an alternative, but did not do so; and
vii)
Lest the contrary be suggested, this is not simply a problem with the clarity of the class definition (as referred to at para 107 above); rather, as I have identified, there is a fundamental and inherent difficulty in identifying a
viable
claim for any class members if this claim is brought as a representative action on the basis of common circumstances.
Summary of conclusions
viable
claim in MOPI if their individual circumstances were taken into account. As I have explained, Mr Pitt-Payne KC accepts that pursuit of a representative action under CPR 19.8 on behalf of the large numbers of people whose data was transferred requires the Representative Claimant to leave their individualised aspects out of account and to pursue the claim on the basis of the lowest common denominator of circumstances that apply to the class members. He also accepts that, judged on the basis of those circumstances, it is necessary for there to be a realistic prospect of establishing the ingredients of the cause of action, in particular a reasonable expectation of privacy, across the members of the represented class and of recovery of non-trivial awards of damages for loss of control of the information.
i) This is not a situation in which every member of the Claimant Class, or indeed any given member of the class, has a realistic prospect of establishing a reasonable expectation of privacy in respect of their relevant medical records or of crossing the de minimis threshold in relation to such an expectation (paras 160 - 169 above). For similar reasons there is no realistic prospect of the Court concluding at trial that the members of the class across the board experienced a wrongful interference with their data (paras 170 - 172 above). It therefore follows that the current claim is bound to fail;
ii) In addition it cannot be said of any member of the Claimant Class that they have a
viable
claim for more than trivial damages for loss of control of their information (paras 173 - 178 above);
iii) There is no other compelling reason to permit the claim to proceed to trial (paras 179 - 180 above); and
iv) The claim form and the particulars of claim should be struck out at this stage and summary judgment entered for the Defendants. The difficulties that I have identified are inherent in bringing a representative action in MOPI in this particular context and accordingly, I do not consider that it is in the interests of justice to permit the Representative Claimant the opportunity to attempt to revise the claim before making that determination (paras 183 - 185 above).
very grateful for the assistance I received from counsel in this matter and the high quality of their submissions.