Andrew Prismall v Google UK Limited & Anor

A representative claim for misuse of private information may proceed only where all represented persons share the same interest and each has a realistic prospect of establishing the cause of action and recovering the common remedy claimed. Individualised circumstances must be left out of account when the claim is advanced on a lowest common denominator basis. Medical information does not automatically attract a reasonable expectation of privacy: its content, sensitivity, publicity, purpose of use and the seriousness threshold remain relevant. Secure transfer and storage may fall outside direct care, but the claim still fails where the irreducible minimum information is anodyne, already public, not accessed and causes no impact beyond loss of control. Individual assessment required to establish more than nominal damages precludes the proposed representative action.

The Representative Claimant brought a CPR 19.8 representative claim for damages for misuse of private information on behalf of approximately 1.6 million people whose patient-identifiable records had been transferred by the Royal Free London NHS Foundation Trust to DeepMind in 2015.

The claim alleged wrongful transfer, storage, use in developing or testing the Streams application, and use for wider commercial purposes. It sought uniform loss-of-control damages calculated by reference to the lowest common denominator harm suffered by every class member. The defendants applied for strike-out under CPR 3.4(2)(a) and summary judgment under CPR 24.2. The central issues were whether every class member had a realistic prospect of establishing a reasonable expectation of privacy and unlawful interference, and whether the proposed common damages were viable.

1. Application granted. The claim form and particulars of claim were struck out and summary judgment was entered for the defendants. There was no other compelling reason for the claim to proceed.
2. The tests under CPR 3.4(2)(a) and CPR 24.2 were materially the same. The question was whether the claim was realistic rather than fanciful, while avoiding a mini-trial. The court could consider the evidence where appropriate and should account for evidence reasonably expected at trial.
3. Under CPR 19.8, the same-interest requirement is concerned with conflicts between class members. A defence available only against some members does not necessarily prevent representation where advancing one member’s case would not prejudice another. However, the requirement is not satisfied where the proposed common case cannot show that every member has a viable cause of action.
4. Following Lloyd, damages requiring individual assessment cannot ordinarily be recovered through a representative action. A lowest common denominator claim is viable only if the common facts establish an entitlement to damages for every represented person. The court assumed, without deciding, that loss-of-control damages could in principle be claimed in this way.
5. Misuse of private information requires a reasonable expectation of privacy and an unjustified interference. Medical records are highly relevant to the privacy assessment, but information generated in the doctor-patient context does not invariably attract privacy protection. The seriousness threshold remains fact-sensitive, and information already in the public domain remains relevant.
6. There was a realistic prospect that transfer and some storage before Streams became operational fell outside direct care. However, the irreducible minimum scenario involved one attendance, limited and anodyne information, prior publication, secure storage, no access, no upset and only limited loss of control. On that basis, not every class member had a viable claim or a realistic prospect of more than nominal damages.
7. The clinical safety and effectiveness testing of the limited cohort described in the evidence was an aspect of direct care. The alleged wider commercial purpose did not create a separate free-standing misuse where no additional use of patient data was identified.
8. The representative claim was therefore bound to fail. Narrowing the class would require a radically redrawn claim addressing numerous variables and would not cure the inherent difficulty of proving a common viable claim.