Representative claim against Google and DeepMind dismissed by High Court

The court determined (47-page / 869KB PDF) that the claim had no real prospect of success.

Andrew Prismall claimed to represent approximately 1.6 million patients of the Royal Free London NHS Foundation Trust (the Royal Free) who he claimed had suffered damage, in the form of the loss of control over their patient data, following its transfer to Google by the Royal Free in October 2015.

The data was transferred in connection with DeepMind’s provision of a service called Streams, which was used by the Royal Free to help doctors quickly and automatically identify patients potentially suffering from acute kidney injury. Prismall alleged that the receipt and use of patients’ medical data in the context of Streams without explicit consent was a misuse of their private information.

In order to advance his claim, Prismall needed to show that all of the represented individuals had a reasonable expectation of privacy in their information with which Google had ‘wrongfully interfered’. In addition, for the claim to be advanced under the Civil Procedure Rules representative action procedure, each of the represented individuals needed to have the “same interest” in the proceedings.

In the case of Lloyd v Google, the Supreme Court held, amongst other things, that a representative action for damages is not viable where it would require an individualised assessment of class members’ loss. Prismall sought to circumvent this by expressly disavowing the individual circumstances of each of the class members, reducing their claim to the “irreducible minimum harm suffered by all members of the class” – i.e. the ‘lowest common denominator’.

Prismall argued that, due to the specific circumstances of this case, including the fact that it concerned patients’ medical information, it could be established without the need for an individualised assessment that, for each class member, there was a reasonable expectation of privacy in the relevant information; this expectation was unjustifiably interfered with; and such interference would entitle them to an award of more than trivial damages.

The judge posited a scenario for the lowest common denominator and, with reference to this, concluded that there was no realistic prospect of every, or any, member of the represented class meeting any of the three requirements.

She said: “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 … 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. It therefore follows that the current claim is bound to fail.”

She added: “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.”

Prismall has been refused permission by the High Court to appeal the judgment. Permission to appeal could still be sought directly from the Court of Appeal.

Google and DeepMind were represented by David Barker, Caroline Henzell and Toby Coughlin of Pinsent Masons.