Data Class Actions: Claim For Misuse Of Private Information Could Not Be Brought As "Opt-out" Representative Action

• Jurisdiction: European Union
• Law Firm: Herbert Smith Freehills
• Subject Matter: Litigation, Mediation & Arbitration, Privacy, Data Protection, Privacy Protection, Class Actions
• Author: Mr Julian Copeman, Kate Macmillan and Maura McIntosh
• Published date: 30 May 2023

The High Court has dismissed an attempt to bring a claim for misuse of private information as an "opt-out" representative action under CPR 19, where the representative claimant was seeking damages based on a "lowest common denominator" of the claimant class: Prismall v Google UK Ltd [2023] EWHC 1169 (KB).

A representative action under CPR 19 can only be brought if the represented class has the "same interest" in the claim. In its high profile decision in Lloyd v Google [2021] UKSC 50 (considered here), the Supreme Court found that a claim for compensation for alleged breaches of data protection legislation could not get round this hurdle by disclaiming any reliance on class members' individual circumstances, as such claims require proof of damage and cannot be brought for the mere loss of control of data.

Following that decision, it was thought that a claim framed in the tort of misuse of private information might have more success as a representative action, since it is well-established that damages for that tort can be awarded for the loss of control of data. However, the current decision suggests that representative actions for misuse of private information will also face significant hurdles.

In Lloyd v Google, the Supreme Court stated that, even if damages could be awarded for the unlawful processing of data, the court would need to consider the extent of the unlawful processing in the individual case to be able to conclude that the damage was more than trivial. A claim based on the "lowest common denominator" of the claimant class therefore could not succeed.

The current decision adopts the same approach in striking out the claim for misuse of private information. The claim failed because, if assessed on an irreducible minimum basis, it could not be said that every class member had a viable claim. But conversely, if individual circumstances were taken into account, that would mean that the "same interest" test was not met. Either way the claim was bound to fail. The same reasoning seems likely to apply to other attempts to bring claims in misuse of private information as representative actions, unless perhaps the data in question is so sensitive and the interference so extreme that, even on an irreducible minimum basis, it is clear that all class members' claims are viable and non-trivial.

The decision refers in passing to the recent High Court decision in Commission Recovery Ltd v Marks & Clerk LLP [2023] EWHC 398 (Comm) (considered here), in which a claim in respect of secret commission was allowed to proceed as a representative action. The judge noted that that case suggests, consistent with comments in Lloyd v Google, that the existence of a defence which applies to only some class members does not preclude the "same interest" test being met, so long as there is no conflict of interest. However, the judge said, the current case did not involve a potential defence available to a subset of class members; rather, it was simply not possible to ascertain whether any given class member had a viable claim. Despite these comments, it is not easy to reconcile the court's willingness in Marks & Clerk to allow the representative action procedure to be used where there were potentially significant differences between claimants'...