On 11 December 2024, the Court of Appeal (Dame Victoria Sharp, Lady Justice Nicola Davies and Lord Justice Dingemans) handed down judgment in Prismall v Google UK Ltd and DeepMind Technologies Ltd [2024] EWCA Civ 1516. The judgment is likely to have significant consequences for future mass misuse of private information (MOPI) claims.
Mr Prismall brought a representative action, pursuant to what is now Civil Procedure Rule r.19.8, for the tort of misuse of private information against 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 was 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 claim related to Google and DeepMind’s misuse of the transferred information prior to Streams being used for the clinical treatment of patients. The representative claim was struck out at first instance by Heather Williams J: see Prismall v Google UK Ltd and DeepMind Technologies Ltd [2023] EWHC 1169 (KB).
Mr Prismall, represented by Timothy Pitt-Payne KC and Stephen Kosmin, was granted permission to appeal by Warby LJ. The appeal raised the principal issue of whether Heather Williams J 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.
The appeal was dismissed. At paragraph 66, the Court of Appeal observed: “We consider that a representative class claim for misuse of private information is always going to be very difficult to bring. This is because relevant circumstances will affect whether there is a reasonable expectation of privacy for any particular claimant, which will itself affect whether all of the represented class have “the same interest”.”
Timothy Pitt-Payne KC and Stephen Kosmin (instructed by Mishcon de Reya LLP) acted for Mr Prismall, the representative claimant. A copy of the judgment can be found here.
