The High Court has struck out a representative action brought on behalf of 1.6m people who claimed Google and DeepMind Technologies misused their medical records.
Mrs Justice Heather Williams ruled that the representative claimant – Andrew Primsall, advised by Mishcon de Reya – could not show that the group met the ‘same interest’ criterion necessary for an action under CPR 19.8.
The claim for misuse of private information (MOPI) arose out of an arrangement made in 2015 between Google and DeepMind and the Royal Free London NHS Foundation Trust, under which the tech companies obtained the individuals’ confidential medical records without their knowledge or consent.
The claim was for ‘loss of control’ damages and it was accepted at the strike-out hearing that the claimants could not recover individualised damages via a representative action.
It meant the claim was confined to seeking what were referred to as “lowest common denominator damages” for each member of the class – compensation calculated by reference to the irreducible minimum harm suffered by all members.
This meant in turn that there needed 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 class.
But Williams J held that this could not be said for any given member of the class. The amount of data transferred depended on the hospital from which it came and also the nature and extent of the person’s attendance there – there was a “broad range of variables”.
Under the irreducible minimum scenario, she went on, “very limited information was transferred and stored”. Although health-related, it was “anodyne in nature”.
Further, the 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”.
There was also “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”.
In addition, the judge said, “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”.
There was “no other compelling reason” to permit the claim to proceed to trial and Williams J rejected the claimant’s request to amend their pleading.
“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.”
Williams J struck out the claim and entered summary judgment for the defendants.
Listed litigation funder LCM backed the claim and was added as an interested party for the purposes of costs.