Representative claims in England and Wales under CPR19.8
In its judgment in December last year in Prismall v Google and DeepMind [2024] EWCA Civ 1516 the Court of Appeal shut the door to a representative action under CPR 19.8 brought on behalf of 1.6 million patients of a London NHS Foundation Trust whose patient-identifiable medical records had been transferred, without their knowledge or consent, to Google and DeepMind.
The information was to be used to help identify and treat patients suffering from acute kidney injury, but Google and DeepMind also had a contractual entitlement to use the data for purposes wider than direct patient care so as to enhance future commercial prospects.
Unlike other mass data breach claims (including, notably, the leading case of Lloyd v Google) this claim was not brought pursuant to specific data protection legislation, but instead as a claim for damages for the tort of misuse of private information. It was said that each member of the proposed class had the same reasonable expectation of privacy in their medical records, and that the transfer to and use by Google and DeepMind of those medical records, without knowledge or consent, was a tortious misuse of those records entitling the class members to damages for loss of control
The claim was not about whether valid claims could in principle be brought by individual patients whose medical records were transferred. It was common ground between the parties that, subject to issues of limitation, such claims might be brought and might succeed.
The key issue for the court was instead whether all members of the proposed class had the “same interest” for the purposes of CPR 19.8(1), which provides as follows:
“Where more than one person has the same interest in a claim a) the claim may be begun; or (b) the court may order that the claim be continued, by or against one or more of the persons who have the same interest as representatives of any other persons who have that interest”.
Google and DeepMind argued that there were differences in terms of the content of the medical records and that it was therefore not possible to say that all of the records attracted the same expectation of privacy. They also relied heavily on the fact that at least two members of the proposed class had given certain details of their medical conditions to local newspapers in order to raise public awareness and, in one case, to encourage organ donation. They argued that in those circumstances not all members of the proposed class had the same interest in the privacy of their medical records.
It was said for Mr Prismall that there was a reasonable expectation of privacy for every claimant. This was because the information which was misused was medical information about the claimants, which had been generated in the course of a doctor-patient relationship. Any such information generated in this way would always give rise to a reasonable expectation of privacy, regardless of the actual content of the medical record or whether a patient might have placed that information in the public domain – in short, nothing should affect the obligation of the doctor or healthcare provider to keep that information private.
The court did not agree, and held that the same interest requirement in CPR 19.8 could not be met. The court did though agree that the fact that a patient has published some material relating to their treatment does not also mean that the reasonable expectation of privacy in all patient-identifiable information will necessarily be lost.
The court clearly arrived at its conclusions with some reluctance, commenting as follows:
“We are bound to say that in the circumstances of this case (including that Google had taken and used large quantities of patient medical data for its own commercial purposes without the patients’ knowledge or consent) Google’s reliance on the altruistic behaviour of … two patients in support of its strike out application is not an attractive one, and illustrates the difficulties to which Lord Leggatt referred in Lloyd v Google … of coming at justice in a digital case involving numerous potential claimants.”
The decision was a disappointment for the prospective class members, and for all those who had hoped to see a progressive development of the CPR 19.8 regime. While the Supreme Court had also held in Lloyd v Google, for different reasons, that the same interest test had not been met, Lord Leggatt commented that the test “needs to be interpreted purposively in light of the overriding objective of the Civil Procedure Rules and the rationale for the representative procedure.”
He also commented that the absence of a detailed legislative framework for class actions outside the Competition Appeal Tribunal was no reason to interpret the representation rule restrictively and that its simplicity was in some respects a strength.
Before the decision in Prismall supporters of an effective representative class action regime had taken heart from the seemingly more liberal approach to the “same interest” requirement in the judgment of Knowles J. in Commission Recovery Ltd v Marks & Clerk LLP & Long Acre Renewals [2023] EWHC 398. In that case the judge allowed a claim in respect of secret commissions to proceed on behalf of all clients and former clients of the defendants in respect of whom a commission was received.
The court accepted that some elements of the claim might differ depending on class members’ individual circumstances, but did not see this as an impediment to the representative action procedure as there was no conflict of interest between class members. The court did envisage that some aspects of the claims might in due course need to dealt with through individual arrangements outside CPR 19.8, but considered it appropriate to exercise discretion in favour of the representative action, noting: “If the choice is this or nothing, then better this.”
On appeal the Court of Appeal agreed that the claims of each member of the class did raise a common issue, but it was a narrow one based on whether class members would establish liability if they proved that they contracted with the defendants on standard terms and that the defendants received relevant renewal commissions. A declaration could therefore be made on this issue on a representative basis.
However there were other issues that would need individual assessment, such as whether the defendants would in each case be able to raise defences such as limitation. So although the Court of Appeal approved the use of the representative action mechanism it did so in a narrow context which would require subsequent opt-in claims using a bifurcated process.
The representative proceedings in that case would not therefore lead to a class-wide award of damages.
A bifurcated process, with a representative claim to establish liability followed by individual opt-in damages assessments, may be unattractive to some litigation funders, whose support will be needed in most if not all cases pursued on a representative basis. However the experience in Australia (see below) is that once the common issues are established a settlement will generally follow.
The approach of the court to the “same interest” test in Prismall makes it difficult to see how the CPR 19.8 regime will prove a suitable means for dealing with class actions on a representative basis, at least without some statutory widening of the regime to allow for a more purposive interpretation of the test.
Certainly, any purpose built procedural framework for class actions along the lines of the Competition Appeal Tribunal regime for competition and consumer related claims seems a distant prospect, and one which might well be tied to the outcome of the Civil Justice Committee’s review of litigation funding, where a full report is not expected until the Summer of 2025.
In other jurisdictions which have more developed procedures for representative proceedings, the legislative regime does not include a “same interest” test which is as narrow as CPR 19.8. For example, section 33C of the Federal Court of Australia Act 1976 allows a representative proceeding to be brought where:
(a) 7 or more persons have claims against the same person; and
(b) the claims of all those persons are in respect of, or arise out of, the same, similar or related circumstances; and
(c) the claims of all those persons give rise to a substantial common issue of law or fact.
So, rather than a requirement that all members of the class have the “same interest” in the claim, the gateway to an action proceeding as a representative action under the Australian regime is that the claims of the group members (which it is accepted may be different) be against the same person and arise out of the same, similar or related circumstances.
The level and extent of damage suffered by individual group members will of course be different but that is not an obstacle to the issues of fact and law that are common to those group members being determined by the representative proceeding. These issues (known as common questions) are determined in an initial trial of the case of the representative plaintiff with the individual damages assessment of the group members determined only after this initial trial. As mentioned above, the experience in Australia is that cases generally settle at this stage.
Another option in Australia is to seek an order for damages to be assessed on an aggregated basis where there is a common basis for that assessment across the class.
One more important distinction from the position in England and Wales is that there is no certification procedure in Australia, so once a claim with the characteristics is commenced, it will proceed unless there is an application by the respondent to “declass” the proceeding (or this is done on the court’s motion). Such declassing applications are rarely brought in Australia.
If the English class action regime does come to be considered by Parliament then much could be learned from other jurisdictions such as Australia which have developed procedures to give access to justice to wronged class members in a way that is not currently available under CPR 19.8.