The Supreme Court is to review a Court of Appeal decision to allow a £3bn representative action against Google for misuse of private data to go ahead.
The ‘Google You Owe Us’ action is one of the highest-profile cases on court’s upcoming docket after granting Google permission to appeal, and along with the Mastercard case – which the court heard last month – should give a strong steer on the judicial view of consumer group actions.
The claim alleges that, over some months in 2011-2012, Google acted in breach of duty under the Data Protection Act 1998 (DPA) by secretly tracking the internet activity of Apple iPhone users, collating and using that data, and then selling it all on.
No financial loss or distress is alleged. The claim is for a standard award – potentially of around £750 – for each of the estimated 4.4m members of the class, to reflect the infringement of the right, the commission of the wrong, and loss of control over personal data.
The estimated bill for Google if it loses is between £1bn and £3bn. Its solicitors are Pinsent Masons, while Mishcon de Reya acts for the representative claimant, Richard Lloyd, the former executive director of Which?.
In October 2018, Mr Justice Warby ruled against granting permission to serve proceedings on the internet giant in the US because there was not a reasonable prospect of the claim succeeding.
But this was overturned by the Court of Appeal, which boosted the use of representative actions in claims such as these, where the court said there was no other practical way of pursuing them.
The Supreme Court will consider whether Mr Lloyd should have been refused permission to serve the claim against Google out of the jurisdiction because:
- members of the class had not suffered ‘damage’ within the meaning of section 13 of the DPA 1998; and/or
- Mr Lloyd was not entitled to bring a representative claim because other members of the class did not have the ‘same interest’ in the claim and were not identifiable; and/or
- the court should exercise its discretion to direct that he should not act as a representative.
Therium Capital Management is funding the claim in three tranches totalling £15.5m, and there is after-the-event insurance to cover adverse costs of up to £12m.
However, the Supreme Court has refused permission to appeal in the case of MIB v Lewis, in which the Court of Appeal upheld a ruling that the Motor Insurers Bureau had to pay compensation to a man injured by an uninsured vehicle, even though it was on private land.
The Supreme Court said the application did not raise an arguable point of law, adding: “In relation to the point of European law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling the court’s existing jurisprudence already provides a sufficient answer.”