Heard on 28 and 29 April 2021 Appellant Antony White QC Edward Craven
(Instructed by Pinsent Masons LLP (London))
Respondent
Hugh Tomlinson QC Oliver Campbell QC
Victoria Wakefield QC
(Instructed by Milberg London LLP)
1st Intervener (Information Commissioner)
Gerry Facenna QC Nikolaus Grubeck
(Instructed by Information Commissioner’s Office)
2nd Intervener (Open Rights Group) (written submissions only) Robert Palmer QC Julianne Kerr Morrison
(Instructed by AWO)
3rd Intervener (Association of the British Pharmaceutical Industry and Association of British
HealthTech Industries (ABPI and ABHI)) (written submissions only) Lord Anderson of Ipswich KBE QC
Robin Hopkins Rupert Paines
(Instructed by CMS Cameron McKenna Nabarro Olswang LLP (London))
4th Intervener (Liberty, Coram Children’s Legal Centre and Inclusion London) (written submissions only) Dan Squires QC Aidan Wills Tim James-Matthews
(Instructed by Liberty, Coram Children’s Legal Centre and Deighton Pierce Glynn)
5th Intervener (Internet Association) (written submissions only) Christopher Knight (Instructed by Linklaters LLP (London)) 6th Intervener (TECHUK Ltd (trading as techUK)) (written submissions only) Catrin Evans QC Ian Helme (Instructed by RPC LLP (London))
LORD LEGGATT: (with whom Lord Reed, Lady Arden, Lord Sales and Lord Burrows agree)
A.
INTRODUCTION
1. Mr Richard Lloyd - with financial backing from Therium Litigation Funding IC, a
commercial litigation funder - has issued a claim against Google LLC, alleging breach of its duties as a data controller under section 4(4) of the Data Protection Act 1998 (“the DPA 1998”). The claim alleges that, for several months in late 2011 and early 2012,
Google secretly tracked the internet activity of millions of Apple iPhone users and used the data collected in this way for commercial purposes without the users’ knowledge or consent.
2. The factual allegation is not new. In August 2012, Google agreed to pay a civil penalty of US$22.5m to settle charges brought by the United States Federal Trade Commission based upon the allegation. In November 2013, Google agreed to pay US$17m to settle consumer-based actions brought against it in the United States. In
England and Wales, three individuals sued Google in June 2013 making the same allegation and claiming compensation under the DPA 1998 and at common law for misuse of private information: see Vidal-Hall v Google Inc (Information Comr intervening) [2015] EWCA Civ 311; [2016] QB 1003. Following a dispute over jurisdiction, their claims were settled before Google had served a defence. What is new about the present action is that Mr Lloyd is not just claiming damages in his own right, as the three claimants did in Vidal-Hall. He claims to represent everyone resident in England and Wales who owned an Apple iPhone at the relevant time and whose data were obtained by Google without their consent, and to be entitled to recover damages on behalf of all these people. It is estimated that…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lloyd (Respondent) v Google LLC (Appellant) [2021] UKSC 50
Case
[2021] UKSC 50
Decision Date
CaseChat Overview and Summary
Lloyd v Google LLC was a case in which the Supreme Court considered the scope of the representative procedure under CPR rule 19.6. The case involved a claim by Richard Lloyd, on behalf of all Apple iPhone users in England and Wales, against Google LLC for breach of the Data Protection Act 1998. Lloyd sought to bring a representative action for damages, arguing that a uniform sum could be awarded to each class member without the need for individualised evidence. The Supreme Court considered the legal issues of whether damages could be awarded under the DPA 1998 without proof of material damage or distress, and whether individualised evidence was necessary to establish the extent of unlawful processing in each case. The Court concluded that compensation under the DPA 1998 could only be awarded for material damage or distress, and that individualised evidence was necessary to establish unlawful processing and the extent of any damage. The Supreme Court allowed the appeal, holding that the claim had no real prospect of success due to the necessity of individualised evidence for each class member.