Lloyd (Respondent) v Google LLC (Appellant)

Michaelmas Term

[2021] UKSC 50

On appeal from: [2019] EWCA Civ 1599

Lloyd (Respondent) v Google LLC (Appellant)

before

Lord Reed, President

JUDGMENT GIVEN ON

10 November 2021

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)

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 they number more than 4m.

3. Class actions, in which a single person is permitted to bring a claim and obtain

redress on behalf of a class of people who have been affected in a similar way by
alleged wrongdoing, have long been possible in the United States and, more recently,
in Canada and Australia. Whether legislation to establish a class action regime should
be enacted in the UK has been much discussed. In 2009, the Government rejected a
recommendation from the Civil Justice Council to introduce a generic class action
regime applicable to all types of claim, preferring a “sector based approach”. This was
for two reasons:

“Firstly, there are potential structural differences between of the likely economic and other impacts before implementing any reform.”

the sectors which will require different consideration. …

See the Government’s Response to the Civil Justice Council’s Report: “Improving
Access to Justice through Collective Actions” (2008), paras 12-13.

4. Since then, the only sector for which such a regime has so far been enacted is

that of competition law. Parliament has not legislated to establish a class action regime
in the field of data protection.

5. Mr Lloyd has sought to overcome this difficulty by what the Court of Appeal in

in rule 19.6 of the Civil Procedure Rules: see [2019] EWCA Civ 1599; [2020] QB 747,
para 7. This is a procedure of very long standing in England and Wales whereby a claim
can be brought by (or against) one or more persons as representatives of others who
have “the same interest” in the claim. Mr Lloyd accepts that he could not use this
procedure to claim compensation on behalf of other iPhone users if the compensation
recoverable by each user would have to be individually assessed. But he contends that
such individual assessment is unnecessary. He argues that, as a matter of law,
compensation can be awarded under the DPA 1998 for “loss of control” of personal
data without the need to prove that the claimant suffered any financial loss or mental
distress as a result of the breach. Mr Lloyd further argues that a “uniform sum” of
damages can properly be awarded in relation to each person whose data protection
rights have been infringed without the need to investigate any circumstances
particular to their individual case. The amount of damages recoverable per person
would be a matter for argument, but a figure of £750 was advanced in a letter of claim.

this case described as “an unusual and innovative use of the representative procedure” produce an award of damages of the order of £3 billion.

6.          Because Google is a Delaware corporation, the claimant needs the court’s

permission to serve the claim form on Google outside the jurisdiction. The application
for permission has been contested by Google on the grounds that the claim has no real
prospect of success as: (1) damages cannot be awarded under the DPA 1998 for “loss
of control” of data without proof that it caused financial damage or distress; and (2)
the claim in any event is not suitable to proceed as a representative action. In the High
Court Warby J decided both issues in Google’s favour and therefore refused permission
to serve the proceedings on Google: see [2018] EWHC 2599 (QB); [2019] 1 WLR 1265.
The Court of Appeal reversed that decision, for reasons given in a judgment of the
Chancellor, Sir Geoffrey Vos, with which Davis LJ and Dame Victoria Sharp agreed:
[2019] EWCA Civ 1599; [2020] QB 747.

7.          On this further appeal, because of the potential ramifications of the issues

raised, as well as hearing the claimant and Google, the court has received written and
oral submissions from the Information Commissioner and written submissions from

five further interested parties.

“Personal data shall be processed fairly and lawfully and, in

particular, shall not be processed unless -

(a)	at least one of the conditions in Schedule 2 is met, and
(b)	in the case of sensitive personal data, at least one of the conditions in Schedule 3 is also met.”

The other seven data protection principles, in summary, require personal data: (2) to be obtained and processed only for specified and lawful purposes; (3) to be “adequate, relevant, and not excessive” in relation to those purposes; (4) to be accurate and, where necessary, kept up to date; (5) not to be kept for longer than is necessary for those purposes; (6) to be processed in accordance with the rights of data subjects under the Act; (7) to be protected by appropriate technical and organisational security measures against unauthorised or unlawful processing and against accidental loss or destruction or damage; and (8) not to be transferred outside the European Economic Area unless the destination country or territory provides an adequate level of protection for data subjects in relation to the processing of personal data.

19.        As discussed in more detail below, section 13 of the DPA 1998 gives an

individual who suffers damage “by reason of any contravention by a data controller of any of the requirements of this Act” a right to compensation from the data controller for that damage.

member of the represented class in breach of the first, second and seventh data definition of the class is set out at para 19 of Warby J’s judgment.) Two principal allegations made are that, in breach of the first data protection principle, (i) the data obtained by placing the DoubleClick Ad cookie on each class member’s device were not processed fairly and (ii) none of the conditions in Schedule 2 (or 3) was met.
protection principles. The represented class consists in essence of everyone in England
and Wales who at the relevant time had an Apple iPhone on which Google’s

21.        Schedule 1, Part II, paragraph 2, provides, in substance, that personal data

obtained from the data subject are not to be treated as processed fairly unless the
data controller informs the data subject of the purpose for which the data are
intended to be processed - a requirement with which it is said that Google failed to
comply in this case.

22. Schedule 2 contains a list of conditions capable of justifying the processing of

data. To comply with the first data protection principle, at least one of these
conditions must be satisfied. The first condition in Schedule 2 is that “the data subject
has given his consent to the processing”. Other conditions are that the processing is
necessary for (amongst other things): the performance of a contract to which the data
subject is a party; or compliance with a legal obligation (other than a contractual
obligation) of the data controller; or to protect the vital interests of the data subject;
or for the exercise of any functions of a public nature exercised in the public interest
by any person. The claimant asserts that the members of the represented class whose
personal data Google processed had not given their consent to the processing, nor was
any of the other conditions capable of justifying the processing met. Hence for this
reason too Google was in breach of the first data protection principle.

(1)	Group Actions

24.        A group of people who wish to bring claims which give rise to common or

related issues of fact or law can apply to the court for a Group Litigation Order to be
made under CPR rule 19.11, providing for the claims to be managed together, usually
by a single designated judge. The Group Litigation Order will establish a register of the
claims included in the group, which is maintained by the claimants’ lead solicitor. The
order may also make provision for how the litigation costs are to be shared among the
claimants. How the claims are managed is a matter for the designated judge, but
procedures typically used are to select one or more claims to be tried as test claims
while the remaining claims are stayed and to decide as preliminary issues common
issues of law or fact which are potentially dispositive of the litigation. Unless the court
orders otherwise, a judgment given or order made in the litigation is binding on all the
claimants included in the group register: see CPR rule 19.12(1)(a).

25. Where the individual claims are of sufficiently high value, group actions can be

an effective way of enabling what are typically several hundred or thousands of claims
to be litigated and managed together, avoiding duplication of the court’s resources
and allowing the claimants to benefit from sharing costs and litigation risk and by
obtaining a single judgment which is binding in relation to all their claims. However,
the group action procedure suffers from the drawback that it is an “opt-in” regime: in
other words, claimants must take active steps to join the group. This has an
administrative cost, as a solicitor conducting the litigation has to obtain sufficient
information from a potential claimant to determine whether he or she is eligible to be
added to the group register, give appropriate advice and enter into a retainer with the
client. For claims which individually are only worth a few hundred pounds, this process

is not economic as the initial costs alone may easily exceed the potential value of the
claim.

26. Another limitation of opt-in proceedings is that experience has shown that only

a relatively small proportion of those eligible to join the group are likely to do so,
particularly if the number of people affected is large and the value of each individual
claim relatively small. For example, a group action was recently brought against the
Morrisons supermarket chain for compensation for breach of the DPA 1998 arising
from the disclosure on the internet by a Morrisons’ employee of personal data relating
to other employees. Of around 100,000 affected employees, fewer than 10,000 opted
to join the group action: see Various Claimants v Wm Morrisons Supermarkets plc
[2017] EWHC 3113 (QB); [2019] QB 772 (reversed on the issue of vicarious liability by
the Supreme Court: [2020] UKSC 12; [2020] AC 989). During the period of more than 12
years in which collective proceedings under the Competition Act 1998 (discussed
below) could be brought only on an opt-in basis just one action was commenced,
based on a finding of price fixing in the sale of replica football shirts. Although around
1.2 – 1.5m people were affected, despite widespread publicity only 130 people opted
into the proceedings: see The Consumers' Association v JJB Sports Plc [2009] CAT 2,
para 5; Civil Justice Council Report “Improving Access to Justice through Collective
Actions” (2008), Part 6, para 22; and Grave D, McIntosh M and Rowan G (eds), Class
Actions in England and Wales, 1st ed (2018), para 1-068.

27. Likely explanations for the low participation rates typically experienced in opt-in

regimes include lack of awareness of the opportunity to join the litigation and the
natural human tendency to do nothing when faced with a choice which requires
positive action - particularly if there is no immediate benefit to be gained and the
consequences are uncertain and not easy to understand: see eg Thaler R and Sunstein
C, Nudge: The Final Edition (2021), pp 36-38; Samuelson W and Zeckhauser R, “Status
Quo Bias in Decision Making” (1988) 1 Journal of Risk and Uncertainty 7-59. As the
New Zealand Court of Appeal has recently said of opt-in class actions:

“Whichever approach is adopted, many class members are Others will not understand the notice, or will have difficulty understanding what action they are required to take and completing any relevant form, or will be unsure or hesitant about what to do and will do nothing. Even where a class member considers that it is in their interests to participate in the proceedings, the significance of inertia in human affairs should not be underestimated.”

likely to fail to take any positive action for a range of reasons
that have nothing at all to do with an assessment of whether
or not it is in their interests to participate in the proceedings.

Ross v Southern Response Earthquake Services Ltd [2019] NZCA 431, para 98; approved by the New Zealand Supreme Court at [2020] NZSC 126, para 40.

28. A further factor which makes group litigation impractical in cases where the loss

suffered by each individual is small, even if in aggregate it may amount to a very large
sum of money, is the need to prove the quantum of loss in each individual case. Not
only are eligible individuals less likely to opt into the proceedings where the potential
gain to them is small, but the costs of obtaining evidence from each individual to
support their claim is again likely to make group litigation uneconomic in such cases.

available in the field of competition law offers significant advantages for claimants, particularly where many people have been affected by the defendant’s conduct but the value of each individual claim is small. Section 47B of the Competition Act 1998 (added by the Enterprise Act 2002 and as amended by the Consumer Rights Act 2015)

makes provision for bringing “collective proceedings” in the Competition Appeal (essentially, claims in respect of an infringement or alleged infringement of competition law). Such proceedings must be commenced by a person who proposes to be the representative of a specified class of persons, and the proceedings may only be continued if they are certified by the CAT as satisfying criteria set out in section 47B and in the CAT Rules. Two features of this regime may be noted.

30. First, unlike group litigation, collective proceedings may be brought on either an

“opt-in” or “opt-out” basis. “Opt-out” collective proceedings are proceedings brought
on behalf of each class member except any member who opts out by notifying the
class representative that their claim should not be included in the proceedings: see
section 47B(11). Where “opt-out” collective proceedings are permitted, a person may
therefore have a claim brought on their behalf without taking any affirmative step and,
potentially, without even knowing of the existence of the proceedings and the fact that
he or she is represented in them.

31.        A second significant feature of the collective proceedings regime is that it

enables liability to be established and damages recovered without the need to prove that members of the class have individually suffered loss: it is sufficient to show that loss has been suffered by the class viewed as a whole. This is the effect of section

47C(2) of the Competition Act, which provides:

“The tribunal may make an award of damages in collective
proceedings without undertaking an assessment of the
amount of damages recoverable in respect of the claim of
each represented person.”

Such an award of damages is referred to in the CAT Rules as “an aggregate award of damages”: see rule 73(2).

32. As Lord Briggs explained in Merricks v Mastercard [2020] UKSC 51; [2021] Bus LR

common law compensatory principle by removing the requirement to assess individual
loss”. This is so for the purposes both of making and of paying out an aggregate award
of damages. How an aggregate award of damages is distributed among the members
of the class is subject to the control of the CAT and, as this court held in Merricks v

25, at para 76, section 47C(2) of the Competition Act “radically alters the established 77, 149. No doubt in many cases a just method of distribution will be one which divides up an aggregate award of damages in a way which takes account of individual loss. But particularly where the size of the class is large and the amount of damages awarded small considered on a per capita basis, it may be impractical or disproportionate to adopt such a method. In such cases some other method of distribution, such as an equal division among all the members of the class, may be justified.

33. Collective proceedings are a recent phenomenon in English law. By contrast, the

representative procedure which the claimant is seeking to use in this case has existed
for several hundred years. The current version of the representative rule is CPR rule
19.6, which states:

“(1)	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.

(2)	The court may direct that a person may not act as a

representative.

(3)	Any party may apply to the court for an order under

paragraph (2).

(4) Unless the court otherwise directs any judgment or

order given in a claim in which a party is acting as a
representative under this rule -

(a)	is binding on all persons represented in the claim; but
(b)	may only be enforced by or against a person who is not a party to the claim with the permission of the court.”

(a)	Origins of the rule

34.        This rule has its origins in the procedure of the Court of Chancery before the

Judicature Act of 1873. The general rule was that all persons materially interested in the subject-matter of a suit should be made parties to it, either as claimants or defendants, so as to ensure that the rights of all persons interested were settled by a single judgment of the court: see eg Adair v New River Co (1805) 11 Ves Jr 429; 32 ER 1153; Cockburn v Thompson (1809) 16 Ves Jr 321; 33 ER 1005. However, to join all interested persons as parties was not always practically convenient - particularly if they were very numerous. The solution devised was not to abandon the aim of settling the rights of all interested persons in a single proceeding; rather, it was to relax the “complete joinder rule” by allowing one or more claimants or defendants to represent all others who had the same interest as them: see Sorabji J, “The hidden class action in English civil procedure” (2009) 28 CJQ 498. All persons represented in this way, as well as the parties actually before the court, were bound by the court’s decision.

35. In the very early cases in the 16th and 17th centuries in which this procedure

was adopted, the persons represented were invariably a cohesive communal group,
such as parishioners or manorial tenants, whose members had agreed to be
represented; and the representatives were often required to show proof of their
authority to represent the group. But as the nature of society changed and new, more
impersonal institutions such as friendly societies and joint stock companies with
multiple investors emerged, this requirement was dropped. The court allowed persons
to be represented whether or not they had consented to such representation or even
knew of the action, relying on community of interest among the members of the group
to ensure that the interests of all were adequately protected: see Yeazell, “From Group
Litigation to Class Action, Part I: The Industrialization of Group Litigation” (1980) 27
UCLA Law Review 514.

36. Many of the formative cases involved joint stock companies at a time (before

the Joint Stock Companies Acts 1844 to 1858) when such companies were not yet
recognised as separate legal entities which could sue or be sued. An action had
therefore to be brought by (or against) the members themselves. In Chancey v May
(1722) Precedents in Chancery 592; 24 ER 265, the treasurer and manager of a brass-
works brought an action on behalf of themselves and all other proprietors of the
undertaking, of whom there were 800 in total, except for the defendants, who were its
former managers, to call the defendants to account for alleged mismanagement and
embezzlement. The defendants objected that the claim should not be allowed to
proceed as the rest of the proprietors had not been made parties. The court dismissed
that objection on the grounds that, first, the action had been brought on behalf of all
the other proprietors, so that “all the rest were in effect parties”, and secondly:

“Because it would be impracticable to make them all parties
by name, and there would be continual abatements by death
and otherwise, and no coming at justice, if all were to be
made parties.”

37. Another notable case involving a joint stock company was Meux v Maltby (1818)

2 Swanston 277; 36 ER 621. In this case the treasurer and directors of the company
were sued as representative defendants on a contract made on behalf of all the
members of the company to grant a lease. In rejecting an argument that the claim was
defective because not all the proprietors were before the court, Plumer MR explained,
at pp 281-282:

“The general rule, which requires the plaintiff to bring before the court all the parties interested in the subject in question, admits of exceptions. The liberality of this court has long held that there is of necessity an exception to the general rule,

when a failure of justice would ensue from its enforcement.”

After citing numerous authorities, he concluded, at p 284:

“Here is a current of authority, adopting more or less a
general principle of exception, by which the rule, that all
persons interested must be parties, yields when justice
requires it, in the instance either of plaintiffs or defendants.
… It is quite clear that the present suit has sufficient parties,
and that the defendants may be considered as representing
the company.”

38.        In Duke of Bedford v Ellis [1901] AC 1, 8, Lord Macnaghten summarised the

practice of the Court of Chancery in this way:

“The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the

controversy. But when the parties were so numerous that
you never could ‘come at justice’, to use an expression in one
of the older cases, if everybody interested was made a party,
the rule was not allowed to stand in the way. It was originally
a rule of convenience: for the sake of convenience it was
relaxed. Given a common interest and a common grievance,
a representative suit was in order if the relief sought was in
its nature beneficial to all whom the plaintiff proposed to

represent.”

(b)	Effect of the Judicature Act

39.        By the Supreme Court of Judicature Act 1873, all the jurisdiction previously

exercised by the Court of Chancery and the courts of common law was transferred to
and vested in the new High Court of Justice. Rules of procedure for the High Court

were scheduled to the Act, which included as rule 10:

“Where there are numerous parties having the same interest
in one action, one or more of such parties may sue or be
sued, or may be authorised by the court to defend in such
action, on behalf or for the benefit of all parties so
interested.”

This rule became Order 16, rule 9 of the Rules of the Supreme Court and has remained in force in the same or similar form ever since. Save that the requirement for “numerous parties” has been reduced to “more than one”, there is no significant difference in the current version of the rule, quoted at para 33 above.

40. At first after the enactment of the Judicature Act the courts construed the new

rule narrowly. In Temperton v Russell [1893] 1 QB 435, 438, Lindley LJ, who gave the
judgment of the Court of Appeal, expressed the view that the rule only applied to
“persons who have or claim some beneficial proprietary right” which they are asserting
or defending in an action that would have come within the jurisdiction of the old Court
of Chancery; hence the rule did not apply to a claim for damages in tort. That view,
however, was repudiated by the House of Lords in Duke of Bedford v Ellis [1901] AC 1.
Six individuals sued the Duke of Bedford, who owned Covent Garden Market, on behalf
of themselves and all other growers of fruit, flowers, vegetables, roots and herbs, to
enforce certain preferential rights claimed under the Covent Garden Market Act 1828
to stands in the market. They sought declarations of the rights of the growers and an
injunction to restrain the Duke from acting inconsistently with those rights. They also
claimed - though only for themselves and not on behalf of other growers - an account
and repayment of sums charged to them for selling at the market in excess of what
they would have paid if afforded their alleged preferential rights. The Duke applied to
have the action stayed either on the ground that the claimants had no beneficial
proprietary right, or on the ground that the joinder in one action of parties claiming
separate and different rights under the Act, both personally and as representing a
class, would embarrass or delay the trial. The House of Lords rejected both grounds
(the first unanimously and the second by a majority of 3 to 2) and held that the action
could be maintained.

41.        Lord Macnaghten, who gave the leading speech, expressly disapproved the

restrictive view of the representative rule expressed in Temperton v Russell and
confirmed that its purpose was simply to apply the practice of the Court of Chancery to
all divisions of the High Court. The only change was therefore that the rule was now
applicable in actions which, before the Judicature Act, could only have been brought in

a court of common law. He said, at pp 10-11, that:

“… in all other respects I think the rule as to representative
suits remains very much as it was a hundred years ago. From
the time it was first established it has been recognised as a
simple rule resting merely upon convenience. It is impossible,
I think, to read such judgments as those delivered by Lord
Eldon in Adair v New River Co, in 1805, and in Cockburn v
Thompson, in 1809, without seeing that Lord Eldon took as
broad and liberal a view on this subject as anybody could
desire. ‘The strict rule’, he said, ‘was that all persons
materially interested in the subject of the suit, however
numerous, ought to be parties … but that being a general rule
established for the convenient administration of justice must
not be adhered to in cases to which consistently with
practical convenience it is incapable of application’. ‘It was
better’, he added, ‘to go as far as possible towards justice
than to deny it altogether’. He laid out of consideration the
case of persons suing on behalf of themselves and all others,
‘for in a sense’, he said, ‘they are before the Court’. As
regards defendants, if you cannot make everybody interested
a party, you must bring so many that it can be said they will
fairly and honestly try the right. I do not think, my Lords, that
we have advanced much beyond that in the last hundred
years …”

As Megarry J commented in John v Rees [1970] Ch 345, 370, this explanation made it plain that the representative rule is to be treated as being “not a rigid matter of principle but a flexible tool of convenience in the administration of justice”.

42. In Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC

426, 443, Lord Lindley (as he had become) went out of his way to endorse this view
and to retract his earlier observations in Temperton v Russell, stating:

Temperton v Russell have been happily corrected in this House in the Duke of Bedford v Ellis and in the course of the argument in the present case.”

“The principle on which the rule is based forbids its 25, and Order XVI, rule 9; and the unfortunate observations made on that rule in
restriction to cases for which an exact precedent can be
found in the reports. The principle is as applicable to new
cases as to old, and ought to be applied to the exigencies of
modern life as occasion requires. The rule itself has been
embodied and made applicable to the various Divisions of the

(c)	Markt and declarations of rights

43.        The subsequent decision of the Court of Appeal in Markt & Co Ltd v Knight

Steamship Co Ltd Common Law Legal Systems (2004) pp 78-82; Sorabji J, “The hidden class action in English civil procedure” (2009) 28 CJQ 498. I do not think, however, that the decision should be understood in this way. Markt was heard together with another action also brought against the owners of a cargo vessel which was intercepted by a Russian cruiser on a voyage to Japan during the Russo-Japanese war, on suspicion of carrying contraband of war, and sunk. Just before the limitation period expired, two cargo- owners issued writs “on behalf of themselves and others owners of cargo lately laden on board” the vessel, claiming “damages for breach of contract and duty in and about the carriage of goods by sea”. No further particulars of the claims were given.

[1910] 2 KB 1021 has sometimes been seen as undermining the
broad and flexible view of the representative rule adumbrated by the House of Lords in
these two cases by imposing significant constraints on its use: see eg Esanda Finance

44.        All three members of the Court of Appeal agreed that the claims as formulated

could not be pursued as representative actions as there was no basis for asserting that all the cargo owners had the same interest in the actions. That was so if only because a claim that the shipowners were in breach of duty in carrying contraband goods plainly could not be maintained on behalf of any cargo-owners who had themselves shipped such goods; furthermore, each cargo owner would need to prove their individual loss. Buckley LJ would have allowed the claimants to amend their writs and continue the
proceedings on behalf of themselves and all cargo-owners who were not shippers of
contraband goods, claiming a declaration that the defendants were in breach of
contract and duty in shipping contraband of war. The other judges, however, did not
agree to this course. Vaughan Williams LJ, at p 1032, rejected it on the grounds that
the proposed amendment had not been brought before the court in a way which gave
a proper opportunity for argument and doubted anyway whether the amendment
could be so framed as to disclose a common purpose of the shippers or any class of the
shippers. Fletcher Moulton LJ, at p 1042, considered that making a declaration of the
type suggested would be contrary to the practice of the courts and that subsequent
claims by individual cargo-owners relying on such a declaration to recover damages
would constitute new claims which would be time-barred, as the limitation period had
now expired.

45.        The readiness of English courts to give judgments declaring legal rights where it

would serve a useful purpose has much increased since 1910. An important step was the decision of the Court of Appeal in Guaranty Trust Co of New York v Hannay & Co [1915] 2 KB 536, which held that a declaration can be granted at the instance of a

51. In Pan Atlantic Insurance Co Ltd v Pine Top Insurance Co Ltd [1989] 1 Lloyd’s Rep

which had reinsured on a quota share basis a proportion of the risks they had
underwritten, claiming under contracts which provided excess of loss reinsurance
cover for the claimants and their quota share reinsurers. The Court of Appeal rejected
an argument that the claimants were not entitled to sue in a representative capacity. It
made no difference that there was a dispute between one of the claimants and some
members of the syndicate about the validity of the quota share reinsurance, since as

(d)	Claims for damages

49.        In the cases so far mentioned where claims were held to come within the scope

of the representative rule, the relief claimed on behalf of the represented class was damages are “a personal relief” and that:
limited to a declaration of legal rights. It was accepted or held that the named
claimants could only claim damages or other monetary relief in their personal capacity.

“no representative action can lie where the sole relief sought is damages, because they have to be proved separately in the case of each plaintiff, and therefore the possibility of

representation ceases.”

50. In many cases, of which Markt was one, it is clearly correct that the assessment

of damages depends on circumstances personal to each individual claimant. In such
cases it is unlikely to be practical or fair to assess damages on a common basis and
without each individual claimant’s participation in the proceedings. However, this is
not always so, and representative actions for damages have sometimes been allowed.
For example, in the case of insurance underwritten by Lloyd’s syndicates, which are
not separate legal entities, it is standard practice for a single member of the syndicate
(usually the leading underwriter) to be named as a representative claimant or
defendant suing, or being sued, for themselves and all the other members. There is no
difficulty in awarding damages for or against the representative in such proceedings, as
the calculation of any damages which the members of the syndicate are collectively
entitled to recover or liable to pay does not depend on how the risk is divided among
the members of the syndicate.

568 the claimant companies sued on behalf of themselves and members of a syndicate against the defendants; not whether they have the same interest as between themselves”.

52.        In Irish Shipping Ltd v Commercial Union Assurance Co plc (The “Irish Rowan”)

[1991] 2 QB 206 numerous insurers had subscribed in various proportions to a policy of para 31.
marine insurance. The Court of Appeal accepted that, as a matter of law, each
subscription constituted a separate contract of insurance (of which there were said to
be 77 in all). Claims for losses allegedly covered by the policy were made by suing two
of the insurers as representative defendants. The Court of Appeal rejected an
argument that claims for debt or damages could not be included in a representative
action, merely because they are made by numerous claimants individually or resisted
by numerous defendants individually, and held that the action could continue as a
representative action. While the policy terms contained a broadly worded leading
underwriter clause, the presence of this clause was not essential to the decision: see
Bank of America National Trust and Savings Association v Taylor (The Kyriaki) [1992] 1

53.        In EMI Records Ltd v Riley [1981] 1 WLR 923, and in Independiente Ltd v Music

Trading On-Line (HK) Ltd [2003] EWHC 470 (Ch), the claimants sued in a representative capacity on behalf of all members of the British Phonographic Industry Ltd (“BPI”), a trade association for the recorded music industry (and also in the latter case on behalf of Phonographic Performance Ltd), claiming damages for breach of copyright in selling pirated sound recordings. In each case the claims were allowed to proceed as representative actions. Because it was accepted or could safely be assumed that the owner of the copyright in any pirated recording was a member of the represented class, this procedure enabled breach of copyright to be proved and damages to be awarded without the need to prove which particular pirated recordings had been sold in what quantities. Again, what mattered was that the members of the class had a community of interest in suing the defendant.

54. In EMI Records it was asserted, and not disputed by the defendants, that the

members of the BPI had consented to all sums recovered in actions for breach of
copyright being paid to the BPI: see [1981] 1 WLR 923, 925. In Independiente, however,
this assertion was disputed and Morritt V-C found that there was no binding
agreement that any money recovered should go to the BPI: see [2003] EWHC 470 (Ch),
paras 16 and 28. He nevertheless held, at paras 28 and 39, that the claim was properly
brought as a representative action, observing that what the claimants did with any
damages recovered was a matter for them or between them, the BPI and the class
members, and not between them and the defendants.

55.        Although not cited in these cases, the same point had been made long before in

Warrick v Queen’s College Oxford (No 4) (1871) LR 6 Ch App 716, 726, where Lord
Hatherley LC gave an example of:

“classes of shareholders in a railway company who have different rights inter se, but they may all have a common enemy in the shape of a fraudulent director, and they may all

join, of course, in one common suit against that director, although after the common right is established they may have a considerable litigation among themselves as to who
are the persons entitled to the gains obtained through that
suit.”

While the right enforced in such a common suit would in modern company law be seen as a right belonging to the company itself, rather than its shareholders, it is clear from the context that Lord Hatherley had in mind a representative action brought on behalf of shareholders, as he gave this analogy to explain how in that case a representative claim could be brought on behalf of all the freehold tenants of a manor to establish common rights against the lord of the manor even though different tenants or classes of tenant had different rights as between themselves.

(e)	Emerald Supplies

56.        In giving the Court of Appeal’s judgment in the present case, the Chancellor, at

[2020] QB 747, para 73, focused on Emerald Supplies Ltd v British Airways plc [2010] EWCA Civ 1284; [2011] Ch 345 as providing the latest authoritative interpretation of the representative rule. The decision in that case turned, however, on the particular way in which the class of represented persons had been defined. The claimants alleged
that the defendant airline was a party to agreements or concerted practices with other that, in the way the class had been defined, the issue of liability would have to be decided before it could be known whether or not a person was a member of the represented class and therefore bound by the judgment: see paras 62-63 and 65. Such an approach would not be just, not least because, if the claim failed, no purchasers of air freight services apart from the named claimants would be bound by the result.
airlines to fix prices for air freight charged for importing cut flowers into the UK. They
claimed on behalf of all “direct or indirect purchasers of air freight services, the prices
for which were inflated by the agreements or concerted practices”, a declaration that
damages were recoverable in principle from the defendant by those purchasers. The

57. The Court of Appeal in Emerald Supplies also considered that a second difficulty

with the class definition was that the members of the represented class did not all
have the same interest in the claim, as there was a conflict of interest between direct
and indirect purchasers of air freight services: see paras 28-29 and 64. If it was shown
that prices had been inflated by agreements or concerted practices to which the
defendant was a party, it would be in the interests of direct purchasers to seek to
prove that they had absorbed the higher prices in order to avoid a potential defence
that they had suffered no loss because the higher prices had been passed on to
“indirect purchasers” (understood to include sub-purchasers). On the other hand, it
would be in the interests of such indirect purchasers to seek to prove that the higher
prices had indeed been passed on to them.

58. It seems to me that this second difficulty might have been avoided either by

altering the class definition to exclude sub-purchasers or by following the approach
adopted in Prudential of claiming a declaration that those members of the class who
had suffered damage as a result of the alleged price fixing were entitled to damages.
However, those possibilities do not appear to have been considered. I think that the
judge in Rendlesham Estates plc v Barr Ltd [2014] EWHC 3968 (TCC); [2015] 1 WLR
3663 - a case relied on by Google on this appeal - was therefore wrong to conclude
from Emerald Supplies, at para 90, that “if damage is an ingredient of the cause of
action a representative claim could not be maintained”. The Court of Appeal in
Emerald Supplies did not doubt the correctness of the Prudential decision, where a
representative claim was allowed to proceed although damage was an ingredient of
the cause of action. As Professor Rachael Mulheron, a leading expert in this field, has
persuasively argued, it should likewise have been possible in Emerald Supplies to adopt
a bifurcated process in which the questions whether prices had been inflated by
agreements or concerted practices and whether passing on was in principle available
as a defence were decided in a representative action. If successful, this action could
then have formed the basis for further proceedings to prove the fact and amount of
damage in individual cases: see Mulheron R, “Emerald Supplies Ltd v British Airways
plc; A Century Later, The Ghost of Markt Lives On” [2009] Comp Law 159, 171.

(f)	Commonwealth cases

59. The highest courts of Australia, Canada and New Zealand have all adopted a

broad and flexible approach in interpreting representative rules derived from the
English rule.

(i)         Australia

60.        In Carnie v Esanda Finance Corpn Ltd (1994) 127 ALR 76 the High Court of

Australia held that the fact that the claims arose under separate contracts did not prevent the named claimants and the persons represented from having “the same interest” in proceedings. It was enough to satisfy this requirement that there was a community of interest in the determination of a substantial question of law or fact that
arose in the proceedings. Commenting on an argument that the representative rule
was an inadequate basis for a “class action”, which required a comprehensive
legislative regime, Toohey and Gaudron JJ (with whom Mason CJ, Deane and Dawson JJ

generally agreed) said, at p 91:

“... it is true that rule 13 lacks the detail of some other rules it to be treated as a flexible rule of convenience in the administration of justice and applied ‘to the exigencies of modern life as occasion requires’. The court retains the power to reshape proceedings at a later stage if they become impossibly complex or the defendant is prejudiced.”

of court. But there is no reason to think that the Supreme
Court of New South Wales lacks the authority to give
directions as to such matters as service, notice and the
conduct of proceedings which would enable it to monitor and
finally to determine the action with justice to all concerned.

(ii)        Canada

61. In Western Canadian Shopping Centres Inc v Dutton [2001] 2 SCR 534, paras 38-

48, the Supreme Court of Canada held that representative actions should be allowed
to proceed where the following conditions are met: (1) the class is capable of clear
definition; (2) there are issues of fact or law common to all class members; (3) success
for one class member means success for all (although not necessarily to the same
extent); and (4) the proposed representative adequately represents the interests of
the class. If these conditions are met the court must also be satisfied, in the exercise of
its discretion, that there are no countervailing considerations that outweigh the
benefits of allowing the representative action to proceed. The Supreme Court held that
the conditions were met by the claimants in Dutton, who sued as representatives of a
group of investors complaining that the defendant had breached fiduciary duties to the
investors by mismanaging their funds.

Southern Response Earthquake Services Ltd v Ross

62.        Giving the judgment of the court, McLachlin CJ, at para 47, distinguished its

earlier decision in General Motors of Canada Ltd v Naken [1983] 1 SCR 72, where a
representative action had been disallowed. In Naken the action was brought on behalf
of purchasers of new Firenza motor vehicles against the manufacturer, complaining
that the quality of the vehicles had been misrepresented or was not as warranted in
advertisements, other published materials and contracts which were partly oral and
partly written. Damages were claimed limited to $1,000 per person. The claims were
held to be unsuitable for resolution through a representative action, principally
because determining both liability and damages would have required particularised
evidence and fact-finding in relation to each individual purchaser.

63. McLachlin CJ also commented, at para 46, that over the period since Naken was

decided the benefits of class actions had become manifest. She identified, at paras 27-
29, three important advantages which such actions offer over a multiplicity of
individual suits: (1) avoiding unnecessary duplication in fact-finding and legal analysis;
(2) making economical the prosecution of claims that would otherwise be too costly to
prosecute individually; and (3) serving efficiency and justice by ensuring that actual

and potential wrongdoers who cause widespread but individually minimal harm take
into account the full costs of their conduct.

64.        McLachlin CJ further observed, at para 34, that, while it would clearly be

advantageous if there existed a comprehensive legislative framework regulating class
actions, in its absence “the courts must fill the void”.

(iii)       New Zealand

65.        The Supreme Court of New Zealand has recently considered the use of the

representative procedure in [2020] policyholders who had settled insurance claims for damage to their homes caused by earthquakes in the Canterbury region of New Zealand. The claimants alleged that the policyholders had been misled by the insurers about the cost of remedying the damage, with the result that they had settled their claims on a less favourable basis than otherwise would have been the case. The insurers did not oppose the action being brought on a representative basis, but argued that the class represented should be limited to policyholders who completed a form electing to opt into the proceedings. It was agreed that the proceedings would need to be heard in two stages. The first stage would deal with issues common to all members of the represented class. If the claimants succeeded at that stage in whole or in part, there would need to be a second stage, in which questions of relief were addressed. It was also agreed that, at the second stage, it would be necessary for all of the policyholders represented to take active steps - that is, to opt in - if they wished to establish their individual claims.

66.        The New Zealand Supreme Court affirmed the decision of the Court of Appeal

that the claim should be allowed to continue on an opt out basis. In doing so, the the absence of a statutory framework and gave guidance on various matters relating to supervision of opt out representative proceedings.

(g)	Principles governing use of the representative procedure

67.        Although the world has changed out of all recognition since the representative

procedure was devised by the Court of Chancery, it has done so in ways which have made the problems to which the procedure provided a solution more common and often vastly bigger in scale. The mass production of goods and mass provision of
services have had the result that, when legally culpable conduct occurs, a very large
group of people, sometimes numbering in the millions, may be affected. As the
present case illustrates, the development of digital technologies has added to the
potential for mass harm for which legal redress may be sought. In such cases it is
necessary to reconcile, on the one hand, the inconvenience or complete impracticality
of litigating multiple individual claims with, on the other hand, the inconvenience or
complete impracticality of making every prospective claimant (or defendant) a party to
a single claim. The only practical way to “come at justice” is to combine the claims in a
single proceeding and allow one or more persons to represent all others who share the
same interest in the outcome. When trying all the individual claims is not feasible, the
adages of Lord Eldon quoted by Lord Macnaghten in Ellis remain as pertinent as ever:
that it is better to go as far as possible towards justice than to deny it altogether and
that, if you cannot realistically make everybody interested a party, you should ensure
that those who are parties will “fairly and honestly try the right”.

68. I agree with the highest courts of Australia, Canada and New Zealand that, while

a detailed legislative framework would be preferable, its absence (outside the field of
competition law) in this country is no reason to decline to apply, or to interpret
restrictively, the representative rule which has long existed (and has had a legislative
basis since 1873). I also agree with the view expressed in Carnie that the very simplicity
of the representative rule is in some respects a strength, allowing it to be treated as “a
flexible tool of convenience in the administration of justice” and “applied to the
exigencies of modern life as occasion requires”.

(i)         The “same interest” requirement

69.        In its current form in CPR rule 19.6 the rule imposes no limit (either as a

minimum or maximum) on the number of people who may be represented. Only one condition must be satisfied before a representative claim may be begun or allowed to continue: that is, that the representative has “the same interest” in the claim as the
person(s) represented.

70.        The phrase “the same interest” is capable of bearing a range of meanings and

Smith v Cardiff Corpn [1954] 1 QB 210. Such an approach seems to me misguided. It is clear from the context that Lord Macnaghten was not attempting to define “the same interest”, but to convey how limiting the rule to persons having a beneficial proprietary interest in the claim would be contrary to the old practice in the Court of Chancery. More profoundly, such a reading of Lord Macnaghten’s speech shows precisely the rigidity of approach to the application of the representative rule which he disparaged.
requires interpretation. In interpreting the phrase, reference has often been made to common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent.” This statement has sometimes been treated as if it were a definition imposing a tripartite test: see eg

71. The phrase “the same interest”, as it is used in the representative rule, needs to

be interpreted purposively in light of the overriding objective of the civil procedure
rules and the rationale for the representative procedure. The premise for a
representative action is that claims are capable of being brought by (or against) a
number of people which raise a common issue (or issues): hence the potential and
motivation for a judgment which binds them all. The purpose of requiring the
representative to have “the same interest” in the claim as the persons represented is
to ensure that the representative can be relied on to conduct the litigation in a way
which will effectively promote and protect the interests of all the members of the
represented class. That plainly is not possible where there is a conflict of interest
between class members, in that an argument which would advance the cause of some
would prejudice the position of others. Markt and Emerald Supplies are both examples
of cases where it was found that the proposed representative action, as formulated,
could not be maintained for this reason.

72.        As Professor Adrian Zuckerman has observed in his valuable book on civil

procedure, however, a distinction needs to be drawn between cases where there are Professor Zuckerman also points out, concerns which may once have existed about whether the representative party could be relied on to pursue vigorously lines of argument not directly applicable to their individual case are misplaced in the modern context, where the reality is that proceedings brought to seek collective redress are not normally conducted and controlled by the nominated representative, but rather are typically driven and funded by lawyers or commercial litigation funders with the representative party merely acting as a figurehead. In these circumstances, there is no reason why a representative party cannot properly represent the interests of all members of the class, provided there is no true conflict of interest between them.

conflicting interests between class members and cases where there are merely
divergent interests, in that an issue arises or may well arise in relation to the claims of
(or against) some class members but not others. So long as advancing the case of class
members affected by the issue would not prejudice the position of others, there is no
reason in principle why all should not be represented by the same person: see

73. This purposive and pragmatic interpretation of the requirement is exemplified

by The “Irish Rowan”, where Staughton LJ, at pp 227-228, noted that some of the
insurers might wish to resist the claim on a ground that was not available to others. He
rightly did not regard that circumstance as showing that all the insurers did not have
“the same interest” in the action, or that it was not within the rule, and had “no
qualms about a proceeding which allows that ground to be argued on their behalf by
others”.

74. Even if it were considered inconsistent with the “same interest” requirement, or

otherwise inappropriate, for a single person to represent two groups of people in
relation to whom different issues arise although there is no conflict of interest
between them, any procedural objection could be overcome by bringing two (or more)
representative claims, each with a separate representative claimant or defendant, and
combining them in the same action.

(ii)        The court’s discretion

75. Where the same interest requirement is satisfied, the court has a discretion

whether to allow a claim to proceed as a representative action. As with any power
given to it by the Civil Procedure Rules, the court must in exercising its discretion seek
to give effect to the overriding objective of dealing with cases justly and at
proportionate cost: see CPR rule 1.2(a). Many of the considerations specifically
included in that objective (see CPR rule 1.1(2)) - such as ensuring that the parties are
on an equal footing, saving expense, dealing with the case in ways which are
proportionate to the amount of money involved, ensuring that the case is dealt with
expeditiously and fairly, and allotting to it an appropriate share of the court’s
resources while taking into account the need to allot resources to other cases - are
likely to militate in favour of allowing a claim, where practicable, to be continued as a
representative action rather than leaving members of the class to pursue claims
individually.

76.        Four further features of the representative rule deserve mention.

(iii)       No requirement of consent

77.        First, as the ability to act as a representative under the rule does not depend on

the consent of the persons represented but only on community of interest between them, there is ordinarily no need for a member of the represented class to take any positive step, or even to be aware of the existence of the action, in order to be bound
by the result. The rule does not confer a right to opt out of the proceedings (though a
person could, at least in theory, apply to the court for a direction under rule 19.6(3)
that the named claimant (or defendant) may not represent them or under rule 19.6(4)
that any judgment given will not be binding on them). It is, however, always open to
the judge managing the case to impose a requirement to notify members of the class
of the proceedings and establish a simple procedure for opting out of representation, if
this is considered desirable. Equally, if there are circumstances which make it
appropriate to limit the represented class to persons who have positively opted into
the litigation, it is open to the judge to make this a condition of representation. The
procedure is entirely flexible in these respects.

(iv)       The class definition

78. Second, while it is plainly desirable that the class of persons represented should

be clearly defined, the adequacy of the definition is a matter which goes to the court’s
discretion in deciding whether it is just and convenient to allow the claim to be
continued on a representative basis rather than being a precondition for the
application of the rule. Emerald Supplies illustrates a general principle that
membership of the class should not depend on the outcome of the litigation. Beyond
that, whether or to what extent any practical difficulties in identifying the members of
the class are material must depend on the nature and object of the proceedings. In
Duke of Bedford v Ellis, for example, it did not matter that the number and identities of
growers of fruit etc would have been difficult if not impossible to ascertain or that the
class was a fluctuating one: given that the aim was to establish whether anyone who
was a grower had preferential rights, all that mattered was that there would be no real
difficulty in determining whether a particular person who claimed a preferential right
to a vacant stand at Covent Garden was a grower or not: see [1901] AC 1 at 11. In
some cases, however, for example where the viability of a claim for damages depends
on demonstrating the size of the class or who its members are, such practical
difficulties might well be significant.

(v)        Liability for costs

79. Third, as persons represented by a representative claimant or defendant will

not normally themselves have been joined as parties to the claim, they will not
ordinarily be liable to pay any costs incurred by the representative in pursuing (or
defending) the claim. That does not prevent the court, if it is in the interests of justice
to do so, from making an order requiring a represented person to pay or contribute to
costs and giving permission for the order to be enforced against that person pursuant
to CPR rule 19.6(4)(b). Alternatively, such an order could be made pursuant to the
general jurisdiction of the court to make costs orders against non-parties. It is difficult,
however, to envisage circumstances in which it could be just to order a represented
person to contribute to costs incurred by a claimant in bringing a representative claim
which the represented person did not authorise. On the other hand, a commercial
litigation funder who finances unsuccessful proceedings is likely to be ordered to pay
the successful party’s costs at least to the extent of the funding: see Davey v Money
[2020] EWCA Civ 246; [2020] 1 WLR 1751. That principle is no less applicable where the
proceedings financed are a representative action.

(vi)       The scope for claiming damages

80. Finally, as already discussed, it is not a bar to a representative claim that each

represented person has in law a separate cause of action nor that the relief claimed
consists of or includes damages or some other monetary relief. The potential for
claiming damages in a representative action is, however, limited by the nature of the
remedy of damages at common law. What limits the scope for claiming damages in
representative proceedings is the compensatory principle on which damages for a civil
wrong are awarded with the object of putting the claimant - as an individual - in the
same position, as best money can do it, as if the wrong had not occurred. In the
ordinary course, this necessitates an individualised assessment which raises no
common issue and cannot fairly or effectively be carried out without the participation
in the proceedings of the individuals concerned. A representative action is therefore
not a suitable vehicle for such an exercise.

81.        In cases where damages would require individual assessment, there may

nevertheless be advantages in terms of justice and efficiency in adopting a bifurcated
process - as was done, for example, in the Prudential case - whereby common issues of
law or fact are decided through a representative claim, leaving any issues which
require individual determination - whether they relate to liability or the amount of
damages - to be dealt with at a subsequent stage of the proceedings. In Prudential
[1981] Ch 229, 255, Vinelott J expressed the view (obiter) that time would continue to
run for the purpose of limitation until individual claims for damages were brought by
the persons represented; see also the dicta of Fletcher Moulton LJ in Markt [1910] 2 KB
1021, 1042, referred to at para 44 above. The court in Prudential did not have cited to
it, however, the decision of the Court of Appeal in Moon v Atherton [1972] 2 QB 435. In
that case a represented person applied to be substituted for the named claimant after
the limitation period had expired when the claimant (and all the other represented
persons) no longer wished to continue the action. The Court of Appeal, in allowing the
substitution, held that the defendant was not thereby deprived of a limitation defence,
as for the purpose of limitation the represented person was already a party to the
action, albeit not a “full” party. It might be clearer to say that, although the
represented person did not become a “party” until substituted as the claimant, an
action was brought within the meaning of the statute of limitation by that person
when the representative claim was initiated. Such an analysis has been adopted in
Australia, including by the New South Wales Court of Appeal in Fostif Pty Ltd v
Campbells Cash & Carry Pty Ltd [2005] NSWCA 83; (2005) 63 NSWLR 203, and by the
New Zealand Supreme Court in Credit Suisse Private Equity v Houghton [2014] NZSC 37.

82.        There is no reason why damages or other monetary remedies cannot be

claimed in a representative action if the entitlement can be calculated on a basis that is charged a fixed fee; another example might be a claim alleging that all the class members acquired the same product with the same defect which reduced its value by the same amount. In such cases the defendant’s monetary liability could be determined as a common issue and no individualised assessment would be needed. The same is true where loss suffered by the class as a whole can be calculated without reference to the losses suffered by individual class members - as in the cases mentioned at para 53 above. Such an assessment of loss on a global basis is sometimes described as a “top down” approach, in contrast to a “bottom up” approach of assessing a sum which each member of the class is individually entitled to recover.

common to all the members of the class. Counsel for the claimant, Hugh Tomlinson

83. The recovery of money in a representative action on either basis may give rise

to problems of distribution to the members of the class, about which the
representative rule is silent. Although in Independiente Morritt V-C was untroubled by
such problems, questions of considerable difficulty would arise if in the present case
the claimant was awarded damages in a representative capacity with regard to how
such damages should be distributed, including whether there would be any legal basis
for paying part of the damages to the litigation funders without the consent of each
individual entitled to them: see Mulheron R, “Creating and Distributing Common Funds
under the English Representative Rule” (2021) King’s Law Journal 1-33. Google has not
relied on such difficulties as a reason for disallowing a representative action, however,
and as these matters were only touched on in argument, I will say no more about
them.

embodied in articles 7 and 8 of the EU Charter the EU had a positive obligation to
establish a legislative framework providing for protection of personal data, there was
clearly a wide margin of choice as to the particular regime adopted; and the same
applies to the positive obligation imposed directly on the UK by the Convention. It
could not seriously be argued that the content of those positive obligations included a
requirement to establish a right to receive compensation for any (non-trivial) breach of
any requirement (in relation to any personal data of which the claimant is the subject)
of whatever legislation the EU and UK chose to enact in this area without the need to
prove that the claimant suffered any material damage or distress as a result of the
breach.

129. Accordingly, the fact that the common law privacy tort and the data protection

legislation have a common source in article 8 of the Convention does not justify
reading across the principles governing the award of damages from one regime to the
other.

(d)	Material differences between the regimes

130.     There are further reasons why no such analogy can properly be drawn

Gulati that the claimants were entitled to compensation for the commission of the wrong itself. It cannot properly be inferred that the same entitlement should arise where a reasonable expectation of privacy is not a necessary element of the claim.
stemming from the differences between the two regimes. It is plain that the detailed than the English domestic tort of misusing private information. An important difference is that the Directive (and the UK national legislation implementing it) applied to all “personal data” with no requirement that the data are of a confidential or private nature or that there is a reasonable expectation of privacy protection. By contrast, information is protected against misuse by the domestic tort only where there is a reasonable expectation of privacy. The reasonable expectation of privacy of the communications illicitly intercepted by the defendants in the phone hacking litigation was an essential element of the decision in
scheme for regulating the processing of personal data established by the Data

131.     This point goes to the heart of the approach adopted by the claimant in the

present case. Stripped to its essentials, what the claimant is seeking to do is to claim for each member of the represented class a form of damages the rationale for which depends on there being a violation of privacy, while avoiding the need to show a
violation of privacy in the case of any individual member of the class. This is a flawed
endeavour.

132. Another significant difference between the privacy tort and the data protection

legislation is that a claimant is entitled to compensation for a contravention of the
legislation only where the data controller has failed to exercise reasonable care. Some
contraventions are inherently fault based. For example, the seventh data protection
principle with which a data controller has a duty to comply pursuant to section 4(4) of
the DPA 1998 (and article 17 of the Data Protection Directive) states:

“Appropriate technical and organisational measures shall be
taken against unauthorised or unlawful processing of
personal data and against accidental loss or destruction of, or
damage to, personal data.”

A complaint that a data controller has failed to take such “appropriate technical and organisational measures” is similar to an allegation of negligence in that it is predicated on failure to meet an objective standard of care rather than on any intentional conduct. Even where a contravention of the legislation does not itself require fault, pursuant to section 13(3), quoted at para 90 above, there is no entitlement to compensation if the data controller proves that it took “such care as in all the circumstances was reasonably required to comply with the requirement concerned”.

133. The privacy tort, like other torts for which damages may be awarded without

proof of material damage or distress, is a tort involving strict liability for deliberate
acts, not a tort based on a want of care. No inference can be drawn from the fact that
compensation can be awarded for commission of the wrong itself where private
information is misused that the same should be true where the wrong may consist only
in a failure to take appropriate protective measures and where the right to
compensation is expressly excluded if the defendant took reasonable care.

134. Indeed, this feature of the data protection legislation seems to me to be a yet

further reason to conclude that the “damage” for which an individual is entitled to
compensation for a breach of any of its requirements does not include the commission
of the wrong itself. It would be anomalous if failure to take reasonable care to protect
personal data gave rise to a right to compensation without proof that the claimant
suffered any material damage or distress when failure to take care to prevent personal
injury or damage to tangible moveable property does not.

135. Accordingly, I do not accept that the decision in Gulati is applicable by analogy

to the DPA 1998. To the contrary, there are significant differences between the privacy
tort and the data protection legislation which make such an analogy positively
inappropriate.

(e)	Equivalence and effectiveness

136.     I add for completeness that the EU law principles of equivalence and

effectiveness, on which the Court of Appeal placed some reliance, do not assist the
claimant’s case. The principle of equivalence requires that procedural rules governing
claims for breaches of EU law rights must not be less favourable than procedural rules
governing equivalent domestic actions. As explained by Lord Briggs, giving the
judgment of this court, in Totel Ltd v Revenue and Customs Comrs [2018] UKSC 44;
[2018] 1 WLR 4053, para 7, the principle is “essentially comparative”. Thus:

“The identification of one or more similar procedures for the enforcement of claims arising in domestic law is an essential prerequisite for its operation. If there is no true comparator, then the principle of equivalence can have no operation at

all. The identification of one or more true comparators is therefore the essential first step in any examination of an assertion that the principle of equivalence has been
infringed.” [citation omitted]

For the reasons given, even if the measure of damages is regarded as a procedural rule, a claim for damages for misuse of private information at common law is not a true comparator of a claim under section 13 of the DPA 1998. The principle of

equivalence can therefore have no operation.

137. The principle of effectiveness invalidates a national procedure if it renders the

enforcement of a right conferred by EU law either virtually impossible or excessively
difficult: see again Totel Ltd at para 7. However, the absence of a right to
compensation for a breach of data protection rights which causes no material damage
or distress, even if regarded as a procedural limitation, does not render the
enforcement of such rights virtually impossible or excessively difficult. The right to an
effective remedy does not require awards of compensation for every (non-trivial)
breach of statutory requirements even if no material damage or distress has been
suffered.

(f)	Conclusion on the effect of section 13

138.     For all these reasons, I conclude that section 13 of the DPA 1998 cannot

reasonably be interpreted as conferring on a data subject a right to compensation for any (non-trivial) contravention by a data controller of any of the requirements of the Act without the need to prove that the contravention has caused material damage or distress to the individual concerned.

awarded in tort where use has wrongfully been made of someone else’s land or
tangible moveable property although there has been no financial loss or physical
damage to the property. The damages are assessed by estimating what a reasonable
person would have paid for the right of user. Damages are also available on a similar
basis for patent infringement and other breaches of intellectual property rights.
Following the seminal decision of this court in OneStep (Support) Ltd v Morris-Garner
[2018] UKSC 20; [2019] AC 649, it is now clear that user damages are compensatory in
nature, their purpose being to compensate the claimant for interference with a right to
control the use of property where the right is a commercially valuable asset. As Lord

Reed explained in Morris-Garner, at para 95(1):

“The rationale of such awards is that the person who makes
wrongful use of property, where its use is commercially
valuable, prevents the owner from exercising a valuable right
to control its use, and should therefore compensate him for
the loss of the value of the exercise of that right. He takes
something for nothing, for which the owner was entitled to
require payment.”

140. Lord Reed, at paras 27 and 29, cited authorities which make it clear that the

entitlement to user damages does not depend on whether the owner would in fact
have exercised the right to control the use of the property, had it not been interfered
with. The “loss” for which the claimant is entitled to compensation is not loss of this
“conventional kind” (para 30); rather, it lies in the wrongful use of the claimant’s
property itself, for which the economic value of the use provides an appropriate
measure. This value can be assessed by postulating a hypothetical negotiation and
estimating what fee would reasonably have been agreed for releasing the defendant
from the duty which it breached. It is this method of assessment on which the claimant
relies in the alternative formulation of the present claim.

141. A claim in tort for misuse of private information based on the factual allegations

made in this case, such as was made in Vidal-Hall, would naturally lend itself to an
award of user damages. The decision in Gulati shows that damages may be awarded
for the misuse of private information itself on the basis that, apart from any material
damage or distress that it may cause, it prevents the claimant from exercising his or
her right to control the use of the information. Nor can it be doubted that information
about a person’s internet browsing history is a commercially valuable asset. What was
described by the Chancellor in the Court of Appeal [2020] QB 747, para 46, as “the
underlying reality of this case” is that Google was allegedly able to make a lot of money
by tracking the browsing history of iPhone users without their consent and selling the
information collected to advertisers.

142. The view has sometimes been expressed that asserting privacy in information is inconsistent, or at least in tension, with treating such information as a commercial asset: see eg Douglas v Hello! Ltd (No 3) [2005] EWCA Civ 595; [2006] QB 125, para 246; and on appeal sub nom OBG Ltd v Allan [2007] UKHL 21; [2008] AC 1, para 275 (Lord Walker of Gestinghorpe). But once the basis of the right to privacy is understood

Morris-Garner, the fact that the claimant would not have chosen to exercise the right himself is no answer to a claim for user damages. It is enough that, as Lord Reed put it at paras 30 and 95(1) of his majority judgment, the defendant has taken something for nothing, for which the owner of the right was entitled to require payment.
to be the protection of a person’s freedom to choose and right to control whether and private information is to exploit its commercial value, the law should not be prissy about awarding compensation based on the commercial value of the exercise of the right. As was confirmed in
when others have access to his or her private affairs, I think that any tension largely
disappears. It is common experience that some people are happy to exploit for
commercial gain facets of their private lives which others would feel mortified at
having exposed to public view. Save in the most extreme cases, this should be seen as
a matter of personal choice on which it is not for the courts to pass judgments.

143. The point does not arise in the present case, however, because the claimant is not claiming damages for misuse of private information. As discussed, the only claim advanced is under the DPA 1998. Here it follows from the conclusion reached above about the meaning of section 13 that user damages are not available. This is because,

for the reasons given, compensation can only be awarded under section 13 of the DPA 1998 for material damage or distress caused by an infringement of a claimant’s right to have his or her personal data processed in accordance with the requirements of the

Act, and not for the infringement itself. Although his reasoning was in part based on an understanding of user damages overtaken by this court’s decision in Morris-Garner, it follows that Patten J was right to hold in Murray v Express Newspapers Plc [2007] EWHC 1908 (Ch); [2007] EMLR 22, at para 92, that the principles on which user damages are awarded do not apply to a claim for compensation under the DPA 1998.

144. There is a further reason why the claimant’s attempt to recover damages under

section 13 of the DPA 1998 by means of a representative claim cannot succeed. Even if
(contrary to my conclusion) it were unnecessary in order to recover compensation
under this provision to show that an individual has suffered material damage or
distress as a result of unlawful processing of his or her personal data, it would still be
necessary for this purpose to establish the extent of the unlawful processing in his or
her individual case. In deciding what amount of damages, if any, should be awarded,
relevant factors would include: over what period of time did Google track the
individual’s internet browsing history? What quantity of data was unlawfully
processed? Was any of the information unlawfully processed of a sensitive or private
nature? What use did Google make of the information and what commercial benefit, if
any, did Google obtain from such use?

145. The claimant does not dispute that the amount of any compensation awarded

must in principle depend on such matters. But he contends that it is possible to
identify an “irreducible minimum harm” suffered by every member of the class whom
he represents for which a “uniform sum” of damages can be awarded. This sum is
claimed on the basis that it represents what the Chancellor in the Court of Appeal
described as the “lowest common denominator” of all the individual claims: see [2020]
QB 747, para 75.

146. Google objects that Mr Lloyd, as the self-appointed representative of the class,

has no authority from any individual class member to waive or abandon what may be
the major part of their damages claim by disavowing reliance on any circumstances
affecting that individual. Mr Lloyd’s answer, which the Court of Appeal accepted, is a
pragmatic one. He points out that the limitation period for bringing any proceedings
has now expired. For any represented individual there is therefore no longer any
realistic possibility of recovering any compensation at all other than through the
present action. Furthermore, to make this action viable, it is necessary to confine the
amount of damages claimed for each class member to a uniform sum; and a uniform
sum of damages, even if considerably smaller than an individualised award would be, is
better than nothing.

147. I do not think it necessary to enter into the merits of this issue. I am prepared to

that the persons represented would not be prejudiced and with suitable arrangements
in place enabling them to opt out of the proceedings if they chose - allow a
representative claim to be pursued for only a part of the compensation that could
potentially be claimed by any given individual. The fundamental problem is that, if no
individual circumstances are taken into account, the facts alleged are insufficient to
establish that any individual member of the represented class is entitled to damages.

assume, without deciding, that as a matter of discretion the court could - if satisfied material damage or distress to the individual.

individual is entitled to compensation. To establish any such individual entitlement it
must be shown, at least, that there was unlawful processing by Google of personal
data of which that particular individual was the subject. In considering whether the
facts alleged, if proved, are capable of establishing an entitlement to damages, it is
therefore necessary to identify what unlawful processing by Google of personal data is
alleged to have occurred in Mr Lloyd’s own case and also in the case of each other
member of the represented class. What facts is the claimant proposing to prove to
show that Google acted unlawfully in each individual case?

149.     The answer, on analysis, is: only those facts which are necessary to show that

the individual falls within the definition of the “claimant class”. The premise of the claim is that Mr Lloyd and each person whom he represents is entitled to damages simply on proof that they are members of the class and without the need to prove any

further facts to show that Google wrongfully collected and used their personal data. Any such further facts would inevitably vary from one individual member of the class to another and would require individual proof.

150. To fall within the definition of the class, it must be shown, in substance, that the

version of the Apple Safari internet browser which, at any date during the relevant
period whilst present in England and Wales, he or she used to access a website that
was participating in Google’s DoubleClick advertising service. There are exclusions
from the class definition for anyone who changed the default settings in the Safari
browser, opted out of tracking and collation via Google’s “Ads Preference Manager” or
obtained a DoubleClick Ad cookie via a “first party request” rather than as a “third
party cookie”. The aim of the definition is to identify all those people who had a

individual concerned had an iPhone of the appropriate model running a relevant workaround, but not to include within the class anyone who did not receive a DoubleClick Ad cookie during the relevant period or who received the cookie by lawful means.

“The valuation construct is that the parties must be treated as having negotiated for a licence which covered the acts of trespass that actually occurred. The defendant is not required

to pay damages for anything else.”

See also Enfield London Borough Council v Outdoor Plus Ltd [2012] EWCA Civ 608, para 47; and Marathon Asset Management LLP v Seddon [2017] EWHC 300 (Comm); [2017] ICR 791, paras 254-262.

157.     Applying that approach, the starting point would therefore need to be to

establish what unlawful processing by Google of the claimant’s personal data actually occurred. Only when the wrongful use actually made by Google of such data is known is it possible to estimate its commercial value. As discussed, in order to avoid individual

assessment, the only wrongful act which the claimant proposes to prove in the case of without releasing Google from its obligations not to collect or use any information about that person’s internet browsing history. It is plain that such a licence would be valueless and that the fee which could reasonably be charged or negotiated for it would accordingly be nil.

each represented person is that the DoubleClick Ad cookie was unlawfully placed on
their device: no evidence is - or could without individual assessment - be adduced to
show that, by means of this third party cookie, Google collected or used any personal
data relating to that individual. The relevant valuation construct is therefore to ask
what fee would hypothetically have been negotiated for a licence to place the

158. The judge took the view that, even if the legal foundation for the claim made in

this action were sound, he should exercise the discretion conferred by CPR rule 19.6(2)
by refusing to allow the claim to be continued as a representative action. He
characterised the claim as “officious litigation, embarked upon on behalf of individuals
who have not authorised it” and in which the main beneficiaries of any award of
damages would be the funders and the lawyers. He thought that the representative
claimant “should not be permitted to consume substantial resources in the pursuit of
litigation on behalf of others who have little to gain from it, and have not authorised
the pursuit of the claim, nor indicated any concern about the matters to be litigated”:
[2019] 1 WLR 1265, paras 102-104. The Court of Appeal formed a very different view
of the merits of the representative claim. They regarded the fact that the members of
the represented class had not authorised the claim as an irrelevant factor, which the
judge had wrongly taken into account, and considered that it was open to them to
exercise the discretion afresh. They saw this litigation as the only way of obtaining a
civil compensatory remedy for what, if proved, was a “wholesale and deliberate
misuse of personal data without consent, undertaken with a view to commercial
profit”: see [2020] QB 747, para 86. In these circumstances the Court of Appeal took
the view that, as a matter of discretion, the claim should be allowed to proceed.

159.     It is unnecessary to decide whether the Court of Appeal was entitled to

interfere with the judge’s discretionary ruling or whether it would be desirable for a show that any wrongful use was made by Google of personal data relating to that individual or that the individual suffered any material damage or distress as a result of a breach of the requirements of the Act by Google. For the reasons explained in this judgment, without proof of these matters, a claim for damages cannot succeed.

commercially funded class action to be available on the facts alleged in this case. This is
because, regardless of what view of it is taken, the claim has no real prospect of
success. That in turn is because, in the way the claim has been framed in order to try to
bring it as a representative action, the claimant seeks damages under section 13 of the

160. I would therefore allow the appeal and restore the order made by the judge

refusing the claimant’s application for permission to serve the proceedings on Google
outside the jurisdiction of the courts of England and Wales.