Prismall v Google UK Ltd & Anor

Factual and Procedural Background

The Appellant, referred to as Plaintiff, brought a representative claim pursuant to Civil Procedure Rule 19.8 for the tort of misuse of private information against the Defendants, Company A and Company B. The claim was made on behalf of the Plaintiff and a class estimated at approximately 1.6 million individuals. The claim concerned the transfer of patient-identifiable medical data by The Hospital in October 2015 and the continuing transfer until September 2017. The data related to patients who attended hospitals operated by The Hospital or had blood tests processed by its laboratories between 2010 and 2015. The Defendants used the data to develop a medical application intended to identify and treat Acute Kidney Injury, but also had contractual rights to use the data for broader purposes including commercial development.

The Plaintiff's representative claim was struck out by the trial Judge, who granted summary judgment for the Defendants. The appeal challenges the Judge's finding that no member of the class had a realistic prospect of establishing a reasonable expectation of privacy or entitlement to damages for loss of control of their private information. The claim was pursued on the basis of the "lowest common denominator" claimant, a notional individual representing the minimal scenario for a class member's claim.

The Plaintiff was not permitted to amend the claim after the strike out, which is also challenged on appeal. It is noted that the judgment does not address whether individual claims by patients outside the representative claim might succeed. The data transfer by The Hospital did not utilize statutory mechanisms permitting non-consensual sharing of confidential medical information, and none of the class members were aware or consented to the data transfer at the time.

The factual background includes that the data was transferred via an Information Sharing Agreement using HL7 electronic messages, which contained patient-identifiable medical records and some clinician notes. The Defendants developed the application using synthetic data initially and subsequently used patient data for safety and effectiveness testing, with some dispute over the number of patients whose data was used. The Defendants obtained ethical approval for wider research projects, and a Memorandum of Understanding with The Hospital extended their collaboration beyond the application development.

The Information Commissioner's Office investigated and found non-compliance with data protection laws relating to the use of patient data for clinical safety testing. The application was registered with the relevant regulatory agency and deployed live at The Hospital from February 2017, with eventual cessation of use in 2023.

The Plaintiff's claim focuses on the wrongful use of private patient information by the Defendants in obtaining, storing, using for research and development, and commercial purposes beyond direct patient care. Damages were claimed solely for loss of control of private information, with any higher damages claims to be pursued individually outside the representative action. The class was defined by reference to patients domiciled in England and Wales who had medical records included in the data transferred during the relevant period.

Legal Issues Presented

1. Whether the lowest common denominator claimant has a real prospect of succeeding in a misuse of private information claim because all patient-related information generated in the patient-healthcare provider relationship gives rise to a reasonable expectation of privacy (except for direct care) and whether such a claim succeeds even if the patient has placed the information in the public domain.
2. Whether the Judge adopted too wide a definition of "direct care".
3. Whether the Judge was wrong to refer to a lowest common denominator claimant who had not provided any medical information to the doctor.
4. Whether the Judge was wrong to consider upset or concern as relevant to identifying the lowest common denominator claimant.
5. Whether the Judge should have permitted the Plaintiff an opportunity to amend the statement of case.

Arguments of the Parties

Appellant's Arguments

• All patient-related information generated during the doctor-patient relationship inherently gives rise to a reasonable expectation of privacy, except in direct care situations.
• The fact that a patient places medical information in the public domain does not affect the healthcare provider's duty to keep that information private or the reasonable expectation of privacy.
• The Judge adopted an overly broad definition of "direct care" and failed to address the full scope of the Plaintiff's case regarding the Defendants' use of transferred information.
• The class improperly included individuals whose transferred information had no medical content.
• The Judge erred in considering "upset or concern" relevant to the lowest common denominator scenario in a claim for loss of control damages.
• The Plaintiff should have been allowed to amend the claim to clarify the class definition and address the Judge's concerns.

Respondents' Arguments

• The tort of misuse of private information requires consideration of all circumstances, making a representative action on behalf of a large class impractical.
• The Judge correctly identified that some claimants had publicized their medical treatment, negating a reasonable expectation of privacy.
• The Judge's approach to the scope of "direct care" was correct.
• The refusal to permit amendment was justified because the proposed amendments did not address the core reason for the claim's failure, namely the publication of relevant information by the hypothetical claimant.
• The Plaintiff had made multiple unsuccessful attempts to formulate this claim, including one under the Data Protection Act 1998, which was discontinued following Supreme Court authority.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lloyd v Google LLC [2021] UKSC 50; [2022] AC 1217	Requirement that each class member must have a realistic prospect of success for a representative claim; interpretation of "same interest" in CPR 19.8; threshold for damages under DPA 1998.	Applied to hold that the representative claim failed as the lowest common denominator claimant did not meet the threshold for reasonable expectation of privacy or damage; emphasized difficulties of representative actions in digital mass claims.
ZXC v Bloomberg LP [2022] UKSC 5; [2022] AC 1158	Principles on reasonable expectation of privacy; objective test considering all circumstances.	Used to assess the privacy expectations in medical information and to reject the submission that all patient information automatically has such expectation.
Z v Finland (1998) 25 EHRR 371	Importance of confidentiality of health data under Article 8 ECHR; respect for patient privacy and confidence in medical profession.	Reinforced the significance of confidentiality in medical data but balanced against the threshold of seriousness in misuse of private information claims.
Campbell v MGN [2004] UKHL 22; [2004] 2 AC 457	Not every disclosure about health carries confidentiality; distinction between trivial and serious private information.	Supported the view that trivial or anodyne medical information may not attract privacy protection.
A v B [2005] EWHC 1651 (QB); [2005] EMLR 36	Further authority on the scope of privacy in medical information.	Referred to in support of the principle that context and circumstances determine privacy expectations.
NT1 and NT2 v Google LLC [2018] EWHC 799 (QB); [2019] QB 344	Consideration of privacy in medical treatment information; importance of circumstances.	Used to illustrate that mere attendance at hospital may not be private information without more.
ZC v Royal Free London NHS Foundation Trust [2019] EWHC 2040 (QB)	Assessment of privacy in hospital attendance and medical notes.	Supported the conclusion that not all medical information is private in every circumstance.
McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73	Two-stage test for misuse of private information: reasonable expectation of privacy and balancing exercise.	Applied as the governing legal test for the tort in this case.
Murray v Express Newspapers plc [2008] EWCA Civ 446; [2009] Ch 481	Non-exhaustive factors to consider in reasonable expectation of privacy assessment.	Guided the court's objective analysis of privacy expectations in the medical data context.
Ambrosiadou v Coward [2011] EWCA Civ 409; [2011] EMLR 21	Threshold of seriousness required for misuse of private information claims.	Confirmed that trivial or slight information may not merit protection.
Underwood v Bounty UK Ltd [2022] EWHC 888 (QB); [2022] ECC 22	Consideration of medical notes and privacy.	Noted but not determinative; some information may be trivial and not attract privacy protection.
Morris v Williams & Co Solicitors [2024] EWCA Civ 376; [2024] 3 WLR 693	Procedural context for multi-party claims.	Referenced regarding procedural options for group litigation.

Court's Reasoning and Analysis

The court applied the established two-stage test for misuse of private information: first, whether the claimant has a reasonable expectation of privacy in the information, assessed objectively considering all circumstances, including whether the information is in the public domain; second, if such expectation exists, balancing it against competing interests of the Defendants.

The court acknowledged the importance of confidentiality in medical records, grounded in regulatory duties and human rights principles, but emphasized that the tort requires a threshold of seriousness to be crossed. Not every piece of patient-related information automatically attracts protection, especially if the information is trivial or has been publicized by the patient.

The court agreed with the Judge that the representative claim procedure requires all class members to have the same interest, and thus each must have a realistic prospect of success. The "lowest common denominator" claimant was considered, representing the minimal claim scenario. The court found that such a claimant would not have a reasonable expectation of privacy sufficient to meet the threshold, particularly because that claimant was assumed to have published relevant information, negating privacy.

The court rejected the Plaintiff’s submission that all patient-related information generated in the doctor-patient relationship gives rise to a reasonable expectation of privacy, noting that patients can waive privacy by publicizing information. The court also found that the Judge's definition of direct care was sufficiently narrow for the purposes of the appeal, and that some uses of data fell within direct care and thus were excluded from the claim.

Regarding the class definition and whether the lowest common denominator claimant had provided medical information, the court held that partial medical records might contain no specific medical condition references, consistent with the class definition. The court also rejected the argument that upset or concern was relevant to the lowest common denominator scenario, as damages claimed were for loss of control only.

Finally, the court upheld the Judge's refusal to permit amendment of the claim, finding it to be a proper case management decision given the history of multiple attempts to formulate the claim and the failure to overcome the fundamental issues identified.

Holding and Implications

The court DISMISSED THE APPEAL against the order granting reverse summary judgment and striking out the representative claim.

The direct effect is that the representative claim for misuse of private information on behalf of the class of approximately 1.6 million persons fails, as the class does not satisfy the requirement that each member has a realistic prospect of success. The Plaintiff is not permitted to amend the claim to overcome this conclusion. The judgment does not preclude individual claims by patients whose circumstances differ from the lowest common denominator scenario.

No new precedent was established beyond the application of existing principles, including those articulated in Lloyd v Google, to the facts of this case. The decision underscores the difficulty of pursuing representative actions in misuse of private information cases involving large and diverse classes where individual circumstances affect privacy expectations and damages.