It has, today, been announced on the UK Supreme Court website that judgment in the case of Lloyd v Google will be handed down at 9.45 on Wednesday 10 November 2021. Google’s appeal against the Court of Appeal’s 2 October 2019 decision ( EWCA Civ 1599) was heard on 28 and 29 April 2021 by a panel consisting of Lord Reed, Lady Arden and Lords Sales, Leggatt and Burrows.
The Court of Appeal had granted permission for the representative claimant to serve a representative claim for millions of pounds of “loss of control” damages arising out of the so-called “Safari workaround” on Google out of the jurisdiction. We had an Inforrm case comment on that decision by Aidan Wills.
As set out in the Supreme Court’s “Case Summary“, the issue on the appeal was whether the respondent should have been refused permission to serve his representative claim against the appellant out of the jurisdiction
(i) because members of the class had not suffered ‘damage’ within the meaning of section 13 of the Data Protection Act 1998 (‘DPA’); and/or
(ii) because the respondent was not entitled to bring a representative claim because other members of the class did not have the ‘same interest’ in the claim and were not identifiable; and/or
(iii) because the court should exercise its discretion to direct that the respondent should not act as a representative.
The Supreme Court’s decision has been eagerly awaited by all those involved in “data breach litigation”. As Ashley Hurst and Philip Kemp point out in their “Hearing Report” on Inforrm, the Court of Appeal’s decision significantly widened the scope for claims to be brought in respect of a failure to protect data and had led to numerous copycat claims, all of which are on ice pending the outcome of the appeal.
If the appeal is dismissed it will open a new era of “opt out” class actions in the English Courts with many hundreds of potential claims on behalf of millions of individuals whose personal data has been misused. If the appeal is allowed then tech companies and all those who engage in large scale data processing will breath a sigh of relief.