LML News & Events

Updates and events about our group action cases, plus general news about group litigation in the UK and related subjects.

14

Oct

Google You Owe Us Nothing

Group Litigation continues to be a hot topic in legal circles and we were treated to the next chapter of the UK development story this week as the Court published its judgment in the Google You Owe Us case.

This was representative action being taken by Richard Lloyd, renowned consumer champion and former head of Which?, on behalf of a class of around 4.4 million other people who unknowingly had browsing data collected from their iPhones in 2011/2012. Mr Lloyd’s lawyers were seeking standard tariff damages of around £750 per person within the class.

By claiming standard damages, Mr Lloyd’s team hoped to show that all members of the class were in the same position as him so that they could all benefit from the case, but the Court did not buy it. Mr Justice Warby decided not to let the case go ahead for two main reasons. First was that there was no “damage” as required by the Data Protection Act. Second, a more lasting issue in group litigation terms, is the refusal of the Court to sanction any kind of flexibility into CPR 19.6 to allow a representative action to run. The Judge did not believe that the class members were in the same position after all.

The net result was that even though Google admitted doing what they were accused of, accepted that it was wrongful use of data under UK legislation and had already paid out over $17m in a US settlement, UK victims got no redress.

Personally, I’m a fan of opt out class actions as they rely on the claimant to prove that the defendant has done wrong but then create a level playing field between claimant and defendant when it comes to assessing and distributing loss. Once a class is certified in the US, the defendant knows that they are in a damage limitation position. There will be defence costs and potential damages, but on the flip side they know that they can resolve the problem in full. It makes sense to negotiate a settlement with the class representative and get closure on the entire problem, and most do.

However, the UK law makers do not share my view and will resist attempts to replicate a US style procedure. To quote from  the judgment in the Google case:

“Google maintains that this claim is a contrived and illegitimate attempt to shoe-horn a novel “opt-out class action” into the representative action procedure, in circumstances where Parliament has not considered it appropriate to make such a claim available; and that the claim is unnecessary in case management terms, unworkable in practice and disproportionately expensive.” and

“It would not be unfair to describe this as officious litigation, embarked upon on behalf of individuals who have not authorised it, and have shown no interest in seeking any remedy for, or even complaining about, the alleged breaches.”

Mr Lloyd was looking for damages of £750 yet the Court was told that litigation funding of up to £15m and insurance of £12m had been committed to the case. The Google You Owe Us group publicised the claim and invited people to join the action, but reassured people that “if you were one of those affected, then you are currently part of the claim.” The group attempted to represent the entire class of 4.4 million people even though only around 20,000 registered an interest in the case.

By my calculations, they needed to recover damages on behalf of around 30,000 people before the funder and insurers were paid back. Success fees for the funder and lawyers would be needed on top of that making the minimum number of claimants needed more like 75,000. That  is a lot of people to recruit and manage, and the challenges of achieving that with an active group of 75,000 people far outweigh the notification requirements to potential class members.

So the effect on access to justice in the UK is that, unless you have an anti competitive claim in the Competition Appeal Tribunal under the Consumer Rights Act 2015, the only way that low value, linked claims can be brought is by marketing to potential claimants and building a large anough book of “opted in” claimants to make the claim financially viable. It places a premium on the book building and management services that companies like LML provides.

Without a clear strategy to recruit at least 75,000 claimants and to litigate the case within a realistic budget, the Google case would not get off the ground. So Google, you need to owe us a lot before we can afford to do anything about it.

 
 
 
 
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