On 10 November 2021 the Supreme Court handed down judgment in the case of Lloyd (Respondent) v Google LLC (Appellant).
The case was a representative claim brought by Mr Lloyd, who is a former director of Which! and also a consumer activist, against Google in respect of a breach of the Data Protection Act 1998.
We have commented on this case from the point of view of both its importance relating to damages for breaches of data protection laws and also the relevance of the judgment to employers, schools and colleges.
Mr Lloyd made a claim against Google on behalf of 4million iPhone users, seeking damages of over £3million because, he claimed, Google had breached the Data Protection Act 1998 by collecting the personal data of said users between 2011 and 2012.
Google collected the data by using a “workaround” on the Safari browser owned by Apple which enabled Google to effectively block third party cookies and use the information generated by the user’s browser activity.
Mr Lloyd took the action against Google on the basis that he had the same interest as representatives of any other persons who have that interest, that is to say that all iPhone users had the same interest in the case as him.
In a unanimous decision, the Supreme Court has ruled that the class action which would have ensued had they found in favour of Mr Lloyd, could not succeed because Mr Lloyd had not been able to prove to the court that each of the 4 million iPhone users he was representing had “suffered any material damage or distress” resulting from Google’s breach.
The impact of the judgment is that each individual affected by the breach would need to make their own claim against Google, which for many is a daunting prospect.
David v Goliath
Many reading the numerous articles on the Supreme Court judgment will be interested in the outcome, however significant numbers will no doubt be wondering how one man can consider taking on the technology giant that is Google.
It is well reported that Mr Lloyd’s claim was backed by third party funders which is a way of enabling parties to proceed with costly litigation where they may not have access to, or indeed wish to commit their own funds to, significant sums of money with no guarantee of return.
Litigation funding is available on a variety of claims and takes many forms from third party funding where a pot of funds to finance the litigation is made available to a party on agreed terms, to conditional fee agreements where a client pays different sums for legal services depending on the eventual outcome of the claim, to damage based agreements where the legal professional is paid depending on the eventual outcome of the claim.
Whilst the claim in question relates to a consumer claim it is also important to note that litigation funding is not just available to individuals and is just as applicable to a corporate entity that, for whatever reason, may not wish to commit their own funds to seeking the resolution of disputes through the courts.
Steve Beahan, Commercial Litigation Partner commented “the fact that an individual, albeit one who is an consumer activist and is backed by a campaign group, is able to take on the might of the likes of Google through the courts as a result of litigation funding demonstrates how important it is to offer alternate funding options to clients to ensure that their best interests are served and access to justice is available to all.”