Thread by @thebrieftweet

The decision in #LloydvGoogle, and the sole speech of Lord Leggatt, is hugely important for effective access to justice for: (i) mass consumer claims, whether privacy-based or not; (ii) against big tech or other similarly scaled Defendants. These are my takeaways 1/

First, the speech is realistic about the practical impossibility of “opt in” GLO proceedings for modest sums (two figure or low three figure damages): see [25]-[28]; and identifies that the “opt out” CPO model in competition law is designed to address those flaws: [29]-[32] 2/

Second, the speech is open, after an exhaustive historical and comparative review of authority, to the purposive interpretation and reinvigoration of representative proceedings as a means to plug some of the same holes plugged by opt out CPOs. 3/

The question is what are the boundaries of such approach, in circumstances where no “opt out” regime akin to competition law has been provided: see [67]-[68] 4/

To this end the “same interest” requirement can and should be purposively interpreted to assist effective access to justice; and problems can be solved, if necessary, by multiple representative proceedings: see [71]-[74] 5/

Third, the real problem is the use of this approach in damages claims in circumstances where the damage suffered is heterogenous, as opposed to homogenous (e.g. where are all charges the same unlawful fee), i.e. damages the measure of which will depend upon individual impacts 6/

That problem can be avoided by a bifurcated process excluding damages questions, and dealing only with liability issues at the representative phase: see [80]-[83] 7/

Fourth, that consideration was a bar to the representative claim as formulated; and, being realistic, to any privacy claim that might in theory be capable of bifurcation, given that such claims are in practice unfundable: see [84]-[85]. 8/

S.13 DPA claims are inherently heterogenous; & cannot be morphed into homogenous claims about loss of control of data or generic interference with privacy to thereby make apable of being pursued in representative claims/ effective in practice : see [90]-[138] 9/

Had a misuse of confidential information claim been advanced, user damages might have been sought in the alternative; but such would also have produced intolerable heterogeneity: see [139-[141 and [106] 10/

Fifth this was compounded by the fact that the measure of damages would be affected by the degree of misuse, which was a function of which of and how an individual’s data had been processed, itself capable of wide variation: see [144]] 11/

The lowest common denominator argument, which focused on a single cookie licence, to circumvent this problem did not work on its facts: see [145]-[157] 12/

That combined analysis spells the end of the use of representative proceedings for privacy claims or for any mass claim where there is any real measure of heterogenous damage, as will be the case in many consumer claims for modest sums. 13/

The inescapable message is that reform is needed to extend an “opt out” procedure to consumer and privacy claims to provide real access to justice; and to ensure accountability of large companies to swathes of consumers/users 14/

This is particularly pressing since the CPO and GLO regimes do not easily sit alongside each other where conduct breaching the competition rules (say, the ticket pricing practices in Le Patourel) also generate remedies under standard consumer law 14/

Such migh be because eg. they entail “prohibited practices” under CPUT) or where software sold is both at an excessive price and defective so as to trigger claims under the digital content contracts provisions of the CRA 16/

So calls for legislation to provide for collective redress in such cases will become difficult to resist END/

I suppose a postscript would be that the analysis of Lord Leggatt to me is a convincing analysis of the proper limits on attempts to fashion substantively new remedies from limited procedural components. I.e. legislation is *required* legitimately to address this sort of problem.