The UK Supreme Court handed down its much-anticipated decision in the Lloyd v Google LLC [2021] UKSC 50 case on 10 November 2021 restricting claimants’ ability to bring data privacy class actions in the UK under the (now repealed) Data Protection Act 1998 (DPA 1998). This decision will be persuasive (though not binding) with respect to similar class actions brought under the (in-force) UK General Data Protection Regulation and the Data Protection Act 2018 (collectively, the UK GDPR). This decision will not directly impact litigation brought under the EU General Data Protection Regulation in EU member states.

Key takeaways

  1. The Supreme Court determined that compensation under section 13 of the DPA 1998 may be awarded to affected individuals only where it is established that an individual has suffered damage (interpreted by the Supreme Court to mean material damages such as financial loss or mental distress) caused by a contravention of DPA 1998 by a data controller. Importantly, statutory infringement would not, in and of itself, constitute material damages for purpose of awarding compensation. Requiring claimants to prove that an infringement of DPA 1998, no matter how severe, has caused the claimant’s damage makes it more difficult for claimants to succeed in such claims.
  2. The Supreme Court suggested that it may be appropriate for claimants to bring bifurcated proceedings in similar cases in the future, i.e., to first bring a representative action to establish the defendant’s liability, and to then pursue individual claims for compensation. This type of two-stage approach will make such claims less appealing for both prospective claimants (given the increased cost to pursue individual, low value claims through to the second stage) and litigation funders (who may only obtain an award for damages following the second stage of litigation and now will have to prove the damage caused to each particular individual).
  3. Importantly, the Supreme Court’s decision was made under the now-repealed DPA 1998, and not the in-force UK GDPR. While the DPA 1998 is similar to the UK GDPR, there are potentially material differences in the statutory regimes. Therefore, while the Supreme Court’s decision will be persuasive with respect to similar class actions brought under the UK General Data Protection Regulation and the Data Protection Act 2018, it is unclear whether it would be formally binding with respect to such class actions.

Overall, this decision will have wide-ranging consequences for the future of class actions in the UK in general, and in the data protection field in particular. In turn, this decision is likely to be welcomed by many businesses who may be potential defendants in data privacy litigation in the UK. Nonetheless businesses will need to be wary with respect to potential UK class actions under the UK GDPR.

Our in-depth analysis of the wider impact of the Supreme Court’s decision on the class action landscape in the UK will be published shortly.

Photo of Steven Baker Steven Baker

Steven Baker is a partner in the Litigation department and a member of the International Arbitration group. He has over 25 years of experience advising clients on complex, often multi-jurisdictional disputes in a wide range of industries, including asset management, technology, life sciences…

Steven Baker is a partner in the Litigation department and a member of the International Arbitration group. He has over 25 years of experience advising clients on complex, often multi-jurisdictional disputes in a wide range of industries, including asset management, technology, life sciences, financial services and defence sectors. He also has extensive experience advising upon and managing disputes for clients involving major technology or telecommunications projects and their financing, technology licensing and misappropriation of trade secrets.

Steven is ranked as a leading litigator for banking and financial services litigation in both Legal 500 and Chambers & Partners, who comment that “Steven is a tremendous litigator – he is very clever and efficient and handles multiple clients well” as well as being ”very thoughtful, very into the detail, but equally takes a very commercial stance”, “Very good at running complex commercial disputes, very bright and a pleasure to deal with” and “has a really good grasp of complex banking litigation.” He was named by Benchmark Litigation as its inaugural “UK Lawyer of the Year” in 2019 as well as a National Litigation Star (2019-2021). He was also designated a  Client Services All-Star by the BTI Consulting Group, which selects lawyers who “deliver outstanding legal skills and superior client services” based on interviews with legal corporate counsel at the world’s leading organizations.

Steven lectures on dispute resolution-related matters, including on the M. Sc. Major Projects course at Said Business School, University of Oxford. He is also the co-author of a leading publication on technology disputes entitled, “IT Contracts and Dispute Management: A Practitioner’s Guide to the Project Lifecycle”, a second edition having been commissioned.

Photo of Alexis L. Namdar Alexis L. Namdar

Alexis Namdar is an associate in the Litigation Department. Alexis has cross-border litigation and extensive international arbitration experience, specializing in investment and complex commercial disputes. He has supported clients in a wide range of sectors and his recent cases include disputes in relation…

Alexis Namdar is an associate in the Litigation Department. Alexis has cross-border litigation and extensive international arbitration experience, specializing in investment and complex commercial disputes. He has supported clients in a wide range of sectors and his recent cases include disputes in relation to joint ventures, financial services, asset management/private equity, energy, mining and telecoms.

Alexis’ practice experience encompasses acting, including as advocate, in proceedings under a wide range of arbitral rules including ICSID, UNCITRAL, LCIA, ICC, SCC and the LME. He also has extensive experience of offshore litigation in the British Virgin Islands Commercial Court and up to the Eastern Caribbean Court of Appeal.

He is admitted as a solicitor in England & Wales and is qualified as a solicitor-advocate for the Higher Courts of England & Wales (Civil proceedings).

Photo of Kelly McMullon Kelly McMullon

Kelly M. McMullon is special international labor, employment & data protection counsel in the Labor & Employment Law Department and member of the Firm’s International Labor & Employment, Privacy & Cybersecurity and Sports Groups. Kelly has been recommended in Legal 500 UK for…

Kelly M. McMullon is special international labor, employment & data protection counsel in the Labor & Employment Law Department and member of the Firm’s International Labor & Employment, Privacy & Cybersecurity and Sports Groups. Kelly has been recommended in Legal 500 UK for her “responsiveness and practicality.”

Kelly assists clients in a variety of sectors including financial services, asset management, life sciences, fintech, consultancy, retail, sports, leisure and manufacturing in a wide range of contentious and non-contentious matters.

In her employment practice, she provides general day-to-day counselling and advice on all employment-related issues, including hires, terminations, grievances and redundancies, as well as the employment aspects of transactions.

In her data protection practice, Kelly provides strategic advice as well as practical support and guidance on all aspects of data protection compliance, including international transfers of personal data, data breaches, direct marketing and employee data protection concerns. She also provides advice on the data protection aspects of transactions.

Kelly also has experience working with businesses on CSR and ESG initiatives, human rights and modern slavery issues.

Kelly is a contributor to Proskauer’s International Labor and Employment Law and Proskauer on Privacy blogs and is the Editor for Proskauer on Privacy’s “International Data Privacy” chapter. She regularly provides training and speaks on employment and data protection issues.

Her pro bono experience includes counselling not-for-profit organizations on data privacy and employment-related issues.

Photo of Julia Bihary Julia Bihary

Julia Bihary is an associate in the Litigation Department with a focus on complex commercial litigation, arbitration, private wealth, trusts and charities disputes.

Her recent experience includes advising corporate clients, high-net-worth individuals, fund managers and charities in a variety of disputes including international…

Julia Bihary is an associate in the Litigation Department with a focus on complex commercial litigation, arbitration, private wealth, trusts and charities disputes.

Her recent experience includes advising corporate clients, high-net-worth individuals, fund managers and charities in a variety of disputes including international arbitrations, commercial, contractual and professional negligence disputes.

Julia is a solicitor advocate with Higher Rights of Audience.

She is fluent in English, Hungarian and German.