Gerry Facenna KC leading on claim against Facebook over ‘surveillance advertising’

Meta, the owner of Facebook, is facing a claim in the UK High Court that Facebook’s model of “surveillance advertising” breaches the right to object under Article 21 of the UK General Data Protection Regulation (“UK GDPR”). The claimant Tanya O’Carroll is an independent expert and tech campaigner and is seeking to establish that users of Facebook and other social media platforms have the right to use those services while being able to opt out of being profiled and having their personal information used for targeted advertising.

Gerry Facenna KC is leading on the claim for Tanya O’Carroll, instructed by the law firm and digital rights agency AWO. The claim is supported by the Global philanthropic organisation Luminate.

The case has been reported in the national and international press:
The Guardian
Bloomberg UK
Forbes
The Times here and here

New opt-out class action claims against water and sewerage companies

Following recent publicity regarding unlawful discharges of untreated sewage and wastewater into waterways like rivers, streams, and coastal waters, Jon Turner KC, Julian Gregory and Antonia Fitzpatrick are working to prepare opt-out collective proceedings claims to be brought in the CAT against water and sewerage companies in England.

As well as providing individual compensation and justice, opt-out proceedings act as a deterrent to future misconduct. As the Supreme Court stated in Merricks, such claims serve “efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing”.

Each water and sewerage company in England is a monopolist in its local area, and the claims will contend that certain systematic failures relating to sewerage discharges which resulted in increased charges to customers constitute a breach of their dominant position contrary to section 18 of the Competition Act 1998.

The claims will be the first UK collective proceedings claims with a strong environmental rationale and impact.

Jon, Julian and Antonia are working with Leigh Day (see their press release here), Alix Partners and legal finance experts Bench Walk.

Professor Roberts, a water resource management specialist, is the proposed class representative, and Professor Hammond, who has been at the forefront of attempts to hold the water and sewerage companies to account for unlawful spills, is acting as a consultant.

High Court hears landmark challenge to the EU Settlement Scheme

The High Court has today commenced hearing R(IMA) v Secretary of State for the Home Department, a judicial review of the Home Office’s implementation of the UK’s obligations to EU citizens and EEA nationals under the Withdrawal Agreement and EEA-EFTA Separation Agreement.

Robert Palmer KC and Clíodhna Kelleher appear for the claimant, the Independent Monitoring Authority for the Citizens’ Rights Agreements (“IMA”) – the post-Brexit watchdog for the rights of EU citizens and EEA-EFTA nationals. This case marks the first occasion on which the IMA has launched legal proceedings on behalf of EU/EEA citizens and their family members under the Agreements.

The case concerns the requirement under the EU Settlement Scheme that EU citizens who have lived in the UK for less than five years and so have been granted “pre-settled status” must apply for “settled status” or re-apply for pre-settled status before their current pre-settled status expires. If they do not apply in time, they will automatically lose rights to work, access housing, education and claim benefits and be liable to detention and removal from the UK.

The IMA’s position is that the Agreements provide for a loss of rights in very limited circumstances, and that the failure to make a second application for status is not one of them.

The European Commission was granted permission to intervene by way of oral submissions, in support of the IMA’s position, in addition to its right to provide written observations under Article 162 of the Withdrawal Agreement. The IMA’s interpretation of the Agreements is further supported by the intervention of the3million, a campaigning group focused on the rights of EU, EEA and Swiss citizens living in the UK.

The hearing continues on 2 November 2022.

This case is being reported in the press: The Guardian, Reuters and Financial Times.

Good Law Project’s antibody testing challenge dismissed

R (Good Law Project) v Secretary of State for Health and Social Care (“Abingdon”) [2022] EWHC 2468 (TCC)

Judgment, 7 October 2022 (link to judgment here)

In these judicial review proceedings, the Good Law Project (GLP) had challenged DHSC’s decisions at the height of the pandemic to enter into three contracts with a company called Abingdon Health for Covid antibody testing.

The Court (Waksman J) dismissed GLP’s claim in its entirety and went on to find that GLP lacked standing to bring such claims. Having referred to the remarks of the Court of Appeal in Public First (2022) (see report here), the Judge held that GLP, a stranger with no commercial interest, lacked standing: it was not affected in any tangible way by the award of the public contracts; the alleged breach was not ‘grave’, and very limited weight was to be attached to GLP’s ‘experience and expertise’ in procurement litigation; finally, that no economic operator had brought a claim was not a determinative factor either way.

The facts of the case were that in 2020 in response to the Covid-19 pandemic, DHSC entered into public contracts with Abingdon to develop and potentially supply a lateral flow test which could be used by individuals at home to identify Covid-19 antibodies. It was thought at the time that if a link could be shown between the presence of antibodies and immunity to Covid-19, such tests could support the return to normal life, although, in the end, such a link was not found.

GLP’s challenge was on the following grounds: (i) rationality; (ii) apparent bias, conflict of interest, unlawful nationality preference; (iii) breach of the equal treatment and transparency obligations and (iv) unlawful State aid.

The Court dismissed each of these grounds, holding:

(i) Rationality:

  • There was no basis to suggest that the decision to enter into the first contract (a research contract) was made on the basis of false information or that there was a failure to make rational enquiries.
  • In relation to the second and third contracts, in the unparalleled circumstances of the Covid-19 pandemic, advance purchasing of tests/ components which were plainly in short supply was not irrational even if there was a risk that the tests would not be suitable or the link between immunity and Covid-19 antibodies would not be established. Moreover, there were appropriate contractual safeguards in place.

(ii) The allegations of apparent bias, conflict of interest and/or unlawful nationality preference were not made out on the facts.

(iii) The allegation that the equal treatment obligation under Regulation 18 had been breached was baseless in circumstances where: DHSC had made it clear that it was open to dealing with any economic operator; a competition was not required; GLP could not identify an economic operator which had been “unequally treated” as compared to Abingdon, and even if Regulation 18 were engaged and had been violated, the derogation was objectively justified in the exceptional circumstances of the Covid-19 pandemic. On the choice of Abingdon as the single contractor, on the facts the relevant supply contract was a “very good deal” for DHSC, it was not at all clear that any other operator would have contracted on that basis and there was an absence of evidence of other available tests.

(iv) State aid: applying the well-recognised principles in British Academy of Songwriters, Composers and Authors (2015), Waksman J found that there had been no State aid on the facts. In so finding, he determined that DHSC was plainly acting qua economic operator, so that in applying the MEOP test the burden of showing that the finance provided did not accord with ordinary market conditions was on the Claimant (Commission v EDF C-124/10 applied). There was plainly value given by Abingdon and no evidence adduced by GLP that the figure paid by DHSC was excessive. The relevant policy context was the urgent need for the research as the precursor to obtaining a speedy supply of possibly millions of tests.

It is also of significance that Waksman J determined that a debate about whether the Government Legal Department had adequately searched the mobile phones of key witnesses had “got quite out of hand”. The Judge found that GLP’s allegations of foul play were made without a proper basis and did not assist the Court.

A detailed case note by Imogen Proud is here

Philip Moser KC, Ewan West and Khatija Hafesji represented the Department of Health and Social Care, successfully defending the claim brought by the Good Law Project.

Ligia Osepciu and Cliodhna Kelleher represented Abingdon Health, the Interested Party.

CAT rejects Apple’s application for split trial in App Store collective proceedings

The Competition Appeal Tribunal earlier this week heard and dismissed an application by Apple for a split trial in the collective proceedings brought by Dr Rachael Kent. The proceedings concern alleged exclusionary and exploitative abuses by Apple in relation to the distribution and pricing of iOS apps. Apple sought directions for a preliminary trial confined to the issues of market definition and dominance. This was opposed by Dr Kent, including on the basis that Apple’s proposal would significantly increase costs and result in serious delay to securing compensation for the class of 19.5 million individuals that Dr Kent represents. Following a day of argument the Tribunal decided to reject Apple’s proposal (with reasons to follow) and instead gave directions for a full trial of all the issues to commence in October 2024.

Michael Armitage appeared (unled) for the class representative, Dr Rachael Kent, instructed by Lesley Hannah and Luke Streatfeild of Hausfeld LLP. Ronit Kreisberger KC is also acting for Dr Kent in the collective proceedings.

Nikolaus Grubeck and Ciar McAndrew represent Jagtar Singh Johal in intelligence-sharing torture case

Nikolaus Grubeck and Ciar McAndrew are acting for Mr Johal, a British citizen from Dumbarton, in a claim that unlawful intelligence sharing by UK intelligence agencies caused or contributed to him facing arbitrary detention, torture and death penalty proceedings in India.

Mr Johal, a blogger who has been critical of human rights violations committed by the Indian Government against Sikhs and has attended protests in the UK in support of India’s Sikh community, was arrested while on his honeymoon in the Punjab in October 2017. Mr Johal claims that, following his arrest, he suffered torture including electrocution, beatings, sleep deprivation, and forced nudity. Video footage of a forced confession obtained under torture has been broadcast on Indian TV. He is currently in Tihar Jail, New Delhi. In May, he was formally charged with conspiracy to commit murder and being a member of a terrorist gang. The charges against him carry a maximum sentence of the death penalty.

The United Nations Working Group on Arbitrary Detention has confirmed the torture allegations and has found, amongst others, that the continued pretrial detention of Mr Johal lacks legal basis and is arbitrary, in breach of several international human rights instruments.

In a claim lodged in the High Court against the Foreign, Commonwealth and Development Office, the Home Office, and the Attorney General, Mr Johal seeks damages for breaches of the Data Protection Act 1998, assault and battery, negligence and misfeasance in public office (or equivalent causes of action under Indian law).

Nikolaus and Ciar (led by Richard Hermer QC) are instructed by Waleed Sheikh and Erin Alcock of Leigh Day Solicitors to represent Mr Johal in the High Court proceedings. You can read more in Leigh Day’s press release here.

The ongoing case has also been widely reported in media, including:

 

Robert Palmer QC and Fiona Banks instructed on behalf of class representative in PlayStation legal claim

8.9 million Sony PlayStation UK customers could be owed a share of up to £5 billion in damages if the legal claim is successful. A collective action brought against the company at the Competition Appeal Tribunal alleges that Sony is breaching UK and EU competition law by abusing its dominant position resulting in consumers paying inflated prices for digital PlayStation games and in-game purchases over the last six years.

Robert Palmer QC is leading Fiona Banks on behalf of the class representative Alex Neill, instructed by Milberg LLP. You can view the press release here.

You can also view various national news articles here:

Court of Appeal confirms that collective proceedings regime allows issues of liability to be determined at the aggregate level, dismissing train operating companies’ appeals in the ‘Boundary Fares’ claims

Today, the Court of Appeal has dismissed the appeals brought by the train operating companies responsible for the South Eastern and South Western rail franchises (the “TOCs”) against the CAT’s judgment in Gutmann v First MTR South Western Trains Limited and Ors [2021] CAT 31.

In its judgment, the CAT certified two applications for opt-out collective proceedings against the TOCs in relation to alleged abuses of their dominant positions in connection with the sale of “Boundary Fares”, a type of extension ticket for use in conjunction with a TfL Travelcard.

The class representative, Mr Justin Gutmann, alleges that the TOCs abused their dominant position by failing to make Boundary Fares sufficiently available, or to use their best endeavours to ensure a general awareness among their customers of Boundary Fares, with the result that many Travelcard holders paid twice for part of their rail journeys. The class consists of an estimated 3 million London rail passengers. The claims have an estimated total value of £93 million across the two claims.

The TOCs had appealed the CAT’s judgment principally on the basis that many and varied individual issues of causation and therefore liability made the claims unsuitable for inclusion in collective proceedings. They argued that the CAT’s approach of allowing issues of liability to be considered in aggregate undermined the TOCs’ right of defence. Further grounds of appeal concerned the level of scrutiny the CAT should apply to the expert methodology (and the test in Pro-Sys v Microsoft), the CAT’s assessment of the costs and benefits of continuing the claims, and a rejected application for summary dismissal.

In an important judgment for the development of the collective proceedings regime, the Court of Appeal rejected the TOCs’ appeals. It held that:

  • Section 47C(2) of the Competition Act 1998 permits issues relating to liability to be determined upon an aggregate top-down basis, and does not require the position of each class member to be assessed individually. The Supreme Court’s judgments in Merricks and Lloyd were dispositive of this issue, and in any event, the purposive interpretation of s47C(2) led to that conclusion. The Court approved the CAT’s broad propositions that: (i) the existence of some no-loss claimants in a class was not an obstacle to certification, and (ii), the interests of defendants could be catered for at trial by aggregate adjustments using sensible estimations and assumptions;
  • The CAT had not erred in approving the methodology proposed by the class representative. The CAT had exercised a vigilant gatekeeper role and gone to proper lengths to satisfy itself as to the robustness of the class representative’s methodology. The Defendants’ criticisms of the methodology either did not raise an arguable issue of law or could appropriately be dealt with by the CAT making use of its ‘broad axe’;
  • The TOCs’ criticisms of the CAT’s cost-benefit analysis did not raise any issue of law;
  • Questions as to the TOCs’ liability for the conduct of third-party ticket sellers and their failure to offer Boundary Fares for all ticket types were issues for trial, and the CAT had not erred in declining to summarily dismiss them. In this context, the Court of Appeal reviewed the law on abuse of dominance by the imposition of unfair prices or other unfair trading conditions.

A copy of the judgment can be found here.

Philip Moser QC, Stefan Kuppen and Alexandra Littlewood (instructed by Hausfeld & Co LLP and Charles Lyndon Ltd) represent Mr Gutmann.

Fiona Banks (instructed by Slaughter and May) represents First MTR South Western Trains Limited. Tim Ward QC and James Bourke represented First MTR before the CAT.

Paul Harris QC, Anneliese Blackwood, Michael Armitage and Clíodhna Kelleher (instructed by Freshfields Bruckhaus Deringer LLP) represent London & South Eastern Railway Limited.

High Court awards indemnity costs after disclosure failure delays trial for two years

The Chancery Division has this week made an indemnity costs order against MGA, the world’s fourth largest toy manufacturer, after a four-week competition trial was adjourned when major breaches of MGA’s disclosure obligations were discovered on the eve of the PTR.

MGA manufacture the bestselling ‘LOL Surprise!’ range of collectible dolls, and had earlier success with ‘Bratz’. Cabo, the claimant in the proceedings, designed the ‘Worldeez’ line of collectibles, which it was preparing to launch in the UK in May 2017. It alleges that MGA launched a concerted campaign to exclude Worldeez from the market, threatening to refuse stock of LOL Surprise! to retailers if they stocked Cabo’s rival product and making false allegations that Worldeez infringed its IP rights.

Less than three weeks before the trial was due to start, MGA’s solicitors wrote to the Court indicating there had been serious errors in its disclosure process, and many tens of thousands of potentially relevant documents had never even been harvested. The trial was promptly vacated, and MGA and its solicitors ordered to provide a full explanation of what had occurred at a further hearing.

That hearing took place before Joanna Smith J on 20 July, where the Court heard evidence that some 900,000 documents were never captured as a result of technical errors in the harvesting process (conducted by MGA’s own IT team); the supervision of the process was also inadequate, and a number of ‘red flags’ had been missed by the solicitors, which (if properly addressed) could have led to discovery of the issues much earlier. The trial has now been relisted for October 2024, a delay of more than two years.

At this week’s hearing, the judge ordered MGA to pay Cabo’s costs of the adjourned trial (as costs thrown away) on the indemnity basis, and to make a payment on account of over £750,000. The company is also required to engage an external e-disclosure provider to repeat its entire document harvest process. Judgment was reserved on Cabo’s application for an unless order, under which MGA’s Defence would be struck out if it fails to comply with its disclosure obligations by December this year.

Ronit Kreisberger QC, Stefan Kuppen, and Alfred Artley represent Cabo, instructed by Spector Constant & Williams.

The case is being reported in the media: The Law Gazette.

The judgment handed down on 29th July can be found here.