Supreme Court appeals: disease, data and driving

This blog looks in brief at three cases in which the Supreme Court has decided on applications for permission to appeal. One concerns reinsurance recoveries following mesothelioma claims, another the alleged misuse of personal data by Google and the third deals with liability for uninsured off road driving.

Equitas v MMI could properly be regarded as the latest development of the Fairchild doctrine. The issue at the heart of the case is the basis on which an insurer that had indemnified its insured in respect of a mesothelioma claim (liability for which would be established on the Fairchild principle) should recover from its reinsurer(s). Should it be permitted to ‘spike’ its recovery to one particular year of reinsurance or should the recovery be smoothed in some way across all relevant years? The first instance arbitration favoured the former, the Court of Appeal the latter. The Supreme Court will consider the case over a two-day hearing next week, meaning that judgment looks unlikely until the autumn at the earliest.

Lloyd v Google is a matter in which the Supreme Court recently granted permission to appeal. The case relates to a representative action (administered under CPR 19 and often referred to as a class action) pursued on behalf of more than four million IPhone users and which turns on alleged lack of consent to the abstraction of personal data. The issues were summarised by the Chancellor (Sir Geoffrey Vos) at paragraph 86 of the Court of Appeal’s judgment:

As the judge himself said, this representative action is in practice the only way in which these claims can be pursued. I do not accept the judge’s characterisation of this claim as “officious litigation”. To the contrary, this case, quite properly if the allegations are proved, seeks to call Google to account for its allegedly wholesale and deliberate misuse of personal data without consent, undertaken with a view to commercial profit. It is not disproportionate to pursue such litigation in circumstances where, as was common ground, there will, if the judge were upheld, be no other remedy. The case may be costly and may use valuable court resources, but it will ensure that there is a civil compensatory remedy for what appear, at first sight, to be clear, repeated and widespread breaches of Google’s data processing obligations and violations of the Convention and the Charter.

Lewis v Tindale & MIB is the last of the three and is a matter in which the Supreme Court has now confirmed its refusal of the application for permission. The decision to refuse was actually taken back in February and was reported at the time by the claimant’s representatives and was the subject of this post of ours about it. The legal position therefore remains as summarised in that blog and all that has happened recently is that the court has, somewhat belatedly, confirmed it will not hear a further appeal.

*Update – 8 July 2020. The Equitas case was due to start in the Supreme Court today but in fact, it was recently removed from the list. We were informed by the Court that “The parties settled and withdrew the appeal by consent.” So the Court of Appeal decision stands and the issue will not be scrutinised by the Supreme Court (not for the time being at any rate).*


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Alistair Kinley – Director of Policy and Government Affairs, BLM

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