The Supreme Court's judgment in Lloyd v Google in November 2021 (see our briefing) significantly curbed "opt-out" representative actions brought under CPR 19.6, but it left a number of unanswered questions - a trail of crumbs for claimant law firms to pick over. One such question was whether a different conclusion would be reached under the Data Protection Act 2018 (and UK GDPR) as the claim for loss of control of data in Lloyd was made under the Data Protection Act 1998. The High Court has recently considered this argument in its decision of SMO (a child) v TikTok Inc  EWHC 489.
The Claimant applied, amongst other things, for permission to serve the claim form on TikTok entities out of the jurisdiction. One of the factors that the Court had to consider in that context was whether the Claimant could demonstrate that there was a serious issue to be tried or whether, in light of the Supreme Court's decision in Lloyd, the representative claim was no better than fanciful.
Mr Justice Nicklin held that there was a serious issue to be tried but did so with caution, relying on the fact that he had only heard submissions from the Claimant on the issue and that, to reach an alternative conclusion, he would effectively have had to make the defendants' case for them.
This briefing looks at the Claimant's applications and how she seeks to distinguish Lloyd. A teaser, perhaps: for more definitive answers, we shall look to the summary judgment this summer.