Prior to the Supreme Court’s judgment in Lloyd v Google [2021] UKSC 50, numerous representative claims – akin to opt-in class actions – were afoot in the data protection arena. Most seem, understandably, to have fizzled out following Lloyd. But not all. Following this week’s judgment in SMO v TikTok Inc. and Others [2022] EWHC 489 (QB), the claim against TikTok has more or less scraped through its first procedural hurdle, and now is now gearing up for a summary judgment hearing in the months ahead.
The parties
SMO is a minor, acting through her litigation friend, the former Children’s Commissioner for England. She seeks to bring a claim alleging data protection contraventions and misuse of private information relating to the use of the TikTok platform.
SMO seeks to do so as a representative claimant under CPR 19.6 (the route Mr Lloyd tried). The class she seeks to represent is framed as all those who are, or were, account holders and users of TikTok from 25 May 2018 and who were (a) resident in the UK or the EEA (though Dutch children are to be carved out, as there are separate proceedings afoot in the Netherlands on behalf of Dutch users); and (b) under the relevant age (i.e. 16 or 13, depending on the territory and which legislation was in force at the time).
There are six defendants (“Ds”). D2 (TikTok Information Technologies Limited) is a UK company, and it owns D3 (TikTok Technology Limited, an Irish company). But the other Ds are incorporated and based outside the UK: D1 (TikTok Inc., USA), D4 (Bytedance Limited, Cayman Islands), D5 (Beijing Bytedance Technology Co. Limited; Beijing) and D6 (Musical.ly; incorporated in the Cayman Islands, operating in Shanghai). As I explain below, significant procedural issues arise because the bulk of the Ds are not incorporated or based in the UK, and also because of the claimant’s approach to timings.
The procedural issues
The claimant issued her claim form on 30 December 2020. This was apparently done for tactical reasons, i.e. to because things would be easier for the claimant in terms of the UK courts’ jurisdiction and the ability to enforce any judgment if proceedings were issued before the end of the Brexit transition period at the end of 2020.
But her decision to kick things off at that time – well before the Supreme Court resolved Lloyd – made things more challenging in other respects. A number of the Ds SMO wished to sue were based abroad, and so (i) if you issue a claim against a D outside of the jurisdiction, you must serve that claim on them within 6 months (see CPR 7.5(2)) and (ii) you also need the court’s permission to serve outside the jurisdiction (see CPR 6 and Practice Direction 6B).
There was thus quite a lot to crack on with after the issuing of the claim form on 30 December 2020, and even though a stay of proceedings was agreed to await the outcome of Lloyd, the claimant did not proceed in a timely fashion. Nicklin J’s judgment is packed with criticism of the claimant’s team in this respect. I’ll spare you the minutiae here, but the upshot is that, at just about the last minute (22 February 2022), the claimant issued three applications to try to keep her claim on track. Here is what Nicklin J made of those applications.
Application 1: permission to serve out of jurisdiction
The principles for granting permission to serve out are well established: see Altimo Holdings and Investment Ltd -v- Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804. There must be a serious issue to be tried on the merits; there must be a good arguable case that the claim comes within one of the gateways (based on the causes of action); England and Wales must be clearly the appropriate forum for trial.
Only the first of those principles was really in issue here. Specifically, the issue was whether this representative claim had any real prospect of success in light of Lloyd. At first glance, this looks like an uphill battle for SMO. She argued that her claim was very different from Lloyd: a different class of claimant, better prospects of avoiding the need for assessing each individual case, a MPI cause of action, different (and allegedly more intrusive) processing and better prospects of getting over the de minimis threshold, even on a lowest common denominator basis.
Nicklin J found in her favour: “Having heard only the Claimant’s argument properly argued, I consider that she has satisfied me at this stage, and expressly on that basis, that there is a serious issue to be tried on this point” (at [64]).
It is important to understand the Judge’s reasoning here. He was not saying this claim would survive Lloyd. Indeed, there will be a hearing in the coming months of D2’s application for summary judgment to kill off the claim entirely. The judge was, however, not prepared to kill the claim off just yet, and he laid emphasis on the fact that he was only able to hear submissions on this issue from the claimant’s perspective. Why? Because only D2 was represented at the hearing, and D2 – being UK based – was not in scope for this ‘service out’ application. (The other Ds were not represented because they are not yet in the fray – which is the main point of this hearing).
In those circumstances, Nicklin J was not only alive to the fact that he was hearing only part of the story, but he was also alive to the likelihood of appeal. In other words, if he refused permission to serve out, SMO would appeal, and that would give rise to likely appellate proceedings which would also only hear from one side. That is not a desirable way to proceed; better to allow the substance of this issue (can SMO’s claim survive Lloyd?) to be fully argued at D2’s summary judgment hearing.
So permission to serve out of jurisdiction was granted. But that is as good as it got for the claimant.
Applications 2 and 3: extension of time to serve/permission to serve on UK lawyers instead
Having permission to serve out of jurisdiction is all well and good, but you are also required to effect service. If you can’t do that in time (6 months from the date of issue), you’re out. As I’ve referred to, SMO’s team left everything much too late, so they ran out of time to get things done – the problem being compounded by the fact that, in practice, it can take up to a year to effect service in China. The claimant’s attempts to get round these difficulties was to apply for permission to extend the time for service and/or to be allowed to serve on the lawyers in the UK, Hogan Lovells in London, instead of on D5 in China.
This was indeed an uphill battle for SMO, given the Judge’s views on how her team had approached timing issues, and given that Hogan Lovells had been explicit from the outset that they were not instructed to accept service on behalf of any Ds outside of the jurisdiction.
So it proved: Nicklin J refused these applications. He might have been more sympathetic if things had been done swiftly after judgment landed in Lloyd, but there were further months of delay for no good reason. On timings, see [73]-[74]:
“The inescapable reality is that the reason that the Claimant needs an extension of time is that she has failed to take the necessary steps to serve the Claim Form within the time for doing so until practically the last minute. There is no good reason for that failure. On the contrary, the Claimant finds herself in this position largely because of the tactical decision to issue the Claim Form on 30 December 2020 in order to take advantage of a more favourable legal regime that would be unavailable after 1 January 2021.
…
The Claimant could have sought the permission to serve the Claimant on the Service Out Defendants at any stage after issue of the Claim Form, but she did not do so. Perhaps that was because of the complexities of litigation brought on this representative basis and/or issues relating to the funding of the claim, but that is not a good enough reason. The primary responsibility on the Claimant’s solicitors is the proper progression of the claim, including adherence to the prescribed deadlines.”
See also this trenchant stuff at [77]:
“The Claimant’s side is entirely at fault for the position the Claimant now finds herself in. The Defendants have done nothing to obstruct service of the Claim Form. They did not mislead the Claimant as to the position on service. This is not a case where the Claimant has been lulled into believing that service will be accepted, only for the position to change shortly before the deadline for service. The Defendants have simply refused to accept service otherwise than in accordance with the CPR. They are entitled to do so, and Hogan Lovells have been consistent in making the position clear throughout. It is for a claimant to establish the jurisdiction of the Court over a defendant by service of the Claim Form in the time permitted and, where necessary, to obtain the Court’s permission to serve out of the jurisdiction. These might be considered to be fundamental and basic principles of civil litigation.”
Further, while the CPR allows a court to permit service by alternative means (i.e. as opposed to on the D or those it has authorised to accept service), this would not be permitted here. China does not accept that service can be effected otherwise than in accordance with the Hague Convention, and there were no exceptional or special circumstances to justify doing things differently here, given how the claimants had proceeded.
What now?
The claim against D5 is now effectively dead, as there is no time left to effect service. If SMO wishes to sue the China-based D5, she needs to start over again. But that might not be too problematic in practice. The claims against the other Ds remain live. The court will hear D2’s summary judgment application in the months ahead, with D2 arguing that the claim has no real prospect of success in light of Lloyd. Nicklin J acknowledged that, whatever the outcome of that application, it may generate an appeal, so there is a good deal of time to tick over before the substantive proceedings get on (if at all), and any new claim against D5 could catch up in the interim.
For now though: attention turns to the summary judgment/Lloyd arguments, while Nicklin J’s judgment stands as a sharp reminder to ensure that litigants not only think through their procedure carefully, but also get on with things quickly.
11KBW’s Anya Proops QC, Chris Knight and Zac Sammour appeared for the Second Defendant.
Robin Hopkins