Permission to appeal decision

Permission to appeal decisions by UK Supreme Court

28 July 2015

The Supreme Court has today (28 July) announced its decisions on three applications for permission to appeal of particular public interest, in the cases highlighted below. The decisions were made by a panel of three Supreme Court Justices following a review of the relevant written submissions.

1. Google Inc (Appellant) v Vidal-Hall and others (Respondents)

The Supreme Court has granted permission in part for Google to appeal the Court of Appeal of England and Wales' decision in a case relating to a dispute over the user information through cookies via use of the Apple Safari Browser.

The Respondents complain that Google collected private information about their internet usage (the Browser-Generated Information - "BGI") via the Apple Safari browser, and without their knowledge and consent, by means of cookies. This information enabled Google to offer this information to advertisers via its "doubleclick" advertising service which in turn enabled advertisers to select advertisements targeted or tailored to the claimants' interests, as deduced from the collected BGI, which could be and were displayed on the screens of the claimants' computer devices. This revealed private information about the claimants, which was or might have been seen by third parties. This was also contrary to Google's stated position that such activity could not be conducted for Safari users unless they had expressly allowed it to happen. The Respondents' claims concerned the internet usage period between Summer 2011 and Spring 2012. None of the Claimants alleges any pecuniary loss or other material damage. Their claims are for damages or compensation for distress.

The issues before the Court of Appeal were whether the cause of action for misuse of private information is a tort and whether there can be a claim for compensation without pecuniary loss within the meaning of damage in section 13 of the Data Protection Act 1998.

The Court of Appeal ruled that the misuse of private information constitutes a tort for the purposes of the rules providing for service of proceedings out of the jurisdiction and held that the claimants could recover damages for non-material loss. The issue of compensation for a contravention by a data controller is dealt with in Article 23 of the Directive (95/46/EC) and the Court of Appeal found it was not possible to interpret section 13(2) of the Data Protection Act 1998 in a way that was compatible with Article 23. It ruled that Section 13(2) of the 1998 Act should be disapplied on the grounds that it conflicts with the rights guaranteed by Articles 7 (right to private and family life) and 8 (right to protection of personal data) of the EU Charter of Fundamental Rights.

Google applied for permission to appeal to the Supreme Court on the following grounds:

  1. Whether the Court of Appeal was right to hold the Claimant's claims for misuse of private information are claims made in tort for the purposes of the rules relating to service out of the jurisdiction.
  2. Whether the Court of Appeal was right to hold that section 13(2) of the Data Protection Act 1998 was incompatible with Article 23 of the Directive.
  3. Whether the Court of Appeal was right to disapply section 13(2) of the Data Protection Act 1998 on the grounds that it conflicts with the rights guaranteed by Articles 7 and 8 of the EU Charter of Fundamental Rights.

The Supreme Court has granted permission to appeal in part.

The substantive text of the Supreme Court's Order reads:

"The Court ordered that permission to appeal be refused on ground one (the issue whether the claim is in tort) because this ground does not raise an arguable point of law. The Court ordered that permission to appeal be granted on all other grounds".

2. Maier and another (Appellants) v Asos Plc and another (Respondents)

The Supreme Court has refused permission for Maier to appeal the Court of Appeal of England and Wales' decision in a case relating to a trademark and passing off dispute.

Assos sell cycling wear and some casual clothes in 37 countries (including 15 Member States of the EU). In 2006, Roger Maier registered ASSOS as a community trade mark ("CTM").

Asos are a very large and rapidly growing online fashion retailer, selling almost every kind of garment, including its own branded goods. About half of their turnover for 2015 was generated in the UK. Since 2010 Asos has introduced country specific sites. Assos brought infringement proceedings against Asos alleging they were infringing their CTM under art.9(1)(b) of the Regulation ("CTMR") and also in passing off. Asos contended inter alia that it was entitled to an 'own name' defence.

The Supreme Court has refused to hear Maier's appeal and the Court of Appeal judgment therefore stands:

The substantive text of the Supreme Court's Order reads:

"The Court ordered that permission to appeal be refused because the application does not raise an arguable point of law of general public importance. The relevant principles are not in issue only their application to the facts of the case. In relation to the point of European Union law said to be raised by or in response to the application it is not necessary to request the Court of Justice to give any ruling, because the Court's existing jurisprudence already provides a sufficient answer".

3. Societe Cooperative De Production Seafrance S.A. (Respondent) v The Competition and Markets Authority and another (Appellant)

The Supreme Court has granted permission for the Competition and Markets Authority to appeal the Court of Appeal of England and Wales' decision in a case relating to a dispute over the acquisition by Eurotunnel of 3 out of Seafrance's 4 ships, together with all its business assets.

Permission for the Competition and Markets Authority to appeal was granted

The substantive text of the Supreme Court's Order reads:

"The Court ordered that permission to appeal be granted and the stay below continue pending the determination of the appeal".

Other results of the most recent round of permission to appeal applications will be published in the next week or so on the Court's website.