Case Law: Gulati v MGN Ltd, A landmark decision on the quantum of privacy damages – Hugh Tomlinson QC and Sara Mansoori

22 05 2015

Mirror Hacking ClaimantsThe judgment in the Mirror Phone Hacking damages case of Gulati v MGN Ltd ([2015] EWHC 1482 (Ch)) deals with a wide range of legal and factual issues.  This post deals in detail with only three: the principles on which damages for misuse of private information are assessed, whether it was appropriate to make only one award of damages per claimant and the quantum of damages in privacy cases in general.  It was Mr Justice Mann’s decision in favour of the claimants on the first two points which led to the very substantial awards of damages in this case which are summarised below.

What is compensation for?

There was a fundamental issue between the parties as to what the claimants should be compensated for in a misuse of private information case.

On the one hand, the claimants’ case was that

the compensation should have several elements.  There is compensation for loss of privacy or “autonomy” resulting from the hacking or blagging that went on; there is compensation for injury to feelings (including distress); and there is compensation for “damage or affront to dignity or standing” [108].

On the other hand, the defendant argued that the compensation should only be for “distress or injury to feelings” [108].

In order to decide this issue the Judge went back to the development of the tort of misuse of private information.  This involved the absorption of the values underlying Article 8 ECHR into English law.  The Judge noted ([110]) that these included the protection of human autonomy and dignity (see Campbell v MGN Ltd [2004] 2 AC 457 [51]).

As a result, the Judge concluded that

Those values (or interests) are not confined to protection from distress, and it is not in my view apparent why distress (or some similar emotion), which would admittedly be a likely consequence of an invasion of privacy, should be the only touchstone for damages.  While the law is used to awarding damages for injured feelings, there is no reason in principle, in my view, why it should not also make an award to reflect infringements of the right itself, if the situation warrants it.  The fact that the loss is not scientifically calculable is no more a bar to recovering damages for “loss of personal autonomy” or damage to standing than it is to a damages for distress.  If one has lost “the right to control the dissemination of information about one’s private life” then I fail to see why that, of itself, should not attract a degree of compensation, in an appropriate case” [111].

The Judge noted that any other approach would render the rights protected (to a degree) illusory.  It was also inconsistent with the approach taken in AAA v Associated Newspapers Ltd ([2012] EWHC 2103 (QB) [127]).

The defendant relied on the judgment of Lord Dyson in the Supreme Court case of R (Lumba) v Secretary of State for the Home Department ([2012] 1 AC 245 [101]), in which he disapproved the concept of “vindicatory damages”.  The Judge accepted that he was bound by this but held that it did not rule out “compensation for the act of misuse itself” ([132]).

The Judge held

“If one assumes for the moment that what each claimant alleges to have happened has happened, the defendant will have helped itself, over an extended period of time, to large amounts of personal and private information and treated it as its own to deal with as it thought fit.  There is an infringment of a right which is sustained and serious.  While it is not measurable in money terms, that is not necessarily a bar to compensation (distress is not measurable in that way either).  Damages awarded to reflect the infringement are not vindicatory in the sense of Lumba.  They are truly compensatory.” [132]

He noted that this approach was supported by Tugendhat & Christie on the Law and Practice of Privacy and the Media, (2nd Edn at paragraph 13.107).

One award of damages per claimant?

The claimants argued that awards of damages should be made in relation to three strands of unlawful activities: an overall award for voicemail interception activities, an award for blagging of personal information and an award in relation to each article admitted to be the result of phone hacking [146].

The defendant argued that each claimant should receive an overall sum for all wrongs, compensating for the overall distress caused by the totality of the wrongful acts [147].

After considering a number of authorities, the Judge concluded that

the case law does not bind me to take either a wrapped up approach, or a divided up approach.  It demonstrates that the court can, and should, take an approach which is appropriate to achieve the objective of a compensatory award – to compensate the claimant properly and fairly for the wrong that he or she has sustained.  In some cases a global award will be appropriate to that end; in others a more divided up approach will be appropriate” [154].

In relation to the present case, he took the view that a global sum was not appropriate because “The wrongs have too great a degree of separation for that”. He also accepted the claimants submissions that there are three areas of wrongful behaviour that needed to be considered: the infringement caused by the hacking [155]-[156]; the investigations by the private investigators [158]; and the distress caused by each article [159].

As a result, he approached the case on the basis that he would make separate awards but ensure that the overall sum appeared proportionate and a proper reflection of the overall pattern of wrongdoing [157].

Quantum in Privacy Cases

The judge considered thirteen “comparables” – from Cornelius v Taranto ([2001] EMLR 329) to Weller v Associated Newspapers ([2014] EMLR 24) ([171] to [183]).  He said that it was not possible to analyse these judgments in “too refined a fashion”, but made three observations

(i)  They show an increasing tendency to appreciate, and give effect to, the seriousness of invasions of privacy.  The difference between the amounts awarded in the later cases and the amounts in the earlier cases cannot be explained by inflation or the seriousness of the later cases.  The amounts awarded in the earlier cases were too low because (as it were) they were too low, as was acknowledged in Spellman.

(ii)  With the exception of WXY, the judges did not seek guidance from other areas in the sense of drawing parallels which they followed, though no doubt in some of the cases where libel was also alleged libel damages may well have been in mind.

(iii)  None of the cases involved the award of sums which begin to approach the sums claimed by the claimants in my 8 cases.  They are all (even the most serious) very much less, even in cases which were expressed to be very serious cases.  Having said  that, it is apparent to me that if the factual cases of the claimants on the scale of the invasions in the present cases are correct (and even on the admissions of the defendant) the scale of the invasion of privacy in the cases before me is very much greater than in any of the reported cases.  The invasions of privacy in the present case were not invasions on a few closely related occasions, or invasions which ultimately led to the publication of one article (or a small number of factually closely related articles).  Nor were they the equivalent of the publication of a photograph on two or three occasions.   They were invasions which are said to have been carried out on a daily basis, and to have resulted in a number of articles which, while they may have a common theme, are not the equivalent of a libel repeated in several articles over a period.  The present cases also contain invasions of privacy on a grand scale which did not result in any form of publication (save for discussions amongst journalists in some instances), and none of the reported cases involve that.  So far as all that is true (and I think it is) they are very important distinguishing factors, which make the direct application of any of the figures in those cases inappropriate”. [184]

Finally, the Judge rejected the submission that the approach to distress damages in discrimination cases found in the case of Vento v Chief Constable of West Yorkshire Police ([2002] EWCA Civ 1871) was appropriate in privacy cases ([185] to [199]).

Summary of the Damages Awards

The Judge considered the evidence in relation to the degree of phone hacking, the publications and the distress caused to each individual claimant in very considerable detail and made the following awards:

  • Alan Yentob: One overall figure taking into account the extent and nature of the invasion of his privacy and modest aggravated damages, £85,000 [252].
  • Lauren Alcorn: Damages of £42,000 in relation to five articles, £3,000 in respect of the acquisition of information, £17,500 for invasions generally and a further £10,000 for upset and effect on relationships. This gave an overall total of £72,500 [283] to [292]
  • Robert Ashworth: Damages of £142,750 in relation to 19 articles, £5,000 in respect of the activities of private investigators, £30,000 for invasions generally, an additional £20,000 for distress and £3,500 for aggravated damages. This gave an overall total of £201,250 [293] to [364].
  • Lucy Taggart: Damages of £99,250 in relation to 19 articles, £3,000 in respect of the activities of private investigators, £15,000 for additional distress, £40,000 for the invasions generally with no further award of aggravated damages. This gave an overall total of £157,250 ([365] to [435]).
  • Shobna Gulati: Damages of £75,500 in relation to 8 articles, £5,000 in respect of the activities of private investigators, £15,000 for additional distress, £22,000 for the invasions generally with no further award of aggravated damages. This gave an overall total of £117,500 ([436] to [480]).
  • Shane Roche: Damages of £85,000 in relation to 13 articles, £5,000 in respect of the activities of private investigators, £25,000 for additional distress, £40,000 for the invasions generally with no further award of aggravated damages. This gave an overall total of £155,000 ([481] to [537]).
  • Paul Gascoigne: Damages of £78,250 in relation to 18 articles, £30,000 for distress caused by the general publicity, £10,000 in respect of the activities of private investigators, £20,000 for additional distress, £50,000 for the invasions generally with no further award of aggravated damages. This gave an overall total of £188,250 ([538] to [599]).
  • Sadie Frost: Damages of £182,750 in relation to 30 Articles, £10,000 in respect of the activities of private investigators, £30,000 for additional distress, £37,500 for the invasions generally with no further award of aggravated damages.  This gave an overall total of £260,250 ([600] to [701]).

Comment

This carefully reasoned and comprehensive landmark judgment that has, for the first time, analysed the nature and basis of damages awards in privacy cases. The previous highest award – £60,000 to Max Mosley in 2008 – was exceeded by every claimant. These awards are more comparable to those awarded in defamation actions.  The judge firmly rejected the levels suggested by the defendant (£30,000 for Sadie Frost, by way of example).

The judgment – as it set out to do – provides a very useful guide for claimants with future hacking or blagging claims as to the approach that the court will take when determining quantum.  Such claimants will need to ensure that they set out the relevant information in each of the categories that Mann J identifies as meriting a separate award of damages, including in particular the details relating to each article which it is claimed was a product of voicemail interception (or other unlawful activity) and the effect that the publication of each article had on the claimant.

It is seems likely that these higher levels of damages will also now be reflected in awards for other causes of action where privacy/Article 8 rights are in play, such as breach of the Data Protection Act and harassment claims. Such causes of action are increasingly being relied on by claimants whose rights have been infringed but who may be unable to demonstrate that they have suffered or are likely to suffer ‘serious harm’ as a result of the publication of false and defamatory statements.

In addition, in relation to claims under the Data Protection Act brought under a CFA, a claimant could claim the 10% uplift on damages, following the Court of Appeal decision in Simmons v Castle.  Such a claim was not allowed by Mann J in the Mirror Phone hacking cases as he held that the uplift was in lieu of the opportunity to recover a success fee and success fees were still recoverable for misuse of private information claims [160] – [166].

The defendant has not yet indicated whether it intends to appeal this decision.  The judge’s legal analysis will be difficult to challenge and his detailed analysis of the facts of each case is something that the Court of Appeal is unlikely to want to revisit.  The defendant made very extensive admissions as to the phone hacking which was engaged in.  In contrast to the position in most of the News of the World cases this was admitted to have been consistent over many years.  It is, perhaps, not surprising that a judge took the view that such levels of admitted misconduct required very substantial compensation.

Hugh Tomlinson QC and Sara Mansoori are members of Matrix Chambers specialising in media and information law. 


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23 05 2015
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