On 7 August 2015, Kitchin LJ granted MGN permission to appeal against the privacy damages decision of Mann J in the case of Gulati v MGN ( EWHC 1482 (Ch)). The hearing of the appeal was expedited.
MGN had sought permission to appeal on four grounds as follows:
Ground 1: The damages awards were disproportionate compared to the scale of damages for personal injuries.
Ground 2: The damages awards were disproportionate by comparison with awards made by the European Court of Human Rights for breaches of privacy.
Ground 3: Mann J erred in law in that there was double counting in the assessment of damages.
Ground 4: Mann J erred in law because he had failed to recognise that, in the case of an invasion of privacy rights, damages can only be awarded for distress or injury to feelings and not for the fact of the wrongdoing.
Ground 5: Mann J was wrong to refuse to make a costs order in its favour after the date of expiry of a Part 36 offer of settlement made to one the claimants, Alan Yentob.
Kitchin LJ held that grounds 1 to 4 had a reasonable prospect of success and held that, in addition
“the appeal raises difficult and important issues as to the principles to be applied in assessing damages for invasion of privacy rights”
As to ground 5, Kitchin LJ said that the judge had properly directed himself as to the relevant principles and clearly formed that view that it would be unjust for Mr Yentob to pay the defendant’s costs. Kitchin LJ said that there was no real prospect of the Court of Appeal interfering with this evaluation. The appeal had no reasonable prospect of success and there was no other compelling reason why an appeal on this ground should be heard.
Because there were further cases turning on the resolution of the points raised on the appeal a reasonable degree of expedition was justified. Kitchin LJ estimated that the hearing of the appeal would take 2 days.
The EWCA Case Tracker presently has a “hear by” date of 4 April 2016 but an earlier date is likely to be fixed early next legal term.