The Mirror Phone Hacking appeal began yesterday, 20 October 2015, in the Court of Appeal before Arden, Rafferty and Kitchin LJJ. Most of the day was occupied by the submissions made on behalf of the appellant, MGN Limited, by Lord Pannick QC.
At the outset of the hearing the court was told that there were another 70 cases against MGN and another 50 in which letters before claim had been sent.
Lord Pannick began by repeating MGN’s apology for phone hacking and the serious breaches of privacy rights which had taken place. He argued, however, that the sums awarded were out of all proportion to the gravity of the harm done when consideration was given to the established scale of damages for personal injuries. Reference was made to John v MGN, Thompson v Commissioner of Police and Vento v Chief Constable.
Kitchin LJ asked whether, if each individual award of damages appeared reasonable, the judge then nevertheless reduce the overall sum awarded. Lord Pannick responded that the judge had to ask whether the total sum was appropriate having regard to the personal injuries tariff. He had to look at the “totality of the conduct” and ask what sum was appropriate having regard to personal injuries guidelines.
Lord Pannick summarised his first ground of appeal by saying that, even recognising the gravity of the infringements and the large number of articles the sums awarded were simply disproportionate having regard to the totality of the damage done by reference to the analogy of personal injuries.
The second ground of appeal concerned the comparison with awards made by the Court of Human Rights. Arden LJ pointed out that although misuse of private information had borrowed the values of Article 8 and 10 it was a domestic tort. Lord Pannick nevertheless submitted that the sum awarded had to bear some reasonable relationships to the Strasbourg level of compensation.
The next ground of appeal dealt with was the fourth, which was the question of what the court was compensating for in the privacy context. It was argued that Mann J was wrong to reject the argument that damages are for distress and not for the fact of intrusion into autonomy or dignity.
In response to a question from Kitchin LJ. Lord Pannick submitted that a hardnosed person who did not get unduly distressed by invasions of privacy would only get minimal damages. He rejected the suggestion that there should be compensation for the loss of the power to control the use of one’s own private information.
Lord Pannick accepted that invasion of privacy was a breach of the rights of a person to autonomy and dignity and these were the values behind to the law of privacy but nonetheless submitted that when it came to compensation only distress was relevant.
Finally, brief submissions were made in relation to ground three, “double counting”. Lord Pannick made it clear that he was not inviting the court to remit the matter to the judge but rather to arrive at its own conclusions based on the submissions and the material in the judgment.
Towards the end of the day, Mr David Sherborne for the respondents began his submissions to the Court in reply.
He argued that it was not open to MGN to argue that Mann J should not have made a series of “atomised” awards for each article and breach of privacy because it had been conceded that this was a matter of judicial discretion. It was not said that Mann J had made any error of principle in exercising that discretion.
Mr Sherborne submitted that there were two reasons why the awards of damages were so high. First, that they were multiple awards that had to be added together and, secondly, because of the nature and sheer scale of the wrongdoing.
It was submitted that the assessment of damages was a fact sensitive issue and that the Court of Appeal should be slow to interfere with it unless Mann J was plainly wrong – which he was not. Summary submissions were made in response to the four grounds of appeal.
Mr Sherborne’s submissions will continue today when the hearing of the appeal will conclude.