Hearing Report, Gulati v MGN, the second day of the Mirror Phone Hacking damages appeal

The hearing of the second day of the Mirror Phone Hacking damages appeal took place in the Royal Courts of Justice yesterday before Arden, Rafferty and Kitchin LJJ.  In the morning submissions were made by Mr David Sherborne on behalf of the respondents with a short reply in the afternoon by Lord Pannick QC for MGN.  The Court also heard a separate application for permission to appeal in the Yentob case.

Mr Sherborne began by dealing with the first ground of appeal which concerned the comparison between the sum awarded in personal injury cases. He argued that there was no obligation to take such awards into account but rather that they were a possible “cross-check”.  He referred to the Elton John and Vento cases.

In response to questions from the bench Mr Sherborne said that the Court could take into account personal injury awards but that this is purely permissive, they were a useful cross-check but there was no obligation to align privacy awards with those for personal injury.

It was submitted that MGN could not make good the point that the judge had to pay close regard to personal injury awards. The judge having decided that the individual awards were reasonable and appropriate there was no basis for saying that he should then have reduced the cumulative total to reflect personal injury damages.

In relation to the second ground of appeal, Mr Sherborne argued that the Strasbourg court was looking at just satisfaction under Article 41 of the Convention and there was no analogy between that exercise and the assessment of tort damages.

In relation to the third ground, Mr Sherborne took the court through a series of examples in the judgment where Mann J had made it clear that he was being careful to avoid double-counting and reducing awards he would otherwise have made accordingly.

Finally, Mr Sherborne dealt with the fourth ground, that the judge should only have awarded damages for distress.  he argued that the claimants had suffered loss of dignity and autonomy and there was no basis in law for refusing to permit them to recover for it.

In reply Lord Pannick argued that personal injury guidelines were not a “loose cross check” but that guidelines were laid down.  He argued that libel damages were in a different category because of the element of “vindication”.

There was then a renewed application for permission to appeal on the Yentob case which concerns costs and a Part 36 offer.

Judgment was reserved on the main appeal and the application for permission to appeal.  MGN asked the court to give judgment as soon as possible in the light of the other claims being dealt with by Mann J.