Drawing comparisons between privacy and PI damages

On 21 May 2015 Mr Justice Mann handed down judgment in Gulati and others v MGN [2015] EWHC1482 (Ch). The case concerned quantum in a number of phone hacking compensation cases against the ?Mirror Group.

This was the first time a judge had made a public ruling and damages awards in phone hacking compensation cases. These are claims ?for damages for misuse of private information.  

Although there have been hundreds of claims against News Group Newspapers and Mirror Group Newspapers, no judge had previously set out the principles and the appropriate tariff  for damages in such cases.

In the News International Compensation Scheme, cases were decided by former High ?Court judge Sir Charles Gray but none of the awards were made public.

The previous ceiling for privacy awards was thought to be that set out in the Max Moseley judgment where after trial the judge awarded £60,000 for the very serious invasions of privacy ?in that case. There remained a question mark ?as to whether phone hacking claims would be governed by that upper limit or would result in higher awards, given the nature of the illegal information gathering employed by journalists ?in these cases.

The damages awarded in the Mirror Group cases by Mann J were at a level significantly higher than many previous settlements and awards.

The claimants had contended that there ?should be compensation for loss of privacy resulting from the hacking or blagging that went on; compensation for injury to feelings including distress; and compensation for ‘damage or affront to dignity or standing’.

The defendant argued that the compensation should only be for ‘distress or injury to feelings’.

Mann J ruled that there is no reason in principle why the court should not also make an award to reflect infringements of the right to privacy itself, ?if the situation warrants it. If one has lost ‘the right to control the dissemination of information about one’s private life’ he could not see why that of itself should not attract a degree of compensation in an appropriate case.

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 infringement 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).’

The judge held that the damages are truly compensatory. 

The claimants argued that the awards of damages should be made in relation to three strands of unlawful activities: 

• An award for voicemail interception activities; 

• An award for blagging of personal information; and 

• An award in relation to each article found to be the result of phone hacking.  

The defendant contended that each claimant should receive an overall sum for all wrongs, compensation for the overall distress caused.

The judge concluded that the court should ?take an approach which is appropriate to achieve the objective of a compensatory award. In some cases a global award will be appropriate and in others a more divided up approach will be suitable. ?In these cases he took the view that a global sum was not the correct approach. He accepted the claimants’ submissions that there are three areas of wrongful behaviour that needed to be considered:

• Infringement caused by the hacking;

• The investigations by private investigators; and

• The distress caused by each article published.

He made separate awards but ensured the overall sum appeared proportionate and a proper ?reflection of the pattern of wrongdoing.

In the eight cases before the court, damages awarded ranged from £85,000 for Alan Yentob ?to £260,250 for Sadie Frost. In her case there ?were 27 articles for which she was awarded compensation, along with £10,000 awarded in respect of the activities of private investigators, £30,000 for additional distress, and £37,500 for ?the invasions generally with no further award for aggravated damages.

The awards, in every case, exceeded the ?previous highest award for Max Moseley. Some commentators thought the awards were more comparable to those awarded in defamation cases.

Appeal

MGN appealed the damages awards which was heard by the Court of Appeal in October 2015. The judgment is likely to be delivered before Christmas.

Permission was granted on four grounds: 

• The damages awards were disproportionate compared to the scale of damages for personal injuries;

• The damages awards were disproportionate ?by comparison with awards made by the European Court of Human Rights for breaches of privacy;

• The judge erred in law in that there was double counting in the assessment of damages; and 

• The judge erred in law by failing 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.

It is thought the judge’s legal analysis will be difficult to challenge and the detailed analysis of the facts of each case are unlikely to be revisited ?by the Court of Appeal.?

Controversy

The Mirror Group’s chief executive, Simon Fox, ?and others in the media, questioned how compensation for phone hacking could come close to the amount awarded for deaths and personal injury caused by wrongdoing.  

There have often been comparisons between damages awards for personal injury and those in libel and privacy cases.

Most of the substantial awards in death or personal injury cases arise from claims for lost income, or other pecuniary loss, and can in some cases run into millions. Historically, however, the elements of damages awarded specifically for injury or death have been relatively low, hence?the controversy.  

For some years now the defamation practitioner has needed to have some familiarity with the standard tariffs for non-pecuniary loss in personal injury cases.  This is because in John v Mirror Group Newspapers [1997] QB 586 the Court of Appeal stressed that reference to personal injury awards may provide a useful cross check for reasonableness. Similarly, in the Gulati appeal, counsel for the claimants argued that the relevance of personal injury awards was just that, as a cross check but nothing more.  

We will now see how the Court of Appeal considers how such awards are relevant to privacy damages. It was argued that there was no obligation to align privacy awards with those for personal injury. The court could take such awards into account but this is purely permissive.

It remains to be seen how the Court of Appeal ?will resolve these matters and whether it will place a new ceiling on privacy damages or concur with the very lengthy and detailed judgment of Mann J.

Steven Heffer is a partner at  Collyer Bristow @Collyer_Bristow https://www.collyerbristow.com/

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