Gulati and others v MGN Ltd: Court of Appeal, Civil Division: 17 December 2015

Damages – Measure of damages – Infringement of privacy rights – Judge awarding claimants substantial sums for misuse of private information – Defendant newspaper proprietor appealing 

The claimants were all prominent people: actors, sportspersons or other well-known individuals, or persons associated with them.

The defendant was the proprietor of three newspapers. The judge awarded substantial sums, ranging from £72,500 to £260,250, to the eight claimants for misuse of private information derived from intercepting voicemail messages left on the claimants’ telephones (hacking). The judge’s awards contained three components: (i) damages for each published article; (ii) damages for hacking or related activities which did not result in the publication of an article; and (iii) damages for distress resulting from hacking. The final awards were aggregate figures representing the largest awards of damages yet made by the courts for breach of a person’s privacy.

The defendant appealed against the damages awarded.

It submitted that: (i) the awards should have been limited to damages for distress and injury to feelings and not for the fact of intrusion into a person’s privacy; (ii) the awards had been disproportionate when compared with, in particular, personal injury awards; (iii) the awards had been disproportionate when compared with the less generous approach adopted by the European Court of Human Rights (the ECtHR); and (iv) the awards had involved double-counting. Consideration was given to, among other things, to section 8 of the Human Rights Act 1998 and to article 41 of the European Convention on Human Rights.

The appeals would be dismissed.

(1) The judge had been correct to conclude that the power of the court to grant general damages was not limited to distress and could be exercised to compensate the claimants also for the misuse of their private information. The essential principle was that, by misusing their private information, MGN had deprived the claimants of their right to control the use of private information.

The claimants were entitled to be compensated for that loss of control of information as well as for any distress, though the amount of compensation might be affected if the information would, on the facts, have become public knowledge anyway. The scale of the disclosure was a matter which went to the assessment of the remedy, not to its availability.

Damages in consequence of a breach of a person’s private rights were not the same as vindicatory damages to vindicate some constitutional right. In the present context, the damages were an award to compensate for the loss or diminution of a right to control formerly private information and for the distress that the claimants could justifiably have felt because their private information had been exploited, and were assessed by reference to that loss.

Accordingly, the first challenge to the judge’s awards would be rejected (see [45], [48], [49], [111], [112] of the judgment).

Murray v Ministry of Defence [1988] 2 All ER 521 considered; R (on the application of Lumba) v Secretary of State for the Home Department; R (on the application of Mighty) v same [2011] 4 All ER 1 considered; Vidal-Hall and others v Google Inc (The Information Commissioner intervening) [2015] All ER (D) 307 (Mar) considered.

(2) Taking account of personal injury compensation did not mean that the outcome in the field had to be exactly the same. The choice between whether to make a global award or separate awards for invasions of privacy had to be a matter for the exercise of judicial discretion. The following approach would be adopted for any future cases where the same or similar points arose.

First, the subject matter of the disclosure was not a rigid guide to the amount of compensation. However, certain types of information were likely to be more significant than others. Second, information about significant private financial matters was also likely to attract a higher degree of privacy and, therefore, compensation, than others.

Third, by contrast, information about a social meeting which was used to get a photograph was, of itself, likely to attract a lower degree of privacy (in terms of compensation), though it was capable of being magnified by other factors, such as contributing to a sense of persecution.

Fourth, information about matters internal to a relationship would be treated as private. The amount of compensation payable would depend on the nature of the information listened to and disclosed, in part on the amount of distress and upset caused and in part on the effect on the relationship. Information which was disruptive of the relationship, or which was likely to affect adversely the attempts of the couple to repair it if that was what they were trying to do, was likely to be treated as a serious infringement deserving substantial compensation. Fifth, further categorisation was not realistically possible.

Sixth, the appropriate compensation would depend on the nature of the information, its significance as private information, and the effect on the victim of its disclosure. Seventh, the effect of repeated intrusions by publication could be cumulative. What started out as irritation or embarrassment on the first disclosure could become a justified persistent feeling of distress or upset on repeated disclosures.

However, that was subject to one small qualification, namely, that, logically, it was possible that the cumulative effect would mean that additional distress was less rather than increased as a result of repeated disclosures of private information. Eighth, the extent of the damage might be claimant-specific. A thinner-skinned individual might be caused more upset and, therefore, receive more compensation, than a thicker-skinned individual who was the subject of the same intrusion (see [32], [62], [68], [74], [75], [111], [112] of the judgment).

There was no doubt that the judge had had regard to the personal injury scale. The real question was whether the judge had achieved the reasonable relationship between that scale and his awards.

That question resolved itself by reference to whether the judge had been right to adopt an ‘atomised’ approach in making his awards and breaking down the awards into three components. The present court could only interfere in the exercise of the judicial discretion to make separate awards if it was satisfied that the judge had been plainly wrong or misdirected himself in law, which had not been demonstrated in the present case. There was, further, no ground of appeal directed at challenging the choice the judge had made. Having considered all of the awards which the judge had made, they had been thorough and fairly done in every case.

The judge’s general approach would be adopted as guidance for any future cases where the same or similar points arose, subject to the small qualification regarding cumulative effect (see [63], [68], [70], [74], [75], [111], [112] of the judgment).

John v MGN Ltd [1996] 2 All ER 35 considered; Thompson v Metropolitan Police Comr [1997] 2 All ER 762 considered; Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102 considered.

(3) The court, when making an award for misuse of private information, was not proceeding under either section 8 of the act or article 41 of the convention. The question of the measure of damages was more naturally a question for English domestic law for two reasons. First, the conditions of the tort were governed by English law and not the convention. That again made it more appropriate for English domestic law to assess the measure of damages.

Further, if damages awarded for misuse of private information within the law were excessive, there would be appropriate ways for the national authorities to reduce them. They would not have to wait to be given a lead by the ECtHR. Second, national courts were intrinsically better able to assess the adequacy of an award in their jurisdiction than an international body. That was one of the bases in which the ECtHR was likely to recognise that there was a margin of appreciation in its jurisprudence (see [89], [111], [112] of the judgment).

(4) In the circumstances, it was impossible to conclude that the judge had fallen into error and that there had been any double-counting. He had been clearly well aware of the need to be mindful of the risk of double-counting and the need to eliminate it in fairness to the defendant. It was not a case in which the judge had been bound to have stood back and looked at the position in its totality. It would not have led to the appreciation of any points which would merit some scaling back of the awards. It might be appropriate to have an overall review there were mitigating circumstances, but there had been none at all.

The defendant could not expect the present court to come to its rescue and find some way of finding the awards to be excessive when its staff had been responsible for disgraceful conduct with such distressing consequences and when, to boot, it was quite unable itself to point to actual awards that it contended were wrong (see [103]-[106], [111], [112] of the judgment).

Decision of Mann J [2015] All ER (D) 199 (May) affirmed.

David Sherborne and Jeremy Reed (instructed by Atkins Thomson Ltd as lead solicitors for Atkins Thomson Ltd, Clintons, Hamlins LLP, Steel & Shamash and Taylor Hampton Solicitors Ltd) for the claimants; Lord Pannick QC and Matthew Nicklin QC (instructed by Reynolds Porter Chamberlain LLP) for the defendant.