Representative Claimants v MGN Ltd [2015]

In Representative Claimants v MGN Ltd [2015] EWCA Civ 1291 (17 December 2015) this matter was heard before Lady Justices Arden and Rafferty and Lord Justice Kitchin in the Court of Appeal. In Gulati & Ors v MGN Limited [2015] EWHC 1482 (Ch) (21 May 2015) the claim had involved phone hacking, listening to voicemails left for celebrities by their friends and writing articles in the newspaper. The damages awarded were much greater than those awarded in earlier cases.

Mr Justice Mann had considered from the evidence before him the level of distress caused by the phone hackings and articles written about the Claimants, making varying awards to each of them. One of the Claimants was awarded £260,250 with another £85,000, each of the awards made by Mr Justice Mann had taken into account the levels of invasion of privacy, number of articles written and the pursuits of private investigators affecting the Claimants.

MGN Limited made an application to Mr Justice Mann for permission to appeal which he refused. Permission was later granted to them by Lord Justice Kitchin in August 2015.

The MGN appeal, on four grounds, was summarised in the judgment by Lady Justice Arden:

“(1) the awards should have been limited to damages for distress;

(2) the awards were disproportionate when compared with, in particular, personal injury awards;

(3) the awards were disproportionate when compared with the less generous approach adopted by the European Court of Human Rights (“the Strasbourg Court”), and

(4) the awards involved double-counting”.

Lady Justice Arden examined each of MGN’s grounds for appeal and found that:

Ground 1 (the awards should have been limited to damages for distress;)

She agreed with the submission presented by Counsel for the Representative Claimants, the Respondents in the matter “that Vidal-Hall is not authority for the proposition that damages for misuse of private information may be awarded only for distress and hurt feelings: that was the only form of damages claimed in that case. Furthermore, in his submission, the damages in this case are not vindicatory damages of the kind which the majority of the Supreme Court held in Lumba could not be awarded”.

She further agreed with his submission regarding vindicatory damages, damages arising from a breach of a person’s private rights do not equate with vindicatory damages to vindicate a constitutional right. She continued that in this matter the damages were awarded as compensation “for the loss or diminution of a right to control formerly private information” and the resulting distress to the Respondents felt by them having their private details accessed, the damages being “assessed by reference to that loss”. She rejected this ground for appeal.

Ground 2 (the awards were disproportionate when compared with, in particular, personal injury awards;)

Lady Justice Arden observed that the principal argument put forward by MGN was that each award made should be comparable to personal injuries compensation, being much less than awarded to the Respondents, which relied upon tarrifs set down by the courts as to discrimination, harassment and false imprisonment.

Lady Justice Arden examined the awards made by the Judge and considered them all to be very thoroughly and fairly dealt with by him, she believed the judge “had a considerable mastery of the facts of each case”.

She had noted that Lord Pannick, for the Appellant, had suggested a tariff be set for this area which he had not taken further. She considered the Court of Appeal could not fix a tariff within that area, there was no history of awards to refer to and circumstances change with each case. She dismissed the appeal.

Ground 3 (the awards were disproportionate when compared with the less generous approach adopted by the European Court of Human Rights (“the Strasbourg Court”),

She observed this had not been before Judge Mann. She noted this was “a new point, not taken before the judge, but it is a pure point of law so that it is not inconsistent with this court’s practice on appeals to permit it to be taken”.

She continued that if the Strasbourg Court did find a violation then a sum may be awarded to give “just satisfaction” under Article 41 of the Convention which is expressed within s.8 of the Human Rights Act 1998. She observed that Lord Pannick had submitted that a damages for privacy award should be viewed in the same way awards are made in the Strasbourg Court as law of privacy is within the European Convention on Human Rights. The awards made by that Court are much lower than the Judge’s awards for breaches of privacy.

Counsel for the Respondents had submitted that the courts were developing a tort of misuse of private information with the damages being assessed separately from the Strasbourg Court. Lady Justice Arden referred to Spelman v Express Newspapers (2012) where Tugendhat J had observed that awards for misuse of private information were likely to be increased.

Lady Justice Arden preferred Counsel for the Respondents submission. She continued “English law has only recently recognised a civil wrong for intrusions of privacy. Initially the law of confidence was expanded by reference to the values to be found in Articles 8 and 10 of the Convention. However an action for breach of confidence did not completely coincide with a right of action for pursuing private information in violation of Article 8”.

She observed that the court when making an award in respect of misuse of private information would not be proceeding under Article 41 of the Convention or s.8 of the Human Rights Act 1998 and dismissed the third ground of their appeal.

Ground 4 ( the awards involved double-counting).

Lord Pannick contended that there were three areas of double-counting, the awards for hacking were excessive and amounted to double-counting. The additional sums for upset and effect on relationships were covered by earlier awards and the thirdly, the Judge did not consider “the cumulative effect of the articles. The later articles would not have caused such distress as the previous ones. This was another cause of double-counting”.

Counsel for the Respondent contended that MGN could not produce any award which amounted to double-counting.
Lady Justice Arden noted that MGN had not drawn the Court’s attention to any particular award “which they contend is excessive or explaining the element of it which is on their case excessive. I have, as it happens, read the articles alongside the judge’s detailed rulings on them. It does not strike me reading them, in the light of the judge’s rulings and his factual findings, that any of them involved an error of law”.

She dismissed the appeals. Lady Justice Rafferty and Lord Justice Kitchin agreed.

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