The Supreme Court has refused MGN Limited permission to appeal the decision in Representative Claimants -v- Mirror Group Newspapers Ltd  EWCA Civ 1291 – the Court of Appeal’s decision regarding the appropriate level of damages in eight phone-hacking ‘test cases’. This decision itself was an unsuccessful appeal by MGN against the High Court decision in Gulatti & Ors v MGN Limited  EWHC 1482
With the sole leading judgment, which can be found here, given by Lady Justice Arden, the Court of Appeal was asked to consider the test for the measure of damages arising from misuse of private information.
Eight claimants brought an action against MGN Ltd for the infamous phone hacking scandal. Private investigators intercepted voicemail messages left on the claimants’ phones (“hacking”) and those of related individuals (“farming”), and falsely acquired personal information (“blagging”). MGN has now admitted liability for misuse of private information, but appealed the damages awarded against it.
At first instance, Mann J awarded substantial damages in relation to the misuse of private information by way of several categories or heads of recoverability. Figures for each discrete wrong caused were found by the Court of Appeal to reflect the degree, scope, repetition and distress caused by the invasion of privacy.
The appellant MGN, argued that the award of damages were excessive on four grounds. Arden LJ rejected each in turn:
(1) the awards should have been limited to damages for distress; [paras. 39-49]
Privacy is a fundamental right. The invasion of and misuse of private information breaches the private right to control one’s own private information. The award fell squarely within compensatory damages and not vindicatory damages, Lumba not applied, and therefore recovery for distress was permitted. Vidal-Hall distinguished as not including a claim beyond distress, so was necessarily limited.
(2) the awards were disproportionate when compared with, in particular, personal injury awards; [paras. 50-77]
The awards were not disproportionate and principles of personal injury awards were not undermined. Damages are a matter of discretion for the trial judge and should not be disturbed unless so high as to be perverse. It is not enough that an appellate court would have made a different award. In any event the awards made were held to have been thorough and fairly reached in every case. Further, there is no principle in personal injury that there must be global, not atomised awards, nor is there finality in any personal injury or Vento guidelines. The very existence of ranges of damages reflects that there are many different factors which will vary in every case.
(3) the awards were disproportionate when compared with the less generous approach adopted by the European Court of Human Rights (“the Strasbourg Court”), [paras. 78-89]:
Misuse of private information is not a section 8 Human Rights Act 1998 or Article 41 of the Convention claim. Therefore, comparison is not relevant as the claims are still within the English domestic law of tort. Nevertheless, even under the label of ‘just satisfaction’ national courts are intrinsically better able to assess the adequacy of any award in their jurisdiction than an international body, so comparisons are not binding.
(4) the awards involved double-counting [paras 90-109]:
In rejecting this ground of appeal, Arden LJ noted that Mann J was well aware of the risk of double counting in fairness to MGN. He dealt with it sensitively within his methodology, deductions/discounts or other allowances. Further MGN raised no disputes over factual findings which were the basis for sums awarded per article or per year of hacking, and there were no mitigating circumstances. Further, given the old principle (in Armorie v Delamirie) where evidence is destroyed or missing as to the value and extent of the wrongdoing, the judge at first instance was entitled to take the wrongs at their highest value.
The ruling of Arden LJ reminds appellants that the pertinent question is whether the trial judge was entitled to make the awards that he did. Damages are not an exact science, and are essentially factual findings. In the absence of any error in law, MGN could not point the court to a single award and demonstrate why it was excessive.
Our thinking is that both first instance and appeal decisions provide good guidance on the damages recoverable for misuse of private information. The Supreme Court has now affirmed this. Mann J’s considerations are helpfully set out at paragraphs 32 and 35 of the appeal.
Let us note that misuse of private information is certainly not limited to nominal awards; rather substantial damages are likely to be commonplace. A new legal services market develops.