Representative Claimants v MGN Limited, [2015] EWCA Civ 1291, Arden, Rafferty and Kitchin LJJ, 17 December 2015

A, the proprietor of the Daily Mirror, The Sunday People and The Sunday Mirror newspapers appealed against the decision of Mann J, awarding substantial sums ranging from £72,500 to £260,250 to the 8 Rs for misuse of private information derived from intercepting voicemail messages left on the Rs’ telephones (i.e. hacking). The final awards were aggregate figures and amounted to the largest awards of damages made for misuse of private information. The awards contained 3 components: (1) damages for each published article, (2) damages for hacking or related activities which did not result in the publication of an article, and (3) damages for distress resulting from hacking. A appealed on 4 grounds: (1) the awards should have been limited to damages for distress; (2) the disproportionate when compared with, in particular, personal injury awards; (3) the awards were disproportionate when compared wit the less generous approach adopted by the ECHR; and (4) the awards involved double-counting.

The Court of Appeal, dismissing A’s appeals, held as follows. In respect of the first ground of appeal, Mann J had held that misappropriating private information without causing upset is still a wrong, and there was no reason in principle why the court could not make an award of damages to reflect the infringement if the circumstances warranted it. The law of privacy was concerned to protect matters such as personal autonomy, dignity and integrity. By misusing the Rs’ private information, A had deprived them of their right to control the use of the private information. Damages for misuse of private information were not the same as vindicatory damages to vindicate some constitutional right. They were to compensate for the diminution of a right of control of private information and distress.

As for Ground 2, the judge had had regard to the personal injury scale. Each invasion of privacy gave rise to a separate cause of action and a separate event giving rise to injury. The choice as to whether to make separate awards for each invasion of privacy or a global award was a matter for the exercise of judicial discretion. The judge’s approach was not plainly wrong, nor had he misdirected himself in law. There was no good reason to fix a tariff in this area of law.

In respect of Ground 3, the Court held that English law had only recently recognised a civil wrong for intrusions of privacy. The question of the measure of damages was more naturally one for domestic law. The conditions of the tort were governed by English law, and the national courts were better placed to assess the adequacy of an award than an international body.

Ground 4 was also rejected. The judge had directed himself that he had to avoid double-counting, and on occasion made allowance for each of the types of double-counting complained of by A, which showed that he was alive to these dangers. The appeals concerned an exceptional situation, and it was wrong to look at the global sums awarded to each of the Rs without remembering that fact.

The appeals were therefore dismissed. This is an important decision of the Court of Appeal which endorses Mann J’s comprehensive judgment awarding substantial damages to the Rs. While the situation was rightly described as exceptional, Mann J’s judgment and this judgment provide very useful analysis of the issues relating to damages in claims for misuse of private information.