On 17 December 2015, the Court of Appeal handed down judgment in a group of cases known as Gulati & ors v MGN Limited. The claims alleged serious breaches of privacy arising from stories that were published based on information gleaned from unlawfully intercepted private phone messages. The Court dismissed MGN’s appeal in full and upheld the judgment of Mr Justice Mann which had formulated a methodology for quantifying damages awards in privacy claims. This marks a significant departure from the previous received wisdom on the assessment of privacy damages.
Pre-Gulati, it was widely understood by practitioners that the upper tariff for damages awards for privacy claims was set by the case of Mosley v News Group Newspapers. In 2008, Mr Mosley was awarded £60,000 damages in respect of a very serious breach of his privacy arising from photographs published on the front page of the News of the World, which at that time had the largest circulation of any newspaper in the country. Mr Mosley was found to have suffered enormous damage, and as a result it was widely accepted that there was effectively a ceiling of £60,000 for privacy damages.
When Mr Justice Mann awarded very significantly higher privacy damages to Sadie Frost (£260,250), Paul Gascoigne (£188,250) and others in March 2015, his judgment created huge interest. The publisher Defendants seem to have assumed that there must have been some miscalculation. However, Mr Justice Mann’s methodology has withstood intense scrutiny in the Court of Appeal. Lady Justice Arden, who gave the leading judgment, paid tribute to his “careful and comprehensive judgment” and his “meticulous analysis” and was highly critical of the conduct of the publisher and its journalists. She concluded “MGN cannot expect this Court to come to its rescue and find some way of finding the awards to be excessive when its staff have been responsible for disgraceful conduct with such distressing consequences …”. Lord Justice Kitchin and Lady Justice Rafferty agreed.
Phone hacking, or “Mobile Voicemail Interception”, was undertaken in several ways. Once the perpetrator had accessed the victim’s voicemail, it was possible to access private messages by entering a PIN code, which was either the factory default, or an easily guessed alternative.
The vast majority of phone hacking was done on ‘pay as you go’ mobile phones, which would be disposed of after a time to prevent them being traced. The perpetrators were found to have gone to considerable lengths in order to conceal and indeed destroy evidence of their wrongdoing. As a result, Mr Justice Mann inferred that the evidence before him (of which a critical part was the landline call data from MGN’s offices) was just “the tip of the iceberg”. His judgment reached the following conclusions:
First, the judge ruled on the number of articles which had been generated from phone hacking and contained private information about the claimant and made a damages award for each article. In one case an analysis of 19 newspaper articles resulted in specific awards ranging from £750 to £20,000. It is worth noting that Mr Justice Mann did not exceed the traditional “Mosley tariff” for any individual article pleaded by the eight claimants. The highest individual award for a single article was £25,000 and that related to a very serious health-related privacy infringement.
Secondly, Mr Justice Mann awarded a global sum to the claimant for the general distress caused by the phone hacking. The claimants suffered distress and upset over a sustained period which caused great distrust and damage to their personal relationships. Sadie Frost went so far as to ask her own family to sign confidentiality agreements.
Thirdly, Mr Justice Mann awarded a sum to compensate each claimant for the intrusive nature of the hacking activities generally. Sadie Frost had been targeted more or less on a daily basis for over four and a half years, during which time her private voicemail messages, and those of her close friends and family, were routinely accessed without permission.
Fourthly, Mr Justice Mann made an award for the activities of private investigators instructed by MGN who had unlawfully put many of the claimants under surveillance.
The judge then calculated the total damages award for each claimant. On appeal, MGN asserted that Mr Justice Mann had strayed into double-counting, but when pressed on this point by the Court of Appeal, MGN were unable to identify any example.
This decision, as endorsed by the Court of Appeal, accordingly represents a more detailed and extensive approach to the calculation of damages for breaches of privacy than was previously understood to apply. It may in turn be a reflection on and reaction to the increasingly sophisticated methods by which the modern media seek to obtain information on which to base “news” stories.
On 7 January 2016 MGN applied to the Supreme Court for permission to appeal. At the time of writing the outcome of this application is not known. However, unless the Supreme Court not only grants permission but also makes a finding that Mr Justice Mann’s methodology is fundamentally flawed, a Claimant whose privacy has been breached on multiple occasions can reasonably expect a much higher damages award in the future.