The Supreme Court judgment in PJS may give encouragement to claims for exemplary or punitive damages for misuse of private information.

It has, of course, been held at first instance in Mosley v News Group Newspapers Ltd that exemplary or punitive damages are not recoverable at common law for misuse of private information. However, in the lead judgment, given by Lord Mance and with which Lord Neuberger, Lady Hale and Lord Reed agreed, today the Supreme Court noted that the point remained “open to argument at higher levels” and that a claim for an account of profit is “likewise open”.

In his dissenting judgment Lord Toulson stated that he did not regard Mosley as the “final word on the subject.” “Proportionality is essential,” he said, “but I would not rule out the possibility of the courts considering such an award to be necessary and proportionate in order to deter flagrant breaches of privacy and provide adequate protection for the person concerned.”

Lord Mance noted that sections 34-36 of the Crime and Courts Act 2013 might open up the statutory possibility in the future of obtaining an award of exemplary damages against a publisher who is not a member of an approved regulator. These sections allow a court to make such an award if it were satisfied that a publisher’s conduct “has shown a deliberate or reckless disregard of an outrageous nature for the claimant’s rights”, that “the conduct is such that the court should punish the defendant for it” and that “other remedies would not be adequate to punish that conduct”. He noted that no approved regulator currently exists, so the section has no application to the present case.

The debate on privacy which will follow today’s decision must surely include discussion about why, over three years after the publication of the Leveson Report, we still do not have the approved regulator, which would allow sections 34-36 to take effect, and about when it may be appropriate for the court to impose heavy sanctions.