On Friday 16 September 2011, the Court of Appeal in Northern Ireland (Morgan LCJ, Higgins LJ and Sir John Sheil) handed down judgment in the privacy claim of McGaughey v Sunday Newspapers Ltd. The narrow issue on the appeal was whether or not the action should be remitted to the County Court. McCloskey J had made an order remitting the case and the Court of Appeal upheld his decision ( NICh 7). But the case is of more general interest because the order was made on the basis of an assessment of the highest award of likely damages for misuse of private information.
The claim arose out of the publication of photographs of the plaintiff and his home in the “Sunday World” newspaper. These photographs were taken without consent and illustrated an article suggesting that the well known loyalist Johnny Adair (pictured right) was living there. The plaintiff’s claim for general damages included claims that, as a result of publication, he was spat on and abused and his house was vandalised on a number of occasions. He said that as a result he had to move home.
The test applied by the Judge and the Court of Appeal was whether, if the plaintiff proved all the key allegations made on his behalf, the value of the claim was likely to be less than the monetary limit of the County Court in Northern Ireland – £15,000. The burden of proving this was on the defendant.
The Court of Appeal said that the judge had “carefully reviewed the emerging jurisprudence on the appropriate level of damages for misuse of private information”  He had referred to Campbell v MGN  EWCA. Civ 1373 (£2,500 for misuse of private information, £1,000 aggravated damages), Archer v Williams  EWHC 1670 (QB) (£2,500 general damages for breach of confidence) and Douglas v Hello!  EWCA. Civ 595 (£3,500 general damages for distress).
The Court referred to what it described as the “helpful case” of Applause Store Publications –v- Firsht and Raphael  EWHC 1781 (QB) in which damages for misuse of private information of £2,000 were awarded (in contrast to libel damages of £15,000) . It noted that the only exception to the trend of modest damages was Mosley v. News Group Newspapers  EWHC 1777 (QB) where £60,000 damages were awarded. The Court described this as a “quite exceptional case”.
The Court’s conclusion was that
“If this had been a libel case based on a suggestion that the appellant had offered to provide a safe harbour for Adair, on the basis of the information available to us we would not have accepted a submission that the level of damages would fall within the present county court limit. We consider however that the thrust of the decisions on the misuse of private information demonstrate that modest damages are appropriate unless there are particular circumstances not associated with reputation which are properly taken into account” 
This case is a reminder that despite the some large reported settlements (and offers of settlement) the levels of misuse of private information damages awarded by the courts have, historically, been very low. However the case has a number of curious features which make it of very limited value in providing guidance on privacy damages.
First, the central complaint being made by the plaintiff concerned the link being made between him and a notorious loyalist, Johnny Adair. It might be thought that the obvious claim would have been in libel – for which legal aid is not available. In the absence of CFAs in Northern Ireland the plaintiff brought a privacy claim – with the benefit of legal aid. There is a clear inference that the court took a negative view of the artificiality of a privacy claim in these circumstances.
Second, even as a privacy claim the case did not appear to be a strong one. In contrast to, say, phone hacking cases, there does not appear to have been persistent intrusion into the plaintiff’s private life but simply a single incident involving the publication of what – apart from the defamatory context of publication – seems to have been an anodyne photograph of the plaintiff and his house. Although there was significant aggravation this appears to have resulted from the fact that the newspaper linked the plaintiff to Mr Adair rather than from any misuse of private information.
In short, the case was an a highly unusual one. Its main point is the obvious – but hardly surprising one – that cases in which the damages are likely to be small should, ordinarily, be brought in the County Court. It cannot be read as giving more general guidance as to the likely levels of damages in misuse of private information cases.
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