Case Law: Cooper v Turrell – the assessment of damages for libel and misuse of private information – Hugh Tomlinson QC

On 12 December 2011 Mr Justice Tugendhat gave judgment on the assessment of damages in three actions by Matthew Cooper and Imaginatik plc (“the Company”) against Mark Turrell ([2011] EWHC 3269 (QB)).  The case provides an interesting example of the court’s approach to the assessment of damages for misuse of private information and their relationship to libel damages.   Mr Cooper was awarded privacy damages of £30,000 and, in addition, libel damages of £50,000.  The Company was awarded damages for breach of confidence of £10,000 and libel damages of £30,000.

Background

The case arose out of a dispute between the directors of the Company.  Mr Cooper is its Executive Chairman and Mr Turrell was its CEO.  In June 2010, Mr Turrell’s employment was terminated.  In the course of discussions about this dismissal Mr Turrell “bugged” the room and made a secret recording of a conversation between Mr Cooper and another director of the company, Mr Taylor.

During that conversation Mr Cooper told spoke privately to Mr Taylor. He said that in the previous 2 ½ weeks he had suffered certain symptoms. He described a 2004 earlier misdiagnosis of depression and said that he thought Mr Taylor ought to know about the recent symptoms. Mr Taylor is recorded as saying “Well thank you for telling me. And I promise I won’t tell anybody“. Mr Cooper responded “Well, and if it becomes such an issue that doing anything I will let you know“.

Having recorded this conversation, Mr Turrell made a number of false allegations about Mr Cooper’s health.  In a posting at his WordPress site Mr Turrell had embedded both the audio recording and the transcript of the meetings.  He had linked to this posting from his Twitter account (@mark_turrell).

Three actions were brought by the Claimants.  Firstly, a claim by Mr Cooper for misuse of private information.  Second, a claim by Mr Cooper for libel arising out of a voicemail left by Mr Turrell on the telephone of the Company’s solicitor, a series of emails and internet postings.  Ten publications were complained of. Third, an action by the Company for breach of confidence arising from the same audio recording and Mr Cooper’s action.

On 24 May 2011 Sharp J granted an interim injunction requiring Mr Turrell to remove the audio recording from his WordPress blog and he did so.

Mr Turrell failed to comply with a number of orders in the action and, as a result, on 21 June 2011 judgment was entered in default for damages to be assessed.  The assessment of damages hearing took place on 24 November 2011 in Mr Turrell’s absence.

At the trial the claimants did not rely on the presumption of falsity but called witnesses to prove that the allegations made were false.

Judgment

The Judge held that the voicemail bore the meanings attributed to it by the Claimants namely that

“1. The First Claimant is medically unfit to perform, and therefore incapable of fulfilling his functions and duties as a Company Director, including as a director of the Second Claimant.

2. The First Claimant was similarly unfit and incapable when he was recruited by the Second Claimant as a director, but although he was under a duty to disclose this to the Second Claimant, including to the Defendant, he failed to do so and so knowingly deceived both the Second Claimant and the Defendant.

3. Both the First and Second Claimants have knowingly and therefore dishonestly breached legal and regulatory duties that they are under to disclose the First Claimant’s (supposed) medical condition to the AIM market and its regulator”.

He also held that the various internet publications bore the similar meanings attributed to them by the Claimants.

The Judge set out the evidence of Mr Cooper in some detail ([37] -[52]).  Mr Cooper explained how he had, in the past, been misdiagnosed as suffering from depression.  He spoke about this publicly.  Following the publications complained of he felt compelled to, and did, make a formal announcement as to his true state of health both to the Board of the Company and to its workforce [43].  The Judge concluded by saying that he had “no doubt that Mr Cooper was telling the truth and the defamatory meanings which I have held that the words complained of bear are all false“.

The Judge held that the publication of defamatory words on a voicemail was plainly libel ([78]).  He rejected various defences advanced by Mr Turrell.

The Judge also granted a permanent injunction against Mr Turrell despite the fact that he was abroad.  This was subject to a Babanaft proviso – to the effect that it did not affect anyone outside the jurisdiction other than the defendant and others who are subject to the jurisdiction of the court or as are specified in the order itself ([84] -[88]).

The Judge then considered damages.  In relation to damages for misuse of private information, it was submitted on behalf of Mr Cooper that

“the damages awarded … should be very significantly greater than those awarded in the cases before Mosley. He refers to Mosley itself and to a number of settlements which are reported to have been reached at figures of between £20,000 and £37,500: see The Law of Privacy and the Media 2nd ed (OUP) para 13.115. In Mosley at para 229 Eady J directed himself to take into account awards in defamation cases, and referred also to Gleaner Company Ltd v Abrahams [2004] 1 AC 628. Since John v MGN Ltd [1997] QB 586 general damages in libel have been limited to a ceiling at that date of £200,000, following a comparison with personal injury damages. However, in Gleaner at para 53 the Privy Council noted that damages in libel were different: “The damages often serve not only as compensation but also as an effective and necessary deterrent.” [93]

The Judge accepted the submission that “the measure of damages in Mosley is a more appropriate guide to take than the damages in the earlier cases“. [106]

He also accepted that a modest award of damages for breach of confidence could be made to a company, even in the absence of proof of special damage [94].

In relation to the Company, he noted that the breach of confidence as serious “the more so because it involves information plainly the subject of legal professional privilege” and the words bore very serious meanings

“It is clear from the number of times that the matter has been raised by clients and prospective employees [and] … however wide (or limited) the initial publications may have been, the information published has been re-published widely amongst those interested in the affairs of the Company“. [100]

In these circumstances he awarded £30,000 damages to the Company for libel and £10,000 for breach of confidence.

In relation to Mr Cooper, there were a number of aggravating factors in relation to the libel.  The Judge also noted that

“Campaigns of libel and misuse of private information on the Internet are becoming an increasingly common form of wrongdoing. The value of the Internet and of search engines is that people using them do so because they believe that they will find true information, or at least that those who publish the information believe that it is true” [104].

The Judge’s conclusion on damages in relation to Mr Cooper’s two claims was as follows:

“I shall award £50,000 to Mr Cooper as damages for libel and an additional £30,000 for damages for misuse of private information. Since damages for libel include compensation for distress, I must avoid double counting. If I had been awarding damages for misuse of private information alone, I would have awarded £40,000 for that“. [107].

Comment

There are very few judgments which deal with the assessment of damages in privacy cases and this is a useful addition to the case law.  It also deals with a number of interesting points – one relating to liability and the others concerning remedies.    It also however be borne in mind that this was a judgment given without the benefit of legal argument from the defendant.

First, the Judge held that a message left on a voicemail is libel and not slander – the words used are recorded in a “permanent” form.   This confirms the analysis set out in the leading textbook, Gatley on Libel and Slander 11^th Edn para 3.8 [78]

Second, the Judge held that a company can recover damages for breach of confidence even where it has suffered no financial loss ([94]).  This is a point about which textbook writers had expressed some doubt and it is useful to have the point confirmed.

Third, the Judge granted a permanent injunction against the defendant – despite the fact that he was living abroad.  The defendant had originally submitted to the jurisdiction and had not advanced evidence that he had no assets in the jurisdiction or that the injunction would not be enforceable against him [86].   He also took into account the fact that

“If an injunction is granted, third parties within the jurisdiction can be notified of it, and will be likely to refrain from publications of the same or similar information, by which they would expose themselves to claims similar to those the Claimants make against Mr Turrell” [86]

In other words, although a final injunction does not take “Spycatcher” effect, its existence would be likely to deter third parties from making similar publications.

Fourth, the Judge assessed libel damages in respect of a “non-media” publication of a serious libel to a relatively small number of important publishees.  He pointed out that in 1993 the Court of Appeal had made an award of slander damages of £50,000 in respect of publication of an allegation of sexual harassment to a small number of individuals with whom the claimant had an existing professional relationship (Houston v Smith unreported December 16 1993; see Gatley on Libel and Slander 11th ed para A3.3) [97].   He made an award in the same sum to Mr Cooper and, in addition, an award of £30,000 to the Company.

Finally, the case is of particular interest because of the award of damages for misuse of private information.  This appears to be the first award by a court (as opposed to agreed settlement sums) since the decision in Mosley v NGN ([2008] EMLR 20) in July 2008.  The Schedule of Awards of Damages in Privacy Claims in Carter Ruck on Libel and Privacy (6th Edn, 2010, pp.1721-1725) lists 8 awards in the English courts between 2000 and 2008.  Before the Mosley decision, the awards ranged from £2,000 to £5,000.  This decision confirms that, after Mosley figures of this type are unlikely to be appropriate.  The award of £30,000 made in this case is the second highest – after the £60,000 awarded in Mosley.  The Judge indicated that, but for the award of libel damages (which also included compensation for injury to feelings), he would have awarded damages for misuse of private information of £40,000.  It should be borne in mind that this was a case where there was no media publication.  However, the fact that the private information which was published was known to the defendant to be false was an additional “element” in the award of damages.

This decision suggests that “misuse of private information” damages awards are likely to be higher in the future.   It is increasingly recognised that the claims for defamation and misuse of private information are both founded on the right to dignity and Article 8 of the European Convention on Human Rights.  This, in turn, suggests that the pre-Mosley position where radically different “scales” of damages were applied to the two types of claim is anomalous.  In future privacy awards are likely to be much more consistent with those made in libel cases.