In a judgment handed down today ( EWCA Civ 1291) Arden, Rafferty and Kitchin LJJ dismissed an appeal by MGN against the awards of damages made by Mann J in the Mirror Group Phone Hacking Litigation in his judgment  EWHC 1482 (Ch), following the trial of damages claims by eight representative claimants in March this year. The trial judgment was handed down on 21 May 2015.
On 10 June 2015, MGN applied to Mann J for permission to appeal and was refused. Permission was however granted by Kitchin LJ in August 2015. The appeal was expedited and was heard on 20 and 21 October 2015.
MGN appealed on four grounds:
- That privacy damages are limited only to claims for distress.
- That the damages awarded were too large when compared to personal injury damages.
- That the damages awarded were too large when compared to ECHR cases.
- That the damages awarded were too high because of double counting.
Ground 1: The judge should have awarded damages for distress only
MGN’s argued that there could not be an award of damages solely on the grounds of an infringed right, in this case the right to Privacy. It was argued that there had to be some damage which was limited to distress or hurt to feelings, which could be proved before damages were awarded, citing Vidal-Hall v Google Inc. As such, damages could not be awarded simply to punish a party for infringing someone else’s rights.
The respondents pointed out that in AAA v Associated Newspapers and Weller v Associated Newspapers; children have been awarded damages despite being oblivious to their privacy rights being violated. It was argued that Vidal-Hall did not apply as distress and injury to feelings were the only form of damages claimed in the case.
The Court of Appeal agreed that depriving the respondents of their right to control their own privacy was a ground of damages and that damages were not limited to distress: “the respondents are entitled to be compensated for that loss of control of information as well as for any distress.” They also agreed that Vidal-Hall did not assist because there was no claim in that case beyond damages for distress.
As a result the first ground of MGN’s appeal was dismissed.
Ground 2: The awards were disproportionate when compared with the tariff in particular for personal injury awards
On the second ground, MGN’s argued that the court was obliged to take the damages awarded in personal injury cases into account when they considered privacy damages. They further invoked guidelines to libel juries which stated that these awards were a good indication as to the scale of damages and guidelines for damages for workplace harassment.
The respondents argued that the judge was entitled, as a matter of discretion, to decide to make multiple awards for each claimant; one for each article complained of, another award for phone hacking which did not cause articles to be published, and another for damages for distress resulting from hacking. Furthermore, there was no challenge to the decision to “atomise” the awards (as it was put by MGN) or, rather, make separate awards for each act or category of wrongdoing (as it was put by the respondents). They also argued that none of the personal injury or harassment types of damages were compelling analogies with privacy. Personal injury was argued not to be a proper guide for awarding damages in libel relying on the judgment of Lord Hoffman in the Privy Council in The Gleaner Co Ltd v Abrahams  1 AC 628.
The Court of Appeal held that the Mann J neither made a material error in law nor awarded judgments so high as to be perverse. Agreeing with the respondents they held that the judge, in his discretion, was entitled to make multiple awards and there was no challenge to that decision. As a result the second ground of MGN’s appeal was dismissed.
Ground 3: The awards were disproportionate compared with awards by the Strasbourg Court
This was a point not raised at trial. MGN’s counsel argued that, given that the provision for privacy in British law was based on the European Convention, that awards of damages in the European Courts should be used as a guide in the British courts. The awards in the European Court are typically of an order of magnitude less than those in British courts.
The respondents contended that this was a fundamental misunderstanding of how the courts in Strasbourg awarded damages. They argued that damages in the European Court for just satisfaction are discretionary, furthermore they pointed out that the European Court upheld the £60,000 damages awarded to Max Mosley, despite the fact that this is much larger than anything they would typically award.
The respondents also pointed out that there has been much water under the bridge in relation to British privacy law since its inception, especially with regards to the tort of misuse of private information, and that the analogy with Strasbourg law no longer holds.
The Court of Appeal agreed with the respondents on both points, stating that “the court, when making an award for misuse of private information is not proceeding under either section 8 of the Human Rights Act 1998 or Article 41 of the Convention.” In other words the link between European Convention and the tort of misuse of private information has been definitively broken.
The Court went on to state that: “national courts are intrinsically better able to assess the adequacy of an award in their jurisdiction than an international body.” As a result the third ground of MGN’s appeal was dismissed.
Ground 4: Some elements of the awards were counted twice
MGN argued that there were three areas of double counting in the original judgment: first, in relation to damages for articles and damages for general hacking; second, the award of a sum for general upset, which it was contended was covered by other awards for distress; and third, double counting relating to the cumulative effect of the articles, the contention being that each additional amount of distress would decrease as the appearance of articles continued.
The respondents argued that the judge meticulously recorded throughout his judgment that he was not falling into these errors. The Court of Appeal agreed with this analysis pointing out many instances where the original judge deducted damages in light of overlap and in order to avoid double counting.
As a result the fourth ground of MGN’s appeal was dismissed.
The appeal by MGN against the original judgment was emphatically rejected on all grounds. The Court of Appeal found that Mann J’s original judgment was thorough, fair and well-reasoned and (with the exception of a few extraneous details) correct in its entirety. Indeed, they went much further and they concluded with some scathing comments.
Arden LJ (with whose judgment the other members of the court agreed) said that as far as she was concerned “there were no mitigating circumstances at all.” That those employed by MGN “repeatedly engaged in disgraceful actions and ransacked the respondents’ voice mail to produce in many cases demeaning articles about wholly innocent members of the public in order to create stories for MGN’s newspapers.”
She said that the journalists were “totally uncaring about the real distress and damage to relationships caused by their callous actions” and “the disclosures were strikingly distressing to the respondents involved.”
Arden LJ’s judgment concludes as follows:
“In the present case, MGN has asked the court to reduce the awards without, as the respondents point out, taking the court to so much as a single award which they contend is excessive or explaining the element of it which is on their case excessive. I have, as it happens, read the articles alongside the judge’s detailed rulings on them. It does not strike me reading them, in the light of the judge’s rulings and his factual findings, that any of them involved an error of law. The test is not whether I would have made exactly that award – the assessment of general damages is not an exact science – but whether he was entitled to make the awards that he did. 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, and when to boot it is quite unable itself to point to actual awards that it contends are wrong .
These appeals, hopefully, concern an exceptional situation. There were misuses of private information beyond our ability to know and count. So it is wrong to look at the global sums in the schedule which each respondent has been awarded without remembering that fact. In addition the circulation of the private information was to a very large number of persons and touched on the most intimate part of the lives of the some of the respondents. It understandably caused great distress .”
Whilst clearly scathing of Mirror Group’s conduct in its conclusion, the Judgment does end by expressing, optimistically, that this type of behaviour will be a thing of the past. It is hard to share such optimism in light of the recent decisions of the CPS made on the same core evidence.
James Heath, Senior Associate, Atkins Thomson is the Lead Solicitor for the Representative Claimants/Respondents to this appeal and is Lead Solicitor for hacking claims against MGN Limited, currently co-ordinating over 80 claims in the Second Wave of the litigation.