Mosley v News Group Newspapers Ltd

Exemplary damages should not be extended by judicial analogy to claims concerning privacy or personal information merely because the claim engages Articles 8 and 10. The remedy remains confined to recognised common-law categories or express statutory provision. Nevertheless, a claim for exemplary damages in this developing area should not be struck out before trial where material factual issues remain and the court cannot be certain that the claim must fail. The pleading must identify a specific case of deliberate or reckless unlawfulness and a calculation that the anticipated gains would outweigh likely damages. That calculation may be inferred from the prominence and presentation of the publication; a precise computation is unnecessary.

The claimant brought proceedings for breach of confidence or invasion of personal privacy arising from the publication by the defendant, publisher of the News of the World, of material and images obtained through a hidden camera. Before trial, the defendant sought to strike out the claim for exemplary or punitive damages.

The application raised whether exemplary damages were available in this developing form of privacy claim, whether the claim could be based on vicarious liability, and whether the pleading sufficiently alleged the necessary knowledge or recklessness as to illegality and calculation of likely gains. The court also considered whether those issues could properly be determined without evidence.

1. Strike-out application. The claim was not struck out. In an area of developing jurisprudence, novel questions of law should ordinarily be determined against findings of fact. A pleading should not be struck out unless the court is certain that the claim is bound to fail, particularly where serious factual issues require oral evidence.
2. Availability of exemplary damages. Exemplary damages remained confined to the recognised common-law categories, or to cases expressly authorised by statute. The court was not prepared at this stage to extend the remedy by analogy to privacy claims involving the balancing of Articles 8 and 10 of the European Convention. The availability of aggravated damages, including damages capable of reflecting the court’s disapproval, was relevant to whether punishment was necessary or proportionate.
3. Required pleading. The claimant had to identify facts capable of establishing deliberate or reckless unlawful conduct and a calculation by an identified person or persons that the gains from publication would outweigh the likely damages. A general allegation that newspapers publish for profit was insufficient. However, a precise calculation was unnecessary and could be inferred from matters such as an eye-catching headline, an “Exclusive” caption, front-page prominence or equivalent website promotion.
4. Factual issues. Whether the publication engaged privacy rights, whether the defendant knew or was reckless as to illegality, and whether any public-interest justification was honestly and reasonably considered were matters requiring evidence. The defendant’s evidence denying the necessary calculation could not be assumed to prevail before cross-examination.
5. Further pleading. Any amendments based on matters emerging from witness statements were to be pleaded so that the allegations of dishonesty, recklessness or poor journalism were clearly crystallised. The claim was allowed to proceed to trial.

First-instance decision. No appellate history was stated in the judgment.