WXY v Gewanter & Ors

Damages for harassment and misuse of private information arising from the same publications should not be assessed separately and then added together where the harassment consists of actual and threatened disclosure. The assessment must reflect the distress caused by both the publication and the threats, including threats intended to exert financial pressure, regardless of the number of persons who accessed the material. The sensitive nature of the information, its potential effect on family life and the defendant’s financial motivation are relevant to seriousness and aggravated damages. An injunction restraining further publication is also relevant when deciding whether, and to what extent, additional vindication is required.

The claimant sought damages from the third defendant for misuse of private information, breach of confidence and harassment. Liability had previously been determined in the claimant’s favour following a trial before Slade J. The present judgment concerned the assessment of damages and an application by the third defendant for an adjournment and further directions.

The claimant relied on the existing findings and sought general damages for anxiety, distress and injury to feelings. The central issues were whether further evidence and pleadings were required, whether damages for harassment and misuse of private information should be separately assessed, and the appropriate award in light of the existing injunctions.

1. Application for adjournment. The application to take the assessment out of the list and order further directions was refused. The claimant had not sought permission to adduce further evidence, and the defendant, who had chosen not to participate in the trial, was precluded from challenging evidence given at it. General damages did not require pleading of a figure. Further directions would serve no purpose and would be disproportionate in litigation whose principal relief had been injunctive.
2. Single assessment. The distress found at trial resulted from both actual postings and threats to publish further private and confidential information. Harassment was therefore not a separate source of damage requiring a separate award from misuse of private information. The claims were assessed together, subject to avoiding double recovery.
3. Extent of access. Distress caused by threats was not dependent on the number of people who read the website. The defendant’s intention to use the threats to exert financial pressure was material, as was the claimant’s distress on learning that some people had accessed the postings. The case differed from defamation, where reputation damage is central.
4. Assessment. The guidance in Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871; [2003] ICR 318 was relevant, with adjustment for inflation. The seriousness of the case was increased by the deliberate financial pressure, the sensitive and personal nature of the information, and its potential interference with family life. The injunction was also taken into account as a form of vindication, following the approach illustrated by Citation Plc v Ellis Whittam Ltd [2013] EWCA Civ 155.
5. Damages were assessed at £24,950, including £5,000 aggravated damages.