Representative Claimants v MGN Ltd

Damages for misuse of private information may compensate both the claimant’s distress and the loss of control over private information. They are compensatory damages, not impermissible vindicatory damages.

Where there are repeated and distinct invasions of privacy, the judge has a discretion to make separate awards or a global award. Awards must avoid double-counting and should bear a reasonable, though not exact, relationship to personal-injury awards. No tariff is appropriate for privacy claims, whose circumstances vary greatly.

The measure of damages for this domestic tort is governed by English law. It need not be aligned with awards of just satisfaction made by the Strasbourg court.

MGN appealed against damages awards made to eight representative claimants for misuse of private information. The claims arose from sustained interception of voicemail messages, related investigative activity, and the publication of articles derived from the information.

At first instance, Mann J made aggregate awards comprising compensation for published articles, unpublicised hacking and related activity, and distress. His decision is reported at [2015] EWHC 1482 (Ch).

MGN challenged the awards on four grounds: compensation should have been limited to distress; the awards were disproportionate by comparison with personal-injury and other awards; Strasbourg awards should constrain quantum; and the judge had double-counted loss.

1. Appeals dismissed. Lady Justice Arden, with whom Lady Justice Rafferty and Lord Justice Kitchin agreed, held that the judge had been entitled to make the awards.

2. Misuse of private information deprives a person of the right to control its use. That loss is compensable independently of the distress caused by discovering the misuse. Damages for that loss remain compensatory; they do not constitute a separate award of vindicatory damages prohibited by R (Lumba) v Secretary of State for the Home Department [2012] 1 AC 245. The extent to which information would otherwise have become public affects quantum, not the availability of compensation.

3. Privacy awards for non-pecuniary loss must have a reasonable relationship with personal-injury awards, consistently with John v MGN [1997] QB 586. There is, however, no exact correlation: the injuries and relevant considerations differ. Each invasion of privacy gives rise to a separate cause of action. Whether damages should be assessed globally or by separate components is a matter of judicial discretion, subject to the need to prevent overlap and double-counting.

4. The court endorsed the first-instance judge’s case-specific approach. The seriousness of the information, its private significance, the extent of disclosure, the effect on relationships and the claimant, and the potentially increasing or diminishing cumulative effect of repeated disclosures are all relevant. A fixed tariff would be unsuitable.

5. The domestic tort is not an award under section 8 of the Human Rights Act 1998 or Article 41 of the Convention. Strasbourg awards of just satisfaction therefore did not govern the assessment. English courts are better placed to assess adequate compensation within their own jurisdiction.

6. The judge had expressly guarded against double-counting between awards for articles, general hacking, investigative activity and distress. MGN identified no particular award affected by error. Its incomplete records did not prevent adverse inferences or proper compensation for wrongdoing whose full extent it had obscured.

• Court of Appeal (Civil Division): MGN’s appeals were dismissed: [2015] EWCA Civ 1291.
• High Court of Justice, Chancery Division: Mann J awarded damages to the representative claimants for misuse of private information: [2015] EWHC 1482 (Ch).