Burrell v Clifford

A person who receives private information for one purpose must not use it for another without authority. Sending confidential material to a newspaper to test its commercial interest may constitute misuse even where publication does not occur. For misuse of private information, compensation may reflect both the wrong itself and the claimant’s distress. Assessment is broad and fact-sensitive, having regard to the nature and significance of the information, the extent and purpose of the misuse, its consequences, and aggravating or mitigating factors. The threshold question of privacy is objective.

The claimant, a former royal servant, sent the defendant, a media consultant, a private handwritten letter describing personal matters involving the Royal Family. The defendant later faxed the letter to the News of the World to explore whether it would buy a story. The claimant alleged breach of confidence and misuse of private information, denied authorising the fax, and relied on section 32 of the Limitation Act 1980 because the communication had been concealed.

The defendant maintained that the claimant had instructed him to broker the sale of the story. The issues were whether authority existed when the fax was sent, whether the claim was time-barred, and what compensation was appropriate.

1. Liability. The claim succeeded. The claimant had not authorised the defendant to market the contents of the letter. Any relationship between them had ended in or about April or May 2002, and the defendant’s fax of 2 November 2002 was a piece of pragmatic opportunism rather than an authorised act.
2. The claimant had approached the defendant for media assistance, but the arrangement remained inchoate. The letter was provided in circumstances of trust and was not supplied for marketing. The defendant’s evidence about continuing authority and a subsequent report-back conversation was rejected.
3. Limitation. The breach was deliberately concealed. The claimant could rely on section 32 of the Limitation Act 1980, and brought the claim within six years of discovering, or receiving a copy of, the fax.
4. Cause of action. In light of Vidal-Hall v Google Inc [2015] EWCA Civ 311, misuse of private information was treated as the more appropriate characterisation of the wrong. The elements of breach of confidence identified in Coco v A.N. Clark (Engineers) Ltd [1969] RPC 41 were nevertheless also satisfied.
5. Compensation. The court applied the guidance in Gulati v MGN Limited [2015] EWHC 1482 (Ch) and Representative Claimants v MGN Limited [2015] EWCA Civ 1291. Compensation could reflect the commission of the wrong itself as well as distress. Relevant considerations included the nature and significance of the information, the nature, extent and purpose of the misuse, its consequences, financial effects, policy factors, and aggravating or mitigating circumstances. The privacy threshold remained objective.
6. The information was personal but relatively low-level, the disclosure was limited, and the claimant had later published substantially the same material himself. Balancing those matters against the breach of trust and the claimant’s distress, the appropriate total award was £5,000.

The judgment was a first-instance trial decision. The judgment records that an earlier strike-out application in the same proceedings was dismissed by Mann J in 2015.