17
Jul
20
Articles, Public Sector & Human Rights
Damages for MPI – Part 2 – Aggravated and exemplary damages and claims for special damage

Last week I looked at the basic principles of general damages in claims for the misuse of private information (“MPI”).  Below is a basic overview of how claims for aggravated and exemplary damages along with pecuniary loss are dealt with in MPI claims.

Aggravated damages

It is clear from the authorities that aggravated damages will be available where the actionable conduct is particularly “highhanded, malicious, insulting or oppressive”[1], they are intended to compensate a Claimant “for injury to his proper feelings of dignity and pride and for aggravation generally[2]. The relevant guiding principles were set out in Gulati v MGN Ltd [2015] EWHC 1482 (Ch) at [203-6] where Mann J drew from Underhill J’s reasoning in Commissioner of Police for the Metropolis v Shaw [2012] ICR 464:

(i)            Aggravated damages are compensatory, not punitive.

(ii)           They are, at least usually, an aspect of injury to feelings. The aggravating factors cause greater hurt, and thus increase the damages.

(iii)          There are typically three aspects of conduct of the defendant which are capable of triggering an aggravated damages award – (a) the manner in which the wrong was committed, (b) motive and (c) subsequent conduct.

(iv)         The third of those factors can include the manner in which the trial (and a fortiori the litigation as a whole) is conducted by the defendant.

(v)          A separate figure for aggravated damages can be given; or it can be wrapped up in one overall figure. Underhill J tended to favour the latter course.

In Gulati (a case involving an infringement of unusual severity and also substantial illegality) the claimant sought aggravated damages of 100% of general damages. Mann J rejected that amount and held it would be an extremely rare case where such an award was warranted. Aggravated damages of an unspecified amount were nonetheless awarded and included in the overall general damages award.

In Brown v Commissioner of the Police of the Metropolis and Chief Constable of Greater Manchester Police [2016] Claims Nos. 3YM09078 & A53YP250 (CC at Central London), the police had improperly collected and used data from the National Border Targeting Centre (which was managed by the Greater Manchester Police) for use in an internal disciplinary investigation.  A claim for aggravated damages was rejected however on the principal basis that the Defendant had not “engaged in a flagrant intrusion into the private life of the Claimant or in the broadcasting or wide dissemination of private information about her” [56].  While it was clear that systems and training needed to improve “aggravated damages are not an appropriate tool to use to achieve service-improvements and better respect for the protection of personal data.

An example of a claim where aggravated damages were awarded is Bull v Donna Desporte [2019] EWHC 1650 (QB).  The Defendant was in a relationship with the Claimant from late 2016 to mid-2017.  The Claimant had some public prominence having won £41 million on the national lottery in 2012.  In 2017 the Defendant wrote and published a book that was primarily about her relationship with the Claimant.  The claim for misuse of private information arose out of 36 passages in the book that contained information about the Claimant’s relationship with his children, his former wife, his physical health and details of the sexual relationship he had had with the Defendant.  On 20 December 2017 the Claimant obtained an interim non-disclosure order (INDO) that restrained the publication of the information.  The Claimant, in purported compliance with the INDO, made minor changes to some names, but the prohibited information was retained in the published version of the book.  The Court found that the reader of the redacted version, could with a simple internet search, find out that the Claimant was the person named in the book.

The Court awarded £10,000 as general damages for the misuse of the Claimant’s private information.  Turning to the question of aggravated damages Mr Justice Julian Knowles accepted the Claimant’s submission that such damages should be awarded, largely on the basis that the Defendant had breached the terms of the INDO:

The Defendant well understood what she was doing and that it was in breach of the INDO. She acted as she did in order to continue to sell the Book containing the Information and so to benefit economically. On the other hand, as I will explain below, the actual number of copies of the Book sold following the INDO was modest.”

As such £2,500 was awarded as aggravated damages and it is important to note that the motive of the Defendant, as well as the impugned conduct that lay behind it, was part of the Court’s reasoning in determining that aggravated damages were justified.

Exemplary damages

While the award of aggravated damages follows well understood principles in claims for MPI a more confusing picture is seen when considering exemplary damages.   As the law presently stands, there is some uncertainty as to whether exemplary damages can be awarded in an MPI claim. In Mosley v News Group Newspapers Ltd [2008] E.M.L.R. 20, Eady J noted at [235]:

 

It is necessary, therefore, to afford an adequate financial remedy for the purpose of acknowledging the infringement and compensating, to some extent, for the injury to feelings, the embarrassment and distress caused. I am not persuaded that it is right to extend the application of exemplary (or punitive) damages into this field or to include an additional element specifically directed towards “deterrence”. That does not seem to me to be a legitimate exercise in awarding compensatory damages.

 

More recently, however, Lord Mance in PJS v News Group Newspapers Ltd [2016] UKSC 26 noted at [42]: “Mr Browne further notes, with reference to the first instance decision of Mosley that it has been held at first instance that exemplary or punitive damages are not recoverable at common law[3] for misuse of private information. On the other hand, the contrary remains open to argument at higher levels, and whether an account of profits might be claimed is likewise open.”

The circumstances in which exemplary damages can be awarded were set out by the House of Lords in Rookes v Barnard [1964] A.C. 1129. Three categories of cases were envisioned: i) where there is oppressive, arbitrary or unconstitutional conduct by government servants; ii) where the conduct is calculated to result in profit; and iii) where the award of exemplary damages is authorised by statute.

Was not the Defendant in Bull guilty of conduct calculated to result in profit? The Court found that her behaviour in failing to abide by the terms of the INDO was motivated by a desire to make money from the publication of her book, and so would seem to fit squarely within the second of the Rookes examples.  Given the increasing respect the Courts are showing to the importance of personal information and privacy, if in future a case falls within any of the categories in Rookes v Barnard and it goes to the Court of Appeal or higher there is certainly an arguable case to be made that  exemplary damages should apply in MPI claims.

Pecuniary loss

Claims for pecuniary loss in MPI cases are relatively rare. Nonetheless, where it occurs, it will be recoverable provided the claimant can make out causation and remoteness.

A recent case in which pecuniary loss was considered (though not quantified) was the decision in Sir Cliff Richard v (1) BBC, (2) The Chief Constable of South Yorkshire [2018] EWHC 1837 (Ch). In that case, Sir Cliff suffered significant losses after the search and investigation of his property was made public by the BBC. Mann J was asked to consider for the purposes of future resolution a number of issues of ‘special damages’.  It was held that Sir Cliff was entitled to recover:

  • the cost of a book advance that was lost as a result of the MPI;
  • the legal costs associated with correcting and stopping publications in the media that occurred as a result of the publication;
  • the legal fees associated with taking down a Facebook page; and
  • the costs involved with dealing with a blackmail attempt arising from the story.

Claimants will want to pay careful attention to Mann J’s analysis at [370-430] if it is thought that a pecuniary loss has arisen as a result of the MPI.

Overlap with other causes of action

Claims for breach of confidence and breach of the DPA 1988 will often be brought in tandem with a claim for MPI. There is a notable absence of judicial reasoning setting out the subtly different principles governing quantum for each claim and often they are treated for the purposes of quantum as the same: see for example Warby J in Reid v Katie Price [2020] EWHC 594 (QB) at [49]. In practice, the Courts will nearly always adopt the MPI claim as the ‘preferred claim’ for analytical purposes or at any rate determine quantum in accordance with the principles outlined above and in last week’s article.  A helpful analysis of the overlap between claims brought under the DPA 1988, the HRA 1988 and MPI is set out by HHJ Luba QC in Brown.  HHJ Luba QC noted that MPI as a tort has advantages for claimants in that aggravated damages can be claimed as can damages for the loss of the right itself (per Gulati): [43].

Moreover, since Sir Cliff Richard’s case it is also apparent that damages can be brought for damage to reputation, which is a particularly noteworthy advantage and may see the MPI tort used in situations that would traditionally be the territory of defamation.

Arguably the Court of Appeal’s decision in Richard Lloyd v Google LLC [2019] EWCA Civ 1599 has had the effect of lessening (though not extinguishing) the advantages the MPI tort has over a claim brought under the DPA 1988 as the Court held that the decision in Gulati (which was only concerned with MPI claims) applies equally to claims brought under section 13 of the DPA 1998. The effect of this is that claimants in a data protection claim can bring a claim for damages solely on the basis of the loss of the right to control their own information and without having to show pecuniary loss or distress. On 11 March 2020, the defendant was granted permission to appeal to the Supreme Court, so it remains to be seen whether this will remain the position.

Irrespective of the outcome of that litigation, MPI is a tort whose scope and application has seen a rapid increase and its potential to alter the landscape of how public and private bodies view the use of information is profound.

 

[1]  Lord Reid at 1085 in Broome v Cassell (No1) [1972] AC 1072

[2] Daley v Ramdath (1993) H.L.R 273

[3] But nb ss.34 – 36 of the Crime and Courts Act 2013 in relation to publishers of “news-related material”

Written by or involving: Ian Clarke

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