MGN appeals against hacking awards in Gulati case

MGN today sought permission to appeal against the very large awards of damages made by Mr Justice Mann in the eight test claims in the hacking litigation arising out of voicemail interception at Mirror Group Newspapers.

Permission was refused by the Judge. MGN will now seek permission from the Court of Appeal.

MGN would have accepted a judgment that awarded the victims of hacking fair compensation. It has apologised to those people whose voicemail messages were hacked by its journalists and agreed to pay them compensation. MGN's quarrel is over the amount of the compensation the judge has ordered. The smallest award was £85,000. The largest was £260,250. If permission is granted by the Court of Appeal in due course, MGN will argue that these awards bear no proper relation to the injuries suffered, to previous awards in comparable cases or indeed to the value of money itself.

Substantial as the awards against MGN were, the eight claimants had pressed the trial judge for even larger sums, as the following table shows: 

The trial in March 2015 related to eight "Representative Claimants" who had been selected to run their claims to trial to enable damages to be awarded in those claims and, in doing so, provide guidance for other similar claims against MGN. The purpose of an appeal is therefore not just to reduce the damages payable to the eight Representative Claimants, but to provide a more suitable framework for the settlement of future claims. 

Why did the Court make such large awards of damages?

 MGN submitted at trial that each claimant should receive a single award representing the extent of the perceived distress caused by the wrong-doing. In particular, MGN said the Court should apply the tariff for assessing injury to feelings that was established in Vento v Chief Constable of West Yorkshire.

Mann J rejected this submission, preferring the "layered" approach urged on him by the Claimants. His approach was to build up the sum of damages awarded by way of separate layers as follows: 

1.  An award for each and every article that was either admitted or held to be the product of voicemail interception and/or blagging. Some of these awards were modest (£750), others much greater (£40,000).  In addition, for certain claimants, a separate award in relation to the articles was made for any additional elements of distress that were held not to have been encapsulated by the single awards given for each individual article. These additional elements included additional anxiety or distress caused by the pattern of intrusion evidenced by the articles or the general and accumulating upset, suspicion and undermining of relationships to which the publications gave rise.
2. A separate award for the hacking to compensate generally for the relevant invasions of privacy. This head of damages seems to have been broken down further into the following sub-heads:
   1. damages for frequency and longevity of hacking (which included a sum of £10,000 for each year of hacking); and
   2. damages for general distress and the long term effects of hacking (such as effect on relationships).
3. A separate award for the blagging of personal information via private investigators; and
4. An award for aggravated damages.

The Court repeated a number of times in the judgment that despite the inherently overlapping nature of the various heads of damages described above, it had considered and avoided any double counting. However the process by which the Court achieved this is not explained in any detail in the judgment.

The Court also stated that a final review of the aggregated damages awards had been undertaken to ensure overall proportionality. Again this process is not fully explained in the judgment and is hard to understand by reference to existing authorities on damages for non-pecuniary loss.

The grounds of appeal

 The grounds on which MGN sought permission to appeal were as follows: 

(a)        The awards are out of all proportion to the harm suffered when consideration is given to the accepted scale of damages for personal injuries. The judge erred by proceeding on the basis that the global award did not need to be proportionate to that scale and that he could focus on compensation by adopting a "single wrong by single wrong" basis for compensation.

(b)        The size of the awards is disproportionate by reference to awards by the European Court of Human Rights for breaches of privacy.

(c)        There has been double-counting in the awards of damages: first in awarding damages for the fact of hacking, having already made awards for published articles; second for awarding an additional sum for general upset and effect on relationships; and third for treating each article in isolation.

(d)        The judge was wrong to reject MGN's submission that damages for breach of privacy are compensation for injured feelings and are not intended to mark wrongdoing, such damages being vindicatory in effect and therefore contrary to the principles stated in Lumba v Secretary of State for the Home Department. 

Louise Turner is a Senior Associate at RPC who act for MGN Limited in these proceedings