Representative Claimants v Mgn Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice Arden,Lady Justice Rafferty,Lord Justice Kitchin
Judgment Date17 December 2015
Neutral Citation[2015] EWCA Civ 1291
Docket NumberCase No: A3/2015/2136-2143
Date17 December 2015

[2015] EWCA Civ 1291

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Mr Justice Mann

[2015] EWHC 1482 (Ch)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice Arden

Lady Justice Rafferty

and

Lord Justice Kitchin

Case No: A3/2015/2136-2143

Between:
Representative Claimants
Respondents
and
Mgn Limited
Appellant

Lord Pannick QC and Matthew Nicklin QC (instructed by RPC) for the Appellant

David Sherborne and Jeremy Reed (instructed by Atkins Thomson as Lead Solicitors for Atkins Thomson, Clintons, Hamlins, Steel & Shamash and Taylor Hampton) for the Respondents

Hearing dates: 20 —21 October

Lady Justice Arden

Principal issue: level of compensation for phone hacking

1

These appeals are brought by MGN Limited ("MGN"), proprietor of the Daily Mirror, The Sunday People and The Sunday Mirror newspapers, against the orders dated 11 June 2015 of Mann J, awarding substantial sums ranging from £72,500 to £260,250 to the eight respondents to these appeals for misuse of private information derived from intercepting voicemail messages left on the respondents' telephones (referred to below as "hacking"). I have set out details of the awards in the schedule, together with particulars of the sums contended for at trial.

2

The judge had to compensate the respondents for numerous acts of hacking, and so the final awards are aggregate figures representing the largest awards of damages yet made by our courts for breach of a person's privacy. Moreover, the judge's careful and comprehensive judgment, to which I pay tribute, is one of the first to contain a detailed analysis of how such damages are to be calculated. These appeals are also test cases: there are some seventy other cases of the same kind which have been commenced, and in addition, MGN has received some fifty other letters of claim.

3

It might be thought that this would be an occasion when this Court would consider generally the appropriate level of awards for obtaining and publishing private information. MGN's case on appeal, however, has been put on four distinct grounds. We are not invited to travel beyond those issues and the facts of these cases. That said, in my judgment, this Court can give important guidance which will reduce some uncertainty as to the appropriate level of awards and thus save legal costs.

4

Hacking is the process whereby a person, who has no authority to do so, accesses voice messages left on another's phone if the owner of the phone has not protected his voicemail box by a personal identification number ("PIN") or has done so by a PIN which was easy to decode. Depending on their content, the messages could be used to piece together stories about the caller or the owner of the phone. Information might be sought from other sources, including the voicemail boxes of individuals who had left messages in the respondents' voicemail box, to do this (a process which was called "farming").

5

If the owner of any hacked phone made substantial use of voicemail, a great deal of information could be obtained. This was transcribed and given to journalists and in many cases, private investigators were instructed to follow up stories or photographers were sent out to places (often those mentioned in phone messages) to obtain a photograph to accompany the story. The fact of hacking could not be revealed by the newspaper in the published article but the ruse was adopted of quoting an unnamed source said to be "close" to the subject of the article or an unnamed friend.

6

Private investigators were also given the task of finding out the telephone numbers of people whom the newspaper had identified as targets for their hacking (including those who left messages in voicemail boxes already hacked) or their phone and credit card bills and medical information. This information was sometimes obtained by "blagging": that is, by the investigator pretending to be a third party, such as a telephone services supplier, that he was the particular person or was, say, an aide to that person and authorised to obtain the desired information, or persuading them to part with the information by some other pretence. More details of hacking, blagging and farming are given in the judge's judgment (paras. 6 – 10, and 12).

7

The information obtained was often newsworthy. The respondents are all prominent people: actors or sportspersons or other well-known individuals, or persons associated with them. The newspapers listed in paragraph 1 of this judgment published the private information which it obtained through hacking when they saw fit to do so in newspaper articles, but this did not always happen. MGN did not, however, publish any article about Mr Yentob using private information obtained about him through hacking his phone.

8

The judge's awards contained three components: (1) damages for each published article; (2) damages for hacking or related activities which did not result in the publication of an article, and (3) damages for distress resulting from hacking. Lord Pannick QC, for MGN, has referred to the judge's approach as an "atomised" approach because he did not award simply a global sum to each respondent.

9

The four grounds of MGN's appeal may be summarised as:

(1) the awards should have been limited to damages for distress;

(2) the awards were disproportionate when compared with, in particular, personal injury awards;

(3) the awards were disproportionate when compared with the less generous approach adopted by the European Court of Human Rights ("the Strasbourg Court"), and

(4) the awards involved double-counting.

10

Before I consider the arguments on these four grounds and my conclusions on those arguments, I set out the judge's relevant findings and reasoning on these points taken from his careful and comprehensive judgment.

11

MGN does not challenge the judge's very detailed findings of fact. It has not asserted any justification for invading the respondents' privacy on any occasion in issue in these proceedings. Nor does MGN argue that any of the awards interferes with the freedom of the press. MGN belatedly apologised for its employees' wrongdoing, but the respondents considered that what was said was too little and too late. MGN did not rely on the content of those apologies at the oral hearing of these appeals.

MANN J'S FINDINGS AND REASONING RELEVANT TO THE FOUR GROUNDS OF APPEAL

Scale of the hacking

12

The judge accepted that it was not possible to state how extensive the hacking had been (Judgment, para.36). Tapes of voicemail messages hacked were not saved, nor were transcriptions of those tapes (Judgment, para. 53(iii)). Considerable steps were taken to conceal the source from the eventual story (Judgment, para.54). The evidence of a Mr Evans, one of the key witnesses, was that Mr Yentob's phone was a particularly rich source of stories (Judgment, para. 61). Emails were destroyed. Interception was often effected from Pay As You Go Mobile phones ("PAYGM") (to avoid easily traceable communications). These were periodically destroyed so that there was no accurate data as to the total number of interceptions. The purchase invoices for these phones were not complete. Landlines were used as well but this, the judge accepted, "was only the tip of the iceberg" (Judgment para.77). Moreover, the judge concluded that that material supported the conclusion that there was a widespread culture of hacking extending from journalists to more senior staff (Judgment, para. 72).

13

The judge considered the modern jurisprudence on the principle in Armory Delamirie (1722) 1 Strange 505, which enables adverse inferences of fact to be drawn against a wrongdoer who has parted with relevant evidence. So the gaps in MGN's records did not prevent him making findings against MGN, for example as to the period and frequency of hacking and the likelihood of hacking having produced the source of various articles (Judgment, para.96).

14

The judge concluded that the hacking was both extensive and serious:

(iii) Considerable areas of the private life, or the private affairs, of each of the claimants will have been revealed, going a long way beyond stories that were published. Each of the claimants gave evidence that the use of voicemail was a very significant part of their personal communications, and I accept that evidence. That means that their exposure was great. I also find that it is likely that a very substantial amount of this material will have passed to journalists other than those who listened to the voicemails. It is likely that there will have been discussions about it amongst the journalists either as a matter of salacious gossip, or as part of discussion as to whether to publish or develop a story. In all events, aspects of their private lives will not have been confined to single journalists actually listening to the voicemails. This would be a sensible inference anyway, but it is strengthened by the Armory v Delamirie principle. Again, however, it has to be kept within bounds. It was not the case that everything that was heard was shared with all journalists and more senior personnel. That would not be realistic.

(iv) Each private investigator invoice which can be matched to a claimant represents an invasive activity. That much has been admitted by the defendant. Precisely what that invasion was is not known, and cannot be identified on the evidence. In one or two cases (as will appear) there are indications of what the information was that might have been obtained, and I shall draw appropriate inferences in that context. Otherwise the appropriate inference is that on each occasion the information...

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