The Court of Appeal has dismissed Mirror Group's appeal against the record-breaking damages awards made in favour of eight phone hacking victims: Gulati and others v MGN[2015] EWCA Civ 1291.  Those awards ranged from £72,500 for the flight attendant Lauren Alcorn to £260,250 for Sadie Frost, the ex-wife of the actor Jude Law. Even the lowest of Mann J's awards exceeded the sum of £60,000 awarded to Max Mosley in Mosley v News Group Newspapers [2008] EMLR 20, which was until Gulati the highest award of damages for misuse of private information.

The Court of Appeal approved the methodology employed by Mann J, which involved the aggregation of separate elements of damages to reflect (a) the fact of hacking, (b) the use of private investigators, (c) the publication of articles resulting from hacking, and (d) general distress not otherwise compensated.

MGN's primary ground of appeal was that the total sums awarded by the judge to each of the claimants were excessive and disproportionate and failed properly to take account of the appropriate scale of damages in cases of personal injury, discrimination and harassment.  MGN submitted it was wrong for claimants in these cases, none of whom had suffered any lasting harm, to be awarded a multiple of the sums they would have received for life-changing injuries such as brain damage and deafness causing long-term disability.

The Court of Appeal accepted the authority of John v MGN [1997] QB 586 and Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 which demonstrate a "fundamental principled reason" [61] why there should be a reasonable relationship between damages for misuse of private information and damages for other torts.  It nonetheless found that the judge had taken proper account of awards in other cases and none of his awards in this case were perverse or otherwise such as he had not been entitled to make.

It is unclear how the Court of Appeal reached this conclusion.  The Court held that he was not obliged to make a global award (as MGN had urged him to do at trial).  It analysed the three highest awards he had made, i.e. the highest individual components of his aggregate awards.  It noted that MGN had not challenged the reasonableness of those individual components and concluded there would have been no basis for it to have done so as there was "clearly" no basis for saying that the size of the awards was perverse or the awards were not ones the judge was not properly entitled to make.

But this overlooks the reasonableness of the aggregate award made to each claimant.  The effect of the judgment is that the Court has placed a considerably higher value on a person's right to privacy than on a person's lifelong disability.  That appears to be directly contrary to the Court's acceptance of the authority of John and Vento, the reasoning of which the Court correctly noted was that:

 "if there is no such consideration or relationship [between privacy and other awards], the reasonable observer may doubt the logic of the law or form the view that the law places a higher value on a person's right to privacy than it does on (say) a person's lifelong disability as a result of another's negligence, and this would bring the law into disrepute and diminish public confidence in the impartiality of the legal system."

MGN's three other grounds of appeal were also rejected.  Perhaps the most important of those other grounds was MGN's submission that the judge was wrong to hold that damages could be awarded for the mere intrusion into a person's privacy irrespective of any distress suffered.  The Court recognised the importance of the point as potentially reducing the damages by a significant amount [45].  But it decided that the claimants were indeed entitled to be compensated for the loss of control of their information as well as the distress caused.  In doing so they distinguished the House of Lords authority of Murray v Ministry of Defence [1988] 1 WLR 692.  In that case the HL expressed the view that a person who was falsely imprisoned but suffered no harm and was released before he found out he had been falsely imprisoned, should recover only nominal damages.

At [47] Lady Justice Arden said the factual difference between Murray and the hacking cases was that in the hacking cases the judge "accepted that the [claimants] had suffered damage in that their private information had been misappropriated and had genuinely suffered considerable distress when they had found out about the hacking of their phones and other activities of MGN."  But this is surely to compensate claimants twice for the same loss as it is the loss of control that causes the distress.  It could equally be said of the person falsely imprisoned without his knowledge that he has been deprived of his personal freedom and autonomy.  But the House of Lords expressly rejected the notion that this formed a proper basis for compensation without proof of distress. 

MGN is seeking permission to appeal to the Supreme Court.