Can’t pay? Court of Appeal does not take claimants’ damages away (but neither will it increase them)
In Ali & Anor v Channel 5 Broadcasting Ltd  EWCA Civ 677, the Court of Appeal considered whether countervailing privacy and the public interest/freedom of expression rights had been properly balanced, together with the appropriate award of privacy damages arising from footage of an eviction shown on Channel 5, the Defendant in this action.
“Can’t Pay? We’ll Take It Away” is a documentary series on Channel 5 focusing on the work of High Court Enforcement Agents (“HCEA”) as they execute Writ of Possessions across England and Wales. The Claimants, Shakir Ali and Shahida Aslam, featured in the programme after they had fallen behind with their rent and eventually stopped paying altogether.
After initiating legal proceedings, the landlord, Mr Rashid Ahmed, obtained an Order for possession, which he decided to enforce through a High Court Enforcement Officer (“HCEO”), Ms Sandbrook, who was assisted by two HCEAs, Mr Bohill and Mr Short. On 2 April 2015, these individuals attended the Claimants’ home to enter the property and obtain possession for the landlord (i.e. evict the tenants). This was filmed by a television production company called Brinkworth Films Ltd and edited footage of the evidence was broadcast by the Defendant. It is the broadcast of the footage that forms the subject of the claim.
The decision at first instance
The matter was tried in the Chancery Division of the High Court, with Mr Justice Arnold presiding.
The Claimants confined their complaint to the information conveyed by the images of them and of their home and the details of what happened during the eviction. They asserted that the broadcasting of this information amounted to a misuse of their private information and sought damages. The Defendant denied that the Claimants had a reasonable expectation of privacy, alternatively that, if the Claimants’ Article 8 rights were sufficiently engaged, they were outweighed by the Defendant’s right to freedom of expression given the public interest in the matter.
In his judgment (Ali & Anor v Channel 5 Broadcast Ltd  EWHC 298 (Ch)) Arnold J accepted that the Defendant’s programme did contribute to a debate of public interest, but considered that the inclusion of the Claimants’ private information went beyond what was justified for that purpose. For the Defendant’s disclosure of what Arnold J found to be “fairly sensitive” private information to 9.65 million viewers, he awarded each Claimant £10,000. In assessing the distress caused to the Claimants, the Judge took into consideration two short videos of the Claimants being evicted from their property which had been published on Facebook and other social media accounts by Omar Ahmed, the son of the landlord. These videos came to the attention of the Claimants’ friends, relatives and acquaintances. Arnold J concluded his judgment by stating that he would have awarded a higher figure of damages to the Claimants had it not been for these social media postings.
The Claimants appealed their award of damages while the Defendant cross-appealed the finding of liability. As the Court of Appeal’s decision on quantum is arguably of more significance to media law practitioners (and indeed those clients considering whether to issue privacy claims), that element of the appeal is addressed first.
Three grounds were advanced by the Claimants to support their contention that damages were too low. The first was that the award to each Claimant of £10,000 was “clearly wrong” because it did not bear a reasonable relationship with (a) the scale and nature of publication and (b) the distress caused to each of the Claimants. The second ground was that Arnold J erred in taking into consideration the social media postings by the Ahmeds when determining the quantum of damage. The third ground was that the Judge made a further mistake by failing to take into account the impact of the programme on the Claimants’ children.
In support of the first ground, the Claimants relied heavily on Gulati v MGN Ltd  EWHC 1482 (Ch), upheld by the Court of Appeal in Representative Claimants v MGN Ltd  EWCA Civ 1291. It was submitted on behalf of the Claimants that “an award of £277 per Claimant in respect of each broadcast to a quarter of a million viewers” was far too low, particularly when the Judge at first instance had accepted the Claimants (and especially the Second Claimant) had suffered genuine and substantial distress from the broadcast.
Rejecting the Claimants’ submissions in this regard, the Court of Appeal held that Arnold J had correctly taken account of the principles set down in Gulati and that the figures awarded to the Claimants in the present case were not “inordinately low” when compared with the range of awards in the phone-hacking case. Of perhaps more interest was the distinction drawn by the Court of Appeal between the awards of damages that should be granted where the wrongdoer maliciously discloses private information and those where there is no element of bad faith. As for the latter, the Court of Appeal expressed the view that there should be a reduction to the award for distress, “since the impact of deliberate illegality should be regarded as greater and more distressing.” This appears to be the first endorsement by an appellate court of the approach taken by Mr Justice Mitting on this issue in the case of TLT v (1) The Secretary of State for the Home Department and (2) The Home Office  EWHC 2217.
The two remaining grounds of appeal in relation to quantum were also dismissed. In respect of the social media postings, the Court of Appeal held that the Judge was bound to take these into consideration pursuant to section 12(4)(a)(i) of the Human Rights Act 1998 which requires the Court to have regard to the extent of information already available in the public domain. The Court of Appeal also found that the Judge did properly consider the potential impact on the Claimants’ children, thereby dismissing the third ground of appeal.
The crux of the Defendant’s appeal on liability was that the Judge took too narrow a view of what was in the public interest, restricting it to the High Court process when there were other genuine matters of public interest, such as increasing levels of personal debt or the dependence of tenants on benefits. While the Court of Appeal agreed that the issues underlying the programme extended well beyond the specifics of High Court process, it was satisfied that the Judge attached sufficient weight to these issues when carrying out the balancing exercise between the competing Article 8 and 10 rights. The Court of Appeal also found that the Judge paid due regard to the key principle that, where there is a rational view by which the public interest can justify publication, a Court should make allowance for editorial discretion and be slow to interfere.
That the Court of Appeal did not interfere with the Judge’s finding on liability is perhaps less surprising than its reluctance to reverse the Judge’s decision on damages. As the Court of Appeal acknowledged, appellate courts should always be slow to interfere with the trial judge’s carrying out of the balancing exercise where the judge has taken into account all relevant matters, which Arnold J did here. These types of case will generally be fact-specific, requiring a careful balancing of competing rights; the Court of Appeal’s decision is certainly not a death knell for “fly on the wall” documentaries, like PJS v News Group Newspapers Ltd (Rev 1)  UKSC 26 was for the “kiss and tell” tabloid stories.
The logic behind the decision on damages is perhaps more difficult to understand, particularly when it comes to the comments on how cases of deliberate dissemination of private information should be distinguished from cases where there is no question of bad faith. The information in question in the present case was found to be “fairly sensitive”, it had been disclosed to a very wide audience and the Claimants’ evidence of significant distress had been accepted by Arnold J at first instance. All of these factors would ordinarily militate in favour of an award of general damages far in excess of £10,000 for each Claimant, although without the Claimants identifying “a wrong principle of law”, the Court of Appeal felt that it could not intervene.
There is certainly an argument that in many privacy cases the publisher’s motivations for publishing private information will have little, or no, bearing on the distress suffered by the victim. If, for example, a mainstream newspaper published on its front page the previously unknown fact that a celebrity was HIV positive, then it would be unlikely to materially matter whether it was a bona fide publication, or one that was chiefly calculated to cause the subject significant embarrassment and distress. In other words, whether the disclosure was made in bad faith or not would likely pale into insignificance compared to the substantial distress suffered by fact that such sensitive information was now ‘out there’, available to the world at large. The claimant’s evidence of distress should be considered on a case by case basis, and it is this author’s view that courts should be loath to draw a conclusion that a claimant must have suffered less distress as a result of a disclosure made in good faith (if that is what the Court of Appeal intended). The fundamental principle of civil damages is that they are compensatory and not punitive. Thus, the starting point should surely be that motive is of limited application.
Insofar as the publisher’s intention is a relevant consideration when determining damages, it could be raised in support of a plea for aggravated damages. It is well-established that, as a matter of principle, aggravated damages are available to claimants when suing for misuse of private information. The principle behind aggravated damages was expounded by Lord Reid in Broome v Cassell (No 1)  AC 1072 when he stated:-
“It has long been recognised that in determining what sum within that bracket should be awarded, a jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a highhanded, malicious, insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said.”
The Editors of Tugendhat and Christie The Law of Privacy and the Media (Third Edition, 2016) state “deliberate and sustained disclosures of private information may fall into the category of aggravating conduct”. It would thus seem more appropriate for issues pertaining to whether the disclosure was made in bad faith to be considered when determining aggravated damages, if pleaded, rather than presupposing in each case that deliberate illegality will necessarily cause greater distress. Victims will of course be affected in different ways, and if the tort has been committed in a manner that has aggravated the injury then it remains open to the claimant to seek aggravated damages.
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Articles are intended as an introduction to the topic and do not constitute legal advice.