#6695 - Mosley V. Newsgroup Newspapers - Commercial Remedies BCL

Mosley v. News Group Newspapers

Should exemplary damages be awarded for breach of privacy/confidence? (Breach of ECHR)

I nevertheless indicated that in the light of the authorities my provisional view was that the plea should be disallowed in the context of a claim founded on privacy and/or breach of confidence.

The cause of action now commonly described as infringement or breach of privacy, involving the balancing of competing Convention rights, usually those embodied in Arts 8 and 10, has recently evolved from the equitable doctrines that traditionally governed the protection of confidential information. Now (and especially since the formulation by Lord Nicholls in Campbell) it is common to speak of the protection of personal information in this context, without importing the customary indicia of a duty of confidence. The question arises whether it may now be correct to apply the label of “tort” to this expanded cause of action. I was referred to some authorities which would certainly suggest not.

Meanwhile, in order to come to a decision myself, I have to address the authorities as they stand. There is certainly no English authority which establishes that exemplary damages are recoverable in the context of this newly developed form of action. In the absence of any positive decision, it would involve something of a departure for a judge now to hold that such damages are indeed available on the list of remedies for infringement of privacy. Such an extension would require to be based presumably upon an analogy to be drawn with existing categories of case where such damages have been awarded.

Kuddus does not justify an unlimited expansion of exemplary damages: Much attention was focused by Counsel upon the decision by the House of Lords in Kuddus to the effect that it is not appropriate to limit the application of exemplary damages purely by reference to what was called the “cause of action test”; that is to say, merely by reference to those torts in respect of which it could be established that there had been an award of exemplary damages prior to 1964 (i.e. when Rookes v Barnard was decided). Accordingly, in Kuddus itself, it was held that it had been inappropriate to strike out the claim for exemplary damages simply on the basis that it related to the newly developed (or newly discovered) tort of misfeasance in public office.

I believe it to be significant that their Lordships' remarks were confined to categories of tort. It is not suggested either by Lord Scott or by any of his brethren that the potential extension he recognised (while regretting it) would go so far as to embrace breach of confidence or any other equitable or restitutionary claim.

Is Exemplary damages justified by Art. 8 and 10 of the Convention?

There can be no doubt that what Mr Price seeks to do is to extend the scope of exemplary damages beyond any point hitherto recognised. It is clearly not a course which would have commended itself either to Lord Scott or to Lord Reid. What is more, as I have already noted, the context is one which engages freedom of expression and the balancing of rights enshrined respectively in Arts 8 and 10 of the Convention. That is why it was necessary to address such matters as necessity and proportionality and also whether such an extension could be characterised as “prescribed by law”.

It is trite knowledge that punitive damages are anomalous in civil litigation in a number of respects. First, they bring the notion of punishment into civil litigation when damages are usually supposed to be about compensation. Secondly, the defendant's means can be taken into account because these damages are in some ways analogous to a fine: see, e.g. the remarks of Lord Reid in Cassell v Broome at 1086. Thirdly, despite that, every such sum awarded goes not to the state itself, as is the case with a fine, but to the claimant in the litigation. It represents to that extent a windfall. Fourthly, in the context of those civil claims where a jury is still available, it is the jury rather than the judge which determines the amount of the appropriate penalty.

Mr Price argues that it would be inconsistent to acknowledge the possibility of exemplary damages for libel but not for invasion of privacy, since both causes of action are directed to protecting rights under Art. 8. So it may be, but claims for exemplary damages in libel (albeit awards are very rare) have long been recognised. As Lord Reid pointed out, it is a different matter to make an extension by judicial intervention.

It was argued by Mr Warby, since a claim for invasion of privacy nowadays involves direct application of Convention values and of Strasbourg jurisprudence as part of English law, that it would be somewhat eccentric to graft on to this Convention jurisprudence an alien anomaly from the common law in the shape of exemplary damages—not apparently familiar in Strasbourg. I agree with that submission.

I therefore rule that exemplary damages are not admissible in a claim for infringement of privacy, since there is no existing authority (whether statutory or at common law) to justify such an extension and, indeed, it would fail the tests of...