Reference:  EWHC 3269 (QB)
Court: High Court, QBD
Judge: Tugendhat J
Date of judgment: 12 Dec 2011
Summary: Libel - breach of confidence - misuse of private information - assessment of damages - injunctions
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Jonathan Barnes QC (Claimant)
Instructing Solicitors: Marriott Harrison for C
The Defendant was the chief executive officer of the Second Claimant company. His appointment was terminated at a meeting at solicitors’ offices between him and two directors of the Second Claimant, one of them being its executive chairman and the First Claimant in this action. Following the termination, the Defendant moved to another meeting room, while the parties negotiated a separation agreement. However, he left behind in the first meeting room an audio recording device. This recorded the company’s discussions with its solicitors as to how to handle the fall out from the termination, including legal advice given in confidence, as well as a conversation between the First Claimant and another director in which the First Claimant mentioned some medical symptoms that he had suffered. The Defendant then embarked on an extensive voicemail, email, Twitter and blogging campaign, by which he disclosed the audio recording he had made and a full transcript of it. He also made a number of highly damaging allegations concerning the nature of his departure from the Second Claimant, the honesty and integrity with which it was being run and as to the First Claimant’s medical fitness to continue as a director and executive chairman. The Defence was struck out on the Defendant failing to provide an address for service in the jurisdiction.
First, were remedies available, and if so what were they, for the First Claimant in respect of the misuse of private information and for the Second Claimant in breach of confidence? Secondly, what should the remedies be in libel?
The claims for misuse of private information and breach of confidence were made out. The First Claimant would be awarded £30,000 compensation for the misuse of his private information. Although the Second Claimant company made no claim for special damages arising from the breach of confidence, it would be awarded £10,000 compensation for this cause of action. The evidence relied on by the Claimants had established that the allegations complained of in libel (which included a recording made on voicemail) were untrue, and been made by the Defendant knowing that they were untrue. The Defendant’s publications had clearly been motivated by his desire for revenge, which together with other factors gave rise to serious aggravation. Judgment in the sum of £50,000 would be entered in favour of the First Claimant in libel, with judgment for the Second Claimant company in libel of £30,000. Further, the fact that the Defendant is abroad was no answer to the Claimants’ application for a permanent injunction, which in this case would be granted.
A total of £120,000 damages was awarded in this case, featuring a misuse of private information, breach of confidence and libel. The approach to quantum in respect of libel damages was in line with recent awards, which seem to be reflecting a modest degree of inflation. The £30,000 awarded for the misuse of the First Claimant’s private information now comes second only to the £60,000 awarded to Max Mosley in 2008. It is considerably more than the previous four-figure comparator privacy cases such as Campbell v MGN, Archer v Williams and McKennitt v Ash. The court appears to have had in mind in particular the capacity for substantial compensatory damages to act as a deterrent against similar conduct by others, with reference to the Privy Council case of Gleaner Company v Abrahams. The other notable aspect of the damages awards was the court’s preparedness to award the Second Claimant company £10,000 compensation for breach of confidence, in the absence of any actual claimed financial losses.