Judgment Approved by the court for handing down.
Ali & Aslam v Channel 5 Broadcasting Ltd
identified by the Claimants. The range of awards in Gulati in respect of individual
publications, even those involving front page articles in the national press and on
newspapers’ websites, ranged from about £750 to £40,000. These awards, by
comparison, cannot be categorised as “inordinately low”.
116.
Moreover, there is a real distinction between the awards for hacking and for any
breach of privacy of this kind. Those responsible for hacking knew all along that
what they were perpetrating was unlawful. In the instant case, the Defendant had
taken careful steps to obtain expert legal advice on the propriety and legality of what
they were doing, and there is no question of bad faith. It is submitted that should
operate to reduce the award for distress, since the impact of deliberate illegality
should be regarded as greater and more distressing.
117.
Although, of course, the scale of publication is relevant, the Defendant submits that
“there can be no linear or arithmetical relationship between the number of viewers
and quantum”. Such a principle is recognised in the analogous area of defamation:
see Cairns v Modi; KC v MGN Ltd [2013] 1 WLR 1015 at paragraph 48, and see
Collins on Defamation, paragraph 21.19.
118.
We would reject the appeal on the quantum of damage based on Ground 1. It seems
to us the judge was best placed to make the relevant assessment of impact. He had to
allow for the distress already caused by the Facebook postings, and in particular
caused and expressed by Mrs Aslam in her letter of May 2015. It was appropriate to
make an award of damages in the round. Although clearly the subjective distress
suffered by Mrs Aslam was greater than her husband, the impact of the content of the
programme was much more on her husband than on Mrs Aslam: the content of the
programme bore on him more directly. We accept that other judges might well have
reached a higher figure in an overall assessment of damages. But in this area, too, it is
important that an appeal court should be slow to interfere with an assessment of
damage in such a case as this, where the measure of damage is necessarily general and
cannot be calculated mathematically. The Defendant relies on the principle recently
restated by the Privy Council in relation to an award of general damages in a personal
injury claim in Scott v The Attorney General and Another [2017] 3 LRC 704. The
Judicial Committee of the Privy Council there emphasised that an appeal court should
be reticent before interfering with such an award.
119.
A similar statement of the proper approach appears in the judgment in the Court of
Appeal in Gulati v MGN, where Arden LJ said:
“60. I turn to my conclusions. There is a threshold question,
which I can take shortly, as to the conditions for interference by
this Court in any award for general damages. If the judge
makes a material error of law, this Court must intervene. If,
however, the challenge is to the size of the award, and the judge
has as here heard the evidence of witnesses in assessing the
effect on the respondents of the misuse of their private
information, this Court should not intervene unless the award is
so high as to be perverse. The judge will have performed, and
been better placed to perform, an assessment of all the relevant
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