Neutral Citation Number: [2013] EWHC 589 (QB)
Case No: HQ09X04089
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/03/2013

Before :

THE HONOURABLE MR JUSTICE TUGENDHAT
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Between:

	WXY	Claimant	
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	(1) Henry Gewanter
(2) Positive Profile Ltd
(3) Mark Burby	Defendants	
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Mr Aidan Eardley (instructed by Archerfield Partners LLP) for the Claimant
Patrick Green QC and Kathleen Donnelly (instructed under the direct professional access scheme) for the Third Defendant
Hearing dates: 5 and 6 March 2013
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Judgment

Mr Justice Tugendhat : 

1.	On 6 March 2012 Slade J handed down her reserved judgment (Neutral Citation Number: [2012] EWHC 496 (QB)) (“the trial judgment”) following the trial of this action against the Third Defendant (“Mr Burby”). The trial of all issues in the action against all three Defendants had been due to start on 11 July 2012. It was in fact held, in respect of the claim against Mr Burby alone, on 14-15 and 18-20 July 2011. Slade J’s conclusion, stated at para [133], was as follows:
“In my judgment unless restrained, the Third Defendant is likely to resume publication of or threatening to publish private and confidential information of the Claimant and thereby to continue to harass her. The interim injunctions will continue in place pending a hearing to consider the terms of orders consequential upon this judgment.”
2.	On 6 March 2012 Slade J made an order that “Judgment on liability be entered for the Claimant against the Third Defendant”. She directed a further hearing to decide what other orders and directions should be made in consequence of her judgment handed down on that day.
3.	On 15 May 2012 Sir Charles Gray made an order that, amongst other orders, the trial of the action against the First and Second Defendant commence on 18 June 2012.
4.	On 13 June 2012 Slade J handed down a further judgment (Neutral Citation Number: [2012] EWHC 1601 (QB)) following a hearing held on 20 April and 9-11 May 2012. On the same day she made a further order. That order included the following:
“… judgment on liability having been entered for the Claimant on 6 March 2012
IT IS ORDERED AS FOLLOWS:
Assessment of Damages
1. There shall be an assessment of damages due to the Claimant from the Third Defendant following the conclusion of the trial on liability of the Claimant’s claim against the First and Second Defendants, or settlement of that claim. Directions for such assessment to be given at the handing down of judgment in that trial (or as otherwise ordered by the court) or, if that claim is settled or is otherwise concluded without a trial, on a date to be fixed by the court upon the Claimant’s application, made on notice to all the Defendants…”
5.	The assessment of damages was listed to commence before myself on 5 March 2013 following the issue of an application notice by the Claimant dated 20 July 2012. On 27 February 2013 Mr Burby issued an application notice asking for an order that that the assessment of damages be taken out of the list, and that instead there should be a hearing for directions to be given pursuant to the order of Slade J made on 13 June 2012 para 1.
6.	On 5 March I heard submissions from Mr Green QC and Mr Eardley on Mr Burby’s application. I informed the parties that I refused the application. I said I would give reasons in the judgment on the assessment of damages. Parts of that hearing were held in public, and parts in private, because that was necessary in order that the purpose of the non-disclosure order be not defeated.
7.	This judgment relates to both matters. It is an open judgment.
8.	The order of 13 June 2012 also included final injunctions restraining Mr Burby from (amongst other things) disclosing specified confidential information or allegations, threatening to makes such disclosures, or otherwise harassing the Claimant, subject to some exceptions and conditions which are set out in that order. The order is in 19 paragraphs over 10 pages.
MR BURBY’S APPLICATION FOR AN ADJOURNMENT AND DIRECTIONS
9.	The reason why the trial in July 2011 resulted in judgment only on the issue of liability, when no order for the trial of a preliminary issue had been made before 11 July, is as follows.
10.	The trial against the First and Second Defendant, which had been due to take place at the same time as the trial against Mr Burby, had been adjourned on account of the ill health of the First Defendant. The applications for an adjournment had been heard on the first days listed for the trial, 11-13 July 2011. On 13 July 2011 Slade J handed down her judgment which is available in redacted form (Neutral Citation Number: [2012] EWHC 501 (QB)). The order for the adjournment and other directions are set out in the order of Slade J made on 21 July 2011. Mr Green QC did not appear for Mr Burby on that occasion. Mr Burby had also made an application for an adjournment, but that was dismissed by Slade J. 
11.	In her judgment of 13 July 2011 Slade J said:
“12. [Counsel for the First and Second Defendants] contended that the assessment of damages, if it came to it, would be difficult if the case against all defendants were not heard together. There would be issues of causation to be determined: was distress caused by concern about disclosure of alleged perjury, or by disclosure of the alleged sexual relations, or both? Aggravated damages are claimed. [Counsel] contended that the amount of such damages would have to be fixed according to the culpability of the least guilty party. This would be difficult if two separate trials were conducted….
15. As to the points made by [Counsel for the First and Second Defendants], on the difficulties of granting relief in two separate trials, Mr Eardley said that the primary relief claimed was injunctive relief. If an injunction were granted against the third defendant after the first trial which proved to be too wide, having concluded the second trial, the injunction could be varied. The issue of damages could be adjourned until the determination of the second trial.”
12.	The order of 13 June 2012 included the following:
“18. The Third Defendant shall have liberty to apply, between (a) the date of judgment in the claim against the First and Second Defendants and 28 days thereafter, and, if such judgment is appealed, (b) the date of the determination of any appeal against that judgment and 28 days thereafter, for a variation of the terms of this order, such liberty limited to any application founded upon a finding of fact made by the trial judge in that claim or any determination by the Court of Appeal that a finding of fact made by the trial judge in that claim was wrong. …”
13.	On 15 June 2012 the claim against the First and Second Defendants was settled, and the action stayed on terms set out in a Tomlin Order. The First and Second Defendants gave undertakings to the court in terms similar to the non-disclosure injunctions made against Mr Burby. They were ordered to pay very substantial sums in respect of the costs of the proceedings, but there was no provision that they pay damages.
14.	In support of the Claimant’s application of 20 July 2012 that there be an assessment of damages, her solicitor had made a witness statement. He stated that the Claimant would rely on the evidence relied on at the trial and Slade J’s judgment, and no further directions were required.
15.	Mr Burby has disputed that. He submits that an order for directions is required by the order of 13 June 2012. The form of directions that he seeks includes provision for further pleadings (a schedule and counter-schedule of loss) and exchange of witness statements.
16.	However, since the Claimant has made clear, both in correspondence and through Mr Eardley, that she is not claiming any special damage, and does not propose to give any further evidence, Mr Eardley submits that there are no further directions to be given, other than that the assessment proceed. The claim is for general damages for anxiety, distress and injury to feelings. 
17.	Mr Eardley also made clear that the Claimant proposed to rely on the findings made by Slade J, and did not rely on the evidence or documents adduced at trial for the purpose of seeking any further finding of fact. He recalled that, since there had been no prior order for the trial to be limited to liability, the witness statement prepared by the claimant, and verified as her evidence in chief, included all the evidence that she wished to give on all the issues in the action.
18.	Mr Green submitted that, without further pleadings or evidence, Mr Burby did not know the case he had to meet. No figure had been advanced for general damages until the skeleton argument prepared for this hearing. Mr Green accepted that there are some findings of distress in the trial judgment, but he submits that without further findings of fact the court cannot assess the damages. Damages must depend on the resolution of other issues, including causation and apportionment, and the duration and intensity of any injury to a Claimant’s feelings. 
19.	Further, Mr Burby wished to challenge some of the evidence that the Claimant and her witnesses had adduced at the trial which related to damages.
20.	However, Mr Burby did not participate in the trial. His subsequent application to set aside the judgment was dismissed, as was his application for permission to appeal on that point. In my judgment, unless the Claimant is permitted to adduce further evidence, which she did not ask to do, Mr Burby is precluded from seeking to challenge evidence given at the trial, which he chose not to participate in, for reasons which Slade J has found to be reasons which did not support his application to set aside her judgment. See the trial judgment paras [14]-[16].
21.	I refused Mr Burby’s application for the matter to be taken out of the list and for further directions because, in my judgment, that would serve no purpose. The Claimant has not applied for, and has no, permission to adduce further evidence. Figures for general damages do not have to pleaded. The practice is to canvass figures at trial, if the parties make submissions on figures. Figures for general damages are assessed by the judge, whether with or without submissions, in the light of such guidelines as are to be found in relevant authorities. If the Claimant finds herself in difficulties for want of sufficient findings of fact, then that is a consequence of her own choice, and will advantage Mr Burby, not prejudice him.
22.	My decision not to adjourn was also based on the overriding objective. This case has never been primarily about damages. The primary relief sought, and now obtained, was an injunction. This litigation has been very prolonged, hard fought, and correspondingly costly. The Claimant regards the injunction as justifying the effort and resources expended because of the seriousness of the potential consequences to her if the Defendants had not been restrained by the injunctions and undertakings that she has won. 
23.	There is substantial agreement between counsel as to the guidelines and general law on damages to be applied. The dispute is as to the proper award in the light of those guidelines and the general law on damages. The maximum figure for which Mr Eardley contends is in the range of £41,000 to £45,000.
24.	In my judgment it would not be just or proportionate to the only matter now in issue if I were to order an adjournment, give directions and hold another hearing.
ASSESSMENT OF DAMAGES
Applicable law
25.	In Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871; [2003] ICR 318 the court of Appeal gave guidance on damages for harassment. The parties agree that it is relevant to the present case, although the figures would require adjustment for inflation, and the figures suggested by Mr Eardley are in square brackets. It is as follows:
“65. Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. 
i) The top band should normally be between £15,000 and £25,000 [£19,950-£33,250]. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. 
ii) The middle band of between £5,000 and £15,000 [£6,650-£19,950] should be used for serious cases, which do not merit an award in the highest band.
iii) Awards of between £500 and £5,000 [£665-£6,650] are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. 
67 The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled.”
26.	However there are other passages in that judgment which provide helpful guidance. At para [47] the Court expressed concern that awards in discrimination cases should be:
“in line with general levels of compensation recovered in other cases of non-pecuniary loss, such as general damages for personal injuries, malicious prosecution and defamation.”
27.	The Court went on to say at paras [50]-[51]:
“…It is self evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise…. Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury”.
28.	At para [59] the Court noted the need to be alert to the danger of allowing double recovery. 
29.	Mr Eardley also cited a number of cases on damages for misuse of private information. These included Mosley v News Group Newspapers Ltd [2008] EMLR 20; [2008] EWHC 1777 (QB), Cooper & Imainatik Plc v. Turrell [2011] EWHC 3269 (QB), Spelman v Express Newspapers [2012] EWHC 355 (QB) and AAA v Associated Newspapers Ltd [2011] EWHC 3269 (QB).
Findings of fact
30.	Mr Eardley directed me to the parts of the trial judgment, and reminded me of the documents containing the confidential information which is specified in the Schedules to the final non-disclosure order made in this action. I say ‘reminded’ because applications in this matter have been listed before me on a number of occasions and I have had, in the past, to give close attention to the evidence in this action, prior to making some of the orders that I have made in the past. He has taken me to these documents, and other parts of the evidence, because they are not set out in the trial judgment, as they would have been if the judgment had not related to confidential information and harassment. In order to understand the judgment it is therefore necessary to read it in the light of this information and evidence.
31.	The passages in the trial judgment that are relevant to the assessment of damages are the following:
“1 The Claimant, who for the purposes of this action is described as WXY, seeks final injunctive relief restraining the Defendants from publishing or disclosing private or confidential information and from harassing the Claimant. She also claims damages for breach of confidence, misuse of private information and harassment. The Claimant is a wealthy woman with close connections with a foreign Head of State and his family. The First Defendant, Mr Gewanter, is a public relations consultant, the Second Defendant, Positive Profile Limited, his company and the Third Defendant, Mr Burby, their client. 
2. In summary the Claimant alleges that the Defendants have published or threatened to publish, including on a website, 'A', operated by the Third Defendant, private and confidential information. It is said that this was done to harass the Claimant in order to put pressure on her to obtain payment of or to pay a Judgment Debt owed to the Third Defendant by members of the Head of State's family ('the Judgment Debt'). The principal categories of information in respect of which permanent orders are sought are: first an allegation that the Claimant had a sexual relationship with M ('the sexual allegation') and second that she lied in denying it in legal proceedings ('the perjury allegation'). Third, it was alleged that during 'pillow talk' with M the Claimant had told him that the Head of State had provided support for terrorism ('the terrorism allegation'). Fourth, information and allegations concerning attempts made by the Claimant to help the Third Defendant obtain payment of the Judgment Debt and of discussions about consideration of financial assistance to the Third Defendant by the Claimant. Fifth, information calculated to identify the Claimant as the Claimant in domestic and foreign proceedings against X….
 16. The Claimant gave evidence as did the following witnesses: the Claimant's foreign attorney, P, her London solicitors Matthew Dowd and Mark Bateman and D, a public relations adviser to the Head of State…”
32.	Mr Burby resides in Jersey. These proceedings were served upon him out of the jurisdiction with the leave of the court. The claim for damages is restricted accordingly to Mr Burby’s conduct in so far as it resulted in publications or other acts within this jurisdiction.
33.	The background facts and the information that Slade J was able to make public about the information the subject of her non-disclosure order, and the nature of the harassment, are set out in paras [18] to [49] of the trial judgment.
34.	The claim in respect of misuse of private information or breach of confidence relates to a period commencing about April 2009 when Mr Burby first published within this jurisdiction through a website information material relating to the Claimant. Slade J found as a fact that the first posting was on 29 April 2009: para [36]. She found that Mr Burby knew that the information was private and confidential and that, although the claimant was not named, he knew that she would understand that she was the person referred to, and that the Head of State and his advisers would identify her if it was brought to their attention. There was a posting of the sexual allegation on 11 June 2009, and of the perjury allegation on 4 and 8 July 2009. On 11 August 2009 Mr Gewanter had spoken to an advisor to the Head of State about the terrorist and perjury allegations.
35.	On 26 August 2009 solicitors for the Claimant sent the letter before action. At the end of August Mr Burby hibernated the website. In early September Mr Burby spoke to journalists as a result of which there were published complaints attributed to him that he had been badly treated by the Head of State’s family and seeking to make a link with the murder of X (who had also been in dispute with the Head of State) on 3 September 2009.
36.	On 9 September 2009 Maddison J granted an interim injunction which was served on Mr Burby on 14 September.
37.	However, before that period commencing in April 2009, the Claimant had also been in litigation with M against whom she had obtained a non-dislcosure injunction in respect of the sexual allegation. She started that claim in 2004.
38.	At para [70] of the trial judgment Slade J recorded that the Claimant was not claiming for harassment on the basis of the way the proceedings had been conducted by Mr Burby.
39.	At paras [77] and [78] Slade J found that Mr Burby knew that the sexual and the terrorist allegations were private. At para [88] she found that the information that the Claimant had been providing assistance to Mr Burby was confidential. At paras [89] and [92] she found that Mr Burby knew that the information about the Claimant’s attitude to religion and wealth was private, and that the fact that she was the anonymised claimant in foreign proceedings was also confidential.
40.	At para [102] Slade J found that by making the postings on the website about the Claimant, Mr Burby intended to put pressure on her to secure financial advantage for himself.
41.	At para [103] Slade J found that Mr Burby was responsible for the postings and proposed postings on the website whether or not they were made with the assistance of the other Defendants. At para [105] she found that the website was accessed in this country.
42.	In considering the claim in harassment, Slade J found as follows:
“112. The Claimant gave evidence that she was a private person and that she was very distressed to hear that allegations about her private life had been posted on the A website. She felt that Mr Burby tarnished her name and at the same time wanted her to give him money. She was also upset by the publication of the allegations about her because she did not want the Head of State to think she had a conversation with M about terrorism and other matters….
118.  The Claimant gave evidence, which I accepted, that she was distressed by the material publicised by Mr Burby which came to her notice. I have found that Mr Burby made such postings on the A website to apply pressure to the Claimant for his financial advantage. On the evidence before me, Mr Burby must have known that his actions amounted to harassment of the Claimant. 
119  In my judgment in posting and threatening to post the Claimant's private and confidential information on the A website Mr Burby was pursuing a course of conduct which was unreasonable, oppressive to her and unacceptable. The interviews given by Mr Burby and reported in the press were likely to add to her distress. Mr Burby's conduct amounted to harassment and it was unreasonable. ...”
Mr Eardley’s submissions
43.	Mr Eardley submitted that the information which was published, and which Mr Burby threatened to publish was highly sensitive. The postings were online for about 3 ½ months, Mr Burby knew that the information was private and confidential, and that its publication would distress the Claimant. That was the basis on which he used it put pressure on the Claimant to pay him money which she had no obligation to pay to him. 
44.	While Slade J specifically found that the website was accessed in this country, she made no findings as to the extent to which it was accessed. 
45.	Mr Eardley submits that these findings suffice to put the case in the highest of the three categories in Vento, and should attract an award of £23,000 to £25,000 in damages for harassment.
46.	Mr Eardley submits that there should also be an award of damages for misuse of private information to compensate the Claimant for the distress caused by the actual disclosure of the private and confidential information, although he accepts that there must not be double counting. He submits that a figure of £18,000 to £20,000 would reflect the need for vindication of the Claimant’s rights in privacy and confidentiality.
47.	Thus he arrives at the total of £41,000 to £45,000.
Mr Green’s submissions
48.	Mr Green submits that the most basic level of detailed required to make a reasoned assessment is not to be found in the judgment, and that the maximum award of damages should be about £1,000.  
49.	Mr Green stresses that there is no finding as to the extent of publication, and he pointed to features of the evidence from Google Analytics which he submitted explained why it would have been difficult for Slade J to make a finding that a substantial number of people (other than the Claimant’s own lawyers) had accessed the website.
50.	He asked me to attach significance to the fact that the Claimant had waited until the end of August to send a letter before action, when the evidence showed that she had been aware of the website long before that, and had in fact asked that a particular item of information be removed. Mr Burby had complied with that request.
51.	He submitted that it was impossible to distinguish distress that the Claimant suffered as a result of publications in this jurisdiction as distinct from distress suffered in other jurisdictions. Similarly, it was impossible to distinguish the damage suffered from the two claims: misuse of private information and harassment. So there should be just one award. In any event, there was no need for a vindicatory award of damages, because the Claimant’s rights had been vindicated by the grant of an injunction.
Discussion
52.	It is clear from the trial judgment that the distress which Slade J found that the Claimant had suffered was the result of both his actual postings and his threatening to post further private and confidential information on the website. This has two consequences. First, the claim for harassment is not separate from the claim for misuse of private information. The harassment consisted in the actual and the threatened publications. 
53.	It follows that I do not accept Mr Eardley’s submission that damages for harassment and for misuse of private information should be assessed separately and added together to reach a total award.
54.	The second consequence of Slade J’s findings is that, in so far as the distress resulted from the threats, then it is not related to the number of persons who read the website. That Mr Burby intended those threats to put pressure on the Claimant matters as much as the distress resulting from her learning that some people had in fact read the postings. It may be true that some, and perhaps most or even all, of those who read the website in England consisted of her lawyers and others close to her, but that does not mean that it was not distressing to her. The situation is different from a defamation action, where the main focus of the damage is to a person’s reputation, and that is not damaged if the only publishees are people who know and believe the truth.
55.	It follows that the Court is not at a material disadvantage by reason of the fact that the Claimant might have suffered distress from publications abroad or as a result of other matters, such as her earlier lawsuits in which she had obtained injunctions restraining publication of the sexual allegation.
56.	I attach no significance to the fact that the Claimant did not send a letter before action before the end of August. There are a number of reasons why she might have chosen not to pursue the matter sooner. Mr Green’s interpretation is just one, but it is only one possible explanation, and Mr Burby’s decision not to attend the trial means that the Claimant was not given the opportunity of commenting on this suggestion, which would have had to be put to her in cross-examination.
57.	I accept Mr Green’s submission that the fact that the Claimant achieved an injunction to restrain further publication must be taken into consideration in deciding what, if any, further vindication of her rights the court needs to give. Compare Citation Plc v Ellis Whittam Ltd [2013] EWCA Civ 155 (08 March 2013), in which the Court of Appeal agreed that, as stated in para [49] of the judgment at first instance, “The acceptance by the Defendant that it must not repeat the words complained of is likely to be as valuable a form of vindication that can in practice be achieved” (in that case there had been very little publication and no damage).
58.	In my judgment the fact that Mr Burby was deliberately putting pressure on the Claimant by making and threatening to publish the information in question, and doing so for financial gain, makes this a serious case. So too does the sensitive and highly personal nature of the information, and the fact that its disclosure had the potential to cause the most serious interference with her family life.
59.	In my judgment the appropriate award to reflect the seriousness of the case is a total of £24,950, of which £5,000 is aggravated damages.
CONCLUSION
60.	For the reasons given above, damages are assessed in the sum of £24,950.