HomeInsightsHigh Court awards Paul Burrell £5,000 in claim for misuse of private information against Max Clifford.

The claimant, Paul Burrell, issued proceedings against the defendant, Max Clifford, for breach of confidence and misuse of private information in respect of a letter Mr Burrell had sent to Mr Clifford in 2002 that Mr Clifford had then passed on to The News of the World newspaper.

The letter included: (i) information concerning personal gifts from the Queen and the Duke of Edinburgh to Mr Burrell and his wife during the years for which Mr Burrell was employed by the Royal Family; (ii) information concerning the Queen’s interest in the birth of Mr Burrell’s first son; (iii) details concerning a serious accident suffered by Mr Burrell while in the USA with the Queen, his subsequent medical treatment, and the assistance given to him in that regard by the Queen; and (iv) information concerning Mr Burrell’s relationship with the Queen.

Mr Burrell sent the letter to Mr Clifford in about April or May 2002.  In November 2002, Mr Clifford’s personal assistant sent the letter, by fax, to Rebekah Wade, the then editor of the News of the World, with a view to interesting the newspaper in publishing a story utilising the information contained in the letter, although no such publication in fact took place.  The letter contained information that was not in the public domain at the time, meaning that it was both private and confidential.

The central issue was whether or not Mr Burrell had authorised Mr Clifford to send the letter to The News of the World.  Mr Clifford said that he had done nothing wrong in sending the letter since Mr Burrell had employed him to broker the sale of Mr Burrell’s story and, he said, in any event Mr Burrell’s claim was time-barred under the Limitation Act 1980, since Mr Burrell did not issue proceedings until October 2014.

However, Mr Burrell said that he had retained Mr Clifford in order to gain some protection from the media, not to broker a sale of any story, and that he had severed the relationship with Mr Clifford and turned to an alternative media management company in November 2002.  Mr Burrell’s case was that Mr Clifford had sent the letter to The News of the World without his knowledge or approval, and that he did not discover that the letter had been sent until 22 June 2011 or 28 June 2012 when the fax was discovered by the Metropolitan Police Service, as part of its investigation into “phone-hacking”.  Mr Burrell therefore relied on the provisions of s 32 of the Limitation Act 1980 as postponing the start of the limitation period until one or other of those dates, each of which was less than six years before the claim form was issued.

On liability, Richard Spearman QC found that Mr Clifford’s communication of the letter to Ms Wade in November 2002 was not made pursuant to a retainer, authority or permission of Mr Burrell.  Mr Spearman QC found Mr Clifford’s case on the issue, “highly implausible and entirely unconvincing”.  Conversely, he considered that Mr Burrell’s case was both “coherent and consistent with the undisputed facts”, namely that he had not at any time engaged or authorised Mr Clifford to market the contents of the letter, nor had he sent it to him to use for that purpose.  Further, he had had no contact with Mr Clifford after about May 2002, and he had subsequently dropped Mr Clifford and turned to an alternative media management company, to broker the sale of his story.

Mr Burrell was therefore entitled to rely on s 32 of the 1980 Act.  Mr Clifford’s breach of duty had been concealed and Mr Burrell had not discovered, and there was no suggestion that he could with reasonable diligence have discovered, that the fax had been sent to The News of the World until either 22 June 2011 or 28 June 2012, and he had brought his claim within six years of those dates.

As for quantum, Mr Burrell relied on Mr Justice Mann’s decision in Gulati v MGN Newspapers [2015] EWHC 1482 (Ch), which was approved by the Court of Appeal, as establishing that in claims for misuse of private information the power of the court to award general damages is not limited to compensation for distress and can be exercised in addition to compensate claimants for the misuse of their private information.  Mann J had concluded in Gulati that compensation could be awarded not only for distress, but also “for the commission of the wrong itself so far as that commission impacts on the values protected by the right”.  In other words, Mr Burrell could be compensated for the intrusion into his privacy.

Mr Spearman QC noted that in the Gulati case, Mann J had awarded Mr Yentob £15,000 in damages.  In this case, he said, the degree of intrusion that Mr Burrell had suffered was “drastically less” than that suffered by Mr Yentob.  It was not “enormous, it did not concern “all aspects of [Mr Burrell’s] personal and business life”, and it did not last for several years.  In a bid to achieve a level of consistency with the Gulati case, Mr Spearman QC set the misuse that Mr Burrell complained about against the starting point of £10,000 for each year of serious levels of “hacking” that Mann J had held to be appropriate in Gulati (and which was later affirmed by the Court of Appeal).  Mr Spearman considered that it was “difficult to see how the appropriate award for the commission of the wrong itself could be more than a fraction of £10,000”.

As for distress, Mr Spearman QC said that Mr Burrell’s case, both objectively and subjectively, was far less serious than that of Mr Yentob in Gulati, to whom Mann J awarded £15,000.  Whilst taking into account the fact that Mr Burrell was “more sensitive to the misuse of his private information than any of the claimants in Gulati”, Mr Spearman QC found it “difficult to see how the appropriate level of compensation for distress in the present case can be more than a fraction of the £15,000 that Mann J awarded Mr YentobIn the end, Mr Spearman QC awarded Mr Burrell £5,000 in damages.  (Paul Burrell v Max Clifford [2016] EWHC 294 (Ch) (19 February 2016) — to read the judgment in full, click here).

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