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England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Burrell v Clifford  EWHC 294 (Ch) (19 February 2016)
Cite as:  EWHC 294 (Ch)
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Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
(sitting as a Deputy Judge of the Chancery Division)
| PAUL BURRELL
|- and -
Steven Barrett (instructed by Pitmans LLP) for the Defendant
Hearing dates: 25 and 26 January 2016
Crown Copyright ©
RICHARD SPEARMAN Q.C.:
Outline of the issues
(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.
(iv) Information concerning Mr Burrell's relationship with the Queen.
"It is clear, however, that over the period of offending, these young women were targeted by the appellant who actively misled them and exploited their desire to succeed in their careers for his own purposes. The appellant was a dominant personality and in a powerful position within the world of entertainment and media. This enabled him to do what he did and to convince the victims that there was no point in complaining because no one would listen to them. He was thus able to lead a double life, progressing in his career, whilst his victims, affected by what he had done to them, felt powerless to complain."
Mr Burrell's evidence
1. Marla and I have given great thought to the gifts which we were given by The Queen and Duke of Edinburgh during our 12 years service, as personal servants.
2. As you know, we were the first couple to be allowed to stay in service after we were married. Previously the woman had to leave service. The Queen changed that "archaic" rule for us!
3. She took great interest in our marriage preparations and she and The Duke gave us special wedding presents - A pair of coalpoint handpainted candlesticks (china) each with his cypher and one with hers. Also a carriage clock to the sides of which were gold-enamelled "EIIR" and "P" given to us at a special audience.
4. Our first son, Alex, took two days to arrive. The Queen insisted that her gynaecologist be kept in touch and all proceedings were re-layed through her. Subsequently we took Alex (2 days old) to see her and again privately she "welcomed him into the world"
[letter page 2] missing
[letter page 3:]
5. I know that you wanted me to concentrate on valuable gifts, but I feel that "unprecedented gestures" were far more valuable inside royal circles. After all, the Queen did not go out of her way for anyone!!
6. Whilst with H.M. visiting her brood-mares in Kentucky, I had a serious accident and fell down the staircase of the home of our hosts 'Will Farrish' at Lanes End in Lexington. (He is now the American Ambassador in London.)
7. The Royal Party were at dinner - and heard this almighty noise as I fell down two flights of stairs.
8. The Queen found me in a crumpled heap. The ambulance was summoned
[letter page 4:]
9. and with guests staring, I was whisked off to hospital. Lord Porchester, later to become Earl Carnaven was with us (he was her racing manager!).
10. After great consultation with the neuro-surgeon - they discovered I was paralised below the waist and may never walk again.
11. Quick thinking, and an emergency operation within the hour, released the cyatic nerve - and in time I learned to walk again.
12. I had two choices, at the moment of the accident have the operation or come home and have it.
13. The Queen said that she could not take the responsibility and commanded me to have the op in America.
14. She paid the hospital bill - running into thousands of dollars
[letter page 5:]
15. and sent her new aeroplane the BAE: 146 - which even she hadn't flown (she used the Andover's)
16. It was re-fitted as a hospital unit - and as a training exercise (BAE aeroplanes have to clock up so many miles before royals can fly aboard) It came for me and brought me home in style.
17. She was, of course, caring, considerate and kind to us all.
18. In return, we gave her loyal and devoted service.
19. So perhaps its not the nature of the expensive gifts which we should concentrate on, but the kindness and concern shown to us
20. After all it was not only the Princess chose a coal miners son as her aide and confidante but
[letter page 6:]
21. The Queen of England too ...
22. Surely both could not be bad judges of character .....
Hope that this is of some use
The issue about dates
Mr Warwick's evidence
Mr Clifford's evidence
Paul's letter to Max.
Outlines gifts from the Queen as follows:
- Pair of handpainted candlesticks
- Carriage clock
- Hand knitted clothes
- Romper suits
- Bone china dinner service
- Set of Stuart Crystal glasses
- Suits for Royal tours
- Hospital bill after falling downstairs in USA
With love Anne Marie".
Ms Heather's evidence
Discussion on liability
"After mature reflection, Mr Burrell has decided that he does not need assistance from Mr Clifford. I have sent no documents whatsoever to Mr Clifford. Mr Burrell has not signed or sought to sign any contracts for books, films or any other media since his arrest. He finds the constant pressure from the Press and the media intolerable. Mr Burrell instructed Mr Clifford in the belief that he would protect him from it".
The arguments concerning quantum
"[Counsel] for the respondents, submits that the courts have awarded general damages to children even though the child was not aware of the invasion of privacy and therefore suffered no distress: see AAA v Associated Newspapers Ltd  EWHC 2103  EMLR 2 (award of £15,000 for the publication on three occasions of an unpixellated photograph of a child thought to be the illegitimate daughter of a politician, affirmed  EWCA Civ 554 but the damages were not in issue on appeal), and Weller v Associated Newspapers Ltd  EMLR 24 (awards of between £2,500 and £5,000 to the children of a celebrity for publication of unpixellated photographs showing their faces). [Counsel] relies also on Halford v United Kingdom (1997) 24 EHRR 523. In this case, the Strasbourg Court awarded the applicant £10,000 as just satisfaction for the interception of her telephone calls in violation of Article 8 even though it was not satisfied that she had shown that the stress she had suffered was due to this interception. Neither this nor the previous two cases bind this court. In Halford the award by the Strasbourg Court was not an award of damages under English law."
"Although, as was made clear by Paul and Hannah Weller in their evidence, this case was more about stopping the future publication of photographs of the children, it is still necessary to attempt to ascertain a fair sum to award by way of compensation for the misuse of the private information. In my judgment a fair award of compensation is an award of damages of £5,000 for Dylan, £2,500 for John Paul, and £2,500 for Bowie. There is nothing to suggest that an award of aggravated damages would be appropriate in this case."
(1) There is a "fundamental principled reason" why the process for assessing damages for non-pecuniary loss in defamation cases must not be carried out in disregard or ignorance of damages awarded in personal injury cases and that there should be some reasonable relationship between awards in both cases, even though the factors to be taken into account are materially different, and no exact correlation can be achieved, namely that "if there is no such consideration or relationship, the reasonable observer may doubt the logic of the law or form the view that the law places a higher value on a person's right to privacy than it does on (say) a person's lifelong disability as a result of another's negligence, and this would bring the law into disrepute and diminish public confidence in the impartiality of the legal system" (see , and John v MGN Ltd  QB 586).
(2) There is a further reason, namely that there might also be pressure from personal injury claimants for an increase in awards for personal injury, which would require careful consideration because such increases could have wide-ranging effects on a large number of members of society (see , and, further, the observations of Lord Hoffmann giving the judgment of the Privy Council in The Gleaner Co Ltd v Abrahams  1 AC 628, at  to , to the effect that differences between an award for libel and an award for personal injury include (a) the difference in economic effect, because personal injury damages, unlike libel damages, are generally met by insurers who pass on the cost to their clients who pass on the cost to society in general, and (b) that one purpose of libel damages is to control irresponsible behaviour by the press).
(3) The logic of the fundamental point applies also to claims for misuse of private information, but nevertheless "Taking account of personal injury compensation does not mean that the outcome in this field has to be exactly the same" ().
(4) In light of the consideration that Mann J had clearly had regard to the personal injury scale, the real question in Gulati Appeal was whether Mann J had achieved the reasonable relationship between that scale and his awards, and this in turn came down to whether he was right to break down the awards that he made into the three components, namely (a) damages for each published article, (b) damages for hacking or related activities which did not result in the publication of an article, and (c) damages for distress resulting from hacking. This was because the appellant did not challenge the individual awards within those components. ()
(5) Although the claimants did not dispute the analogy with multiple injuries in personal injury cases, it is clear from judicial guidance in that area (a) that "there is no universal rule that awards of general damages for multiple injuries should be the sum of the amounts for each of the injuries involved; the right sum may be a greater or lesser amount. It all depends on the facts" and (b) that there is no requirement "that the damages must be awarded as a global sum rather than be awarded as separate sums for each injury". (-)
(6) Not only had Mann J adopted an approach which he was entitled to take (see -) but also testing his approach by reference to his three highest awards and more generally by considering all the awards which he made "They were thorough and fairly done in every case" (-74]).
"(i) The subject matter of the disclosure is not a rigid guide to the amount of compensation. However certain types of information are likely to be more significant than others. Thus medical information is more likely to be high in the ranks of information which is expected to be private, so its interception and disclosure is likely to attract a higher, rather than a lower, figure. However not all medical-related disclosures will be treated equally seriously. It depends on the nature of the information.
(ii) Information about significant private financial matters is also likely to attract a higher degree of privacy, and therefore compensation, than others.
(iii) By contrast, information about a social meeting which is used to get a photograph is, of itself, likely to attract a lower degree of privacy (in terms of compensation), though it is capable being magnified by other factors, such as contributing to a sense of persecution.
(iv) Information about matters internal to a relationship will be treated as private. The amount of compensation payable will depend on the nature of the information listened to and disclosed, in part on the amount of distress and upset caused and in part on the effect on the relationship. Information which is disruptive of the relationship, or which is likely to affect adversely the attempts of the couple to repair it if that is what they are trying to do, is likely to be treated as a serious infringement deserving substantial compensation.
(v) Further categorisation is not realistically possible.
(vi) The appropriate compensation will depend on the nature of the information, its significance as private information, and the effect on the victim of its disclosure. A short-lived effect based on embarrassment will attract less compensation than a life-changing intrusion
(vii) The effect of repeated intrusions by publication can be cumulative. What starts out as irritation or embarrassment on the first disclosure can become a justified persistent feeling of distress or upset on repeated disclosures. [Conversely, it is possible that the cumulative effect will mean that additional distress is less rather than increased as a result of repeat disclosures.]
(viii) The extent of the damage may be claimant-specific. A thinner-skinned individual may be caused more upset, and therefore receive more compensation, than a thicker-skinned individual who is the subject of the same intrusion. [Counsel for the Defendant] accepted that, in relation to distress, the "egg-shell skull" principle applied, though I should add that I do not think that any of the claimants in the 8 cases before me were particularly sensitive."
"The highest was £85,000 for Alan Yentob. Mr Yentob was a senior BBC executive. He made extensive use of his voicemail. Messages left for him would contain an enormous amount of entertainment-related material of interest to journalists, as well as personal information. The information could be used to develop stories about people other than Mr Yentob, about whom no stories were written based on material obtained from hacking. The judge found that his phone had been hacked at least twice a day for a period of about 7 years (Judgment, para. 241). The judge found that he experienced "deep hurt and anger" when he discovered the extent to which his phone had been hacked. The judge awarded a small amount of aggravated damages because of the way in which he had been cross-examined. The judge made a total award of £85,000. The judge did not break this figure down. It would appear to represent 7 years at £10,000 per annum, plus an amount for distress, and small amounts for the aggravated damages and the activities of the private investigators. Given the scale of the hacking, there is clearly no basis for saying that this award was perverse or one he was not properly entitled to make."
"The duration and extent of hacking
238. At one stage the information led Mirror journalists to wonder whether Mr Yentob was having an affair. The belief that he was was passed from one journalist to another. In fact they were wrong - he was not - and nothing was published about it. That point, however, demonstrates how the information from hacking was likely to spread round journalists, to the further detriment of privacy in the item in question.
239. In short, the material available to the Mirror journalists who hacked Mr Yentob was wide-ranging, sometimes highly confidential, usually private, related to a lot of matters of great significance to Mr Yentob and others and was available to use to pursue, develop or stand up stories about people other than Mr Yentob
243. All this means that Mr Yentob's phone was hacked at least twice a day, and often several times a day, for a substantial part of a period of about 7 years, though perhaps for not the whole of that 7 years. I expect the intensity rose as more and more people got used to the technique and its usefulness. All aspects of his personal and business life were exposed because of the nature of his use of voicemail. This is an enormous intrusion. In those terms this is a serious case. To this one adds the possibility of "farming" his other contacts, the extent of which it is impossible to determine.The use of private investigators
245. This layer will add little in terms of compensation to the hacking layer.The impact on Mr Yentob
246. Mr Yentob gave compelling evidence of the effect of the hacking on him. He did not know at the time that he had been hacked, and only found out when the Metropolitan Police told him that he had apparently been a victim, relatively recently in the course of their inquiries. His "distress" dates from then. The extent of it will only have become apparent as the case unfolded In his evidence in chief he said that the scale had only become apparent to him in the preceding couple of weeks.
247. He described himself as being "appalled"; he felt he and his family, friends and associates had been "violated on a truly massive scale". It was as though someone had been able to search through his personal belongings; he was left feeling "invaded and sickened". He lost the sense of security in relation to what he had considered a secure method of communication. He denied the suggestion in cross-examination that this was now historic. He was particularly concerned that even now he does not know what information was obtained. It has affected his children who have been upset about what may have been revealed. While he did not claim it had ruined his life he did say that it has unsettled his family, which must have had an effect on their relationships.
248. He was plainly also angry. [Counsel] submitted that anger was not an appropriate subject of compensation. I disagree, in the context of this sort of claim. To a degree it is part of the hurt and upset, and feelings of anger are, for these purposes, akin to hurt. It is probably difficult to separate the two, psychologically speaking.
249. Mr Yentob would have been partly appeased by a prompt apology, and his letter before action had asked for one. However, no apology came until less than a month before the trial. He regarded the apology as feeble, and considered there was more that could have been done to investigate the matter, though it seems to me that in the circumstances some of that may have been a bit unrealistic in the light of the evidence that I have heard about how steps were taken to cover tracks. He remembered hearing the denials made to the Leveson inquiry (see above) and felt "very let down" by those and by the statements which were apparently intended to be denials of wrongdoing.
250. Mr Yentob's evidence about this was given in a straightforward fashion, and I do not consider that he has exaggerated or embellished for the purposes of this trial. While he has not sustained the anxieties over a long period from the publishing of articles, he has nonetheless experienced real deep hurt and anger at having gradually discovered the apparent extent of the invasion of his privacy.
251. [Counsel] listed various matters as going to aggravated damages. Some of them are repetitions of some of the significant underlying facts, and not appropriate to aggravate the damages. Two require mention the manner and content of his cross-examination, which led to him feeling indignant is worthy of a small amount of aggravated damages, but I shall not specify it as a separate sum.Alan Yentob - Findings on damages
252. In the case of Mr Yentob I shall specify one overall sum, which takes into account the extent and nature of the invasion of his privacy from the phone hacking, the activities of the private investigators and the effect on Mr Yentob. I shall allow a very modest amount of aggravated damages in respect of his cross-examination, and consider the effect on him of the retracted denials by Mirror officials as part of an assessment of his degree of hurt rather than aggravated damages. The overall figure which I have come to for Mr Yentob is £85,000."
"This is a case in which the damages are likely to reflect two elements (assuming that Mr Burrell establishes the wrong alleged). The first is compensation for the wrong itself, and the second is compensation for distress and upset (and allied emotions). It is not clear that there is any, or any significant, aggravating factor which is likely to operate. As to the first, if the wrong is established then it was a serious wrong, because information which was clearly transmitted for one purpose was used for another. That is not something which is likely to sound in a small (in the sense of close to nominal) damages. Mr Bennett said his client would say that he experienced considerable upset and alarm when he discovered that someone who was supposed to be a trusted adviser had in fact betrayed him. One can imagine that, if the circumstances were such as Mr Burrell says they were, that would be the case, and the alarm and distress would be significant. However, when compared with the situation where alarm and distress arises from widespread publication of the information, that amount of alarm and distress is likely to be relatively small. I also accept that it is likely to be much reduced from what it otherwise might have been had Mr Burrell not put the private information in the public domain himself, for whatever reason. The fact of the matter is that, even on Mr Burrell's case, the distress will not have arisen from the revealing of private information which would never otherwise have been revealed. It would come from the premature revealing of private information in circumstances in which, within a year or 18 months, he had revealed it himself. He would be entitled to claim for distress and upset arising out of discovering a betrayal, but that seems to me to be arguably as far as it would go."
"(i) The overriding principle is that the damages are compensatory
(ii) The primary basis for the assessment is to consider what sum would have been arrived at in negotiations between the parties, had each been making reasonable use of their respective bargaining positions, bearing in mind the information available to the parties and the commercial context at the time that notional negotiation should have taken place
(iii) The fact that one or both parties would not in practice have agreed to make a deal is irrelevant
(iv) As a general rule, the assessment is to be made as at the date of the breach
(v) Where there has been nothing like an actual negotiation between the parties, it is reasonable for the court to look at the eventual outcome and to consider whether or not that is a useful guide to what the parties would have thought at the time of their hypothetical bargain
(vi) The court can take into account other relevant factors, and in particular delay on the part of the claimant in asserting its rights "
Discussion concerning quantum