Misuse of private information in High Court Enforcement

Tue, 02 Jul 2019

Shakir Ali, Shahida Aslam -v- Channel 5 Broadcasting Limited [2019] EWCA Civ 677

In Ali the Appellants appealed against the quantum of damages awarded to them by Arnold J for the misuse of private information by Channel 5 in the broadcast of a documentary “Can’t Pay We’ll Take It Away”.

Channel 5 cross-appealed the finding of liability made against them. 

“Can’t Pay We’ll Take It Away” is a Channel 5 documentary following the work of High Court Enforcement Agents (“HCEA’s”) as they enforce writs of control and writs of possession.

In this case, a Mr Ali and his family had fallen behind in their rent payments to a Mr Ahmed (their Landlord). Mr Ahmed successfully obtained an order for possession in the County Court which he then transferred to the High Court for enforcement purposes pursuant to CPR 83.13 (4).

On this occasion Mr Ali and his family were filmed as the High Court Enforcement Agents proceeded to evict them. The episode was broadcast 36 times and the total viewers numbered 9.42 million in addition to 230,000 viewers on-line.

The Claimant’s claim proceeded on the basis that images of them had been displayed along with personal details of the eviction and, that it showed Mr Ali “at his lowest ebb being evicted without prior notice, in a state of shock and very distressed.”

In the course of the documentary Mr Ali had asked the HCEA why he was being filmed and was told by the HCEA “because we are”. Arnold J found that no attempt was made to gain Mr Ali’s consent to the filming and if any consent had been obtained by him, it was withdrawn before the first broadcast.

Arnold J concluded that the Claimant’s privacy rights were engaged and then proceeded to consider the balance of those rights against the Defendant’s right to freedom of expression under Article 10 of the ECHR.  He found that whilst the programme did contribute to a debate of public interest, that “the inclusion of the Claimant’s private information in the programme went beyond what was justified for that purpose…the focus of the programme was upon the drama of the conflict between Omar Ahmed and the Claimants.”

The Court of Appeal dismissed the cross appeal of Channel 5 on the issue of liability. They found that Arnold J was fully aware of the legal principles and had paid due regard to the crucial principle that where there is a rational view by which the public interest can justify publication, a court must give full weight to editorial knowledge and discretion and be slow to interfere. The judgment contained a “strikingly thorough and comprehensive analysis of the issues arising in the case.”

On the issue of quantum, the Claimants contended that an award of £10,000 failed to reflect the scale and nature of the publication. Arnold J had rejected that aggravated damages were appropriate and therefore had to consider an appropriate measure of damages for distress.

The Court of Appeal found that it was correct (on the facts of this case) for the Judge to assess damages ‘in the round.’ The Court of Appeal considered Gulati -v-MGN [2015] EWHC 1482 where Arden LJ  had said: “if 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 of the relevant factors and it is not enough for this Court to conclude it would have made some different award.”  Accordingly, the appeal by the Claimants against the alleged low quantum of their award was also dismissed by the Court of Appeal.

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