By Kevin Donoghue, solicitor and specialist in civil actions against the police
On Wednesday 18 July, Mr Justice Mann, sitting in the High Court in London, awarded Sir Cliff Richard £210,000 compensation from the BBC in respect of his successful damages claim. (Official judgment here. )This is in addition to a previously agreed settlement of £400,000 with South Yorkshire Police, whom Sir Cliff also sued. There will be more compensation paid to once the full extent of “special damages”, or quantifiable losses, are known. South Yorkshire Police and the BBC will also pay legal costs, estimated in the millions. The BBC says it will appeal the decision.
Compensation awarded in this case is substantially more than the usual awards for civil actions against the police and breaches of the Human Rights Act. Why?
What Happened?
In July 2014 a BBC journalist learned that South Yorkshire Police was investigating Sir Cliff for alleged sexual offences involving a minor. The police obtained a warrant to search his home in Sunningdale, Berkshire, which was broadcast live on BBC tv. (Sir Cliff was in Portugal at the time.)
The police investigated the allegations against the singer, who was 73 at the time of the raid and still working as an entertainer. Eventually, in June 2016, Sir Cliff was told that he would not face charges.
He sued both the BBC and South Yorkshire Police for breach of privacy and under the Data Protection Act 1998.
In May 2017 South Yorkshire Police settled Sir Cliff’s civil claim for £400,000 plus costs, apologised, and gave a statement in open court accepting liability.
The BBC fought the claim, resulting in a trial on both liability (responsibility) and quantum (amount of damages).
Liability Issues
Sir Cliff (the Claimant) claimed a breach of his fundamental right to privacy and breach of the Data Protection Act. The BBC (the Defendant) fought the claim arguing that it had fundamental rights to freedom of expression and freedom of the press.
Mr Justice Mann put aside the Data Protection Act breach saying it “adds nothing to the privacy claim”.
Instead he considered Sir Cliff’s rights under Article 8 of the European Convention on Human Rights (ECHR), which in English law is found in the Human Rights Act 1998. Article 8 states:
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The BBC argued that it had competing rights under Article 10 ECHR, which states:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers…
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Here the Judge’s job was to weigh the two competing rights. Finding for Sir Cliff Richard he said that the BBC:
“infringed these (Article 8) rights without a legal justification. It did so in a serious and also somewhat sensationalist way.”
Quantum
Quantum, or the value of damages to be paid in the claim, is considered separately after liability has been established. The purpose of damages is to put the Claimant in the pre-incident position so far as possible. It is impossible for a Court to accurately value general damages and nothing can give a Claimant their lives back. An appropriate amount of financial compensation is ordered to be paid by the losing Defendant instead. The Court considered both “general damages” and “special damages”.
General Damages
Aspects of general damages vary depending on the circumstances. Sir Cliff Richard’s case included elements found in personal injury and defamation cases. Mr Justice Mann considered the following heads of claim:
(a) Damages can and should be awarded for distress, damage to health, invasion of Sir Cliff’s privacy (or depriving him of the right to control the use of his private information), and damage to his dignity, status and reputation…
(b) The general adverse effect on his lifestyle (which will be a function of the matters in (a)).
(c) The nature and content of the private information revealed. The more private and significant the information, the greater the effect on the subject will be (or will be likely to be). In this case it was extremely serious. It was not merely the fact that an allegation had been made. The fact that the police were investigating and even conducting a search gave significant emphasis to the underlying fact of that an allegation had been made.
(d) The scope of the publication. The wider the publication, the greater the likely invasion and the greater the effect on the individual.
(e) The presentation of the publication. Sensationalist treatment might have a greater effect, and amount to a more serious invasion, than a more measured publication.
Special Damages
Special damages are quantifiable losses. Each item must be proved by the Claimant.
Valuing Sir Cliff Richard’s Compensation Claim
Sir Cliff’s public profile meant that the raid on his home quickly became a massive story. Millions followed it in the news world-wide. He gave evidence in Court about its terrible personal toll. Mr Justice Mann noted that:
Sir Cliff felt trapped in his own home, and he felt despair and hopelessness leading, at times, to physical collapse. At first he did not see how he could face his friends and family, or even his future. He felt the whole world would be talking about whether he had committed the alleged offences or not. Sleeping was difficult; he resorted to sleeping pills.
And
The impression that he had was that his life’s work was being torn apart. The adverse publicity removed his status as a confident and respected artist and what he described as “a good ambassador for this country”. He felt and still feels tainted. His health suffered, and he contracted shingles, which he put down to stress. Although there was no medical evidence as to that causation I accept that throughout the entire period he was the subject of severe stress, and that that stress far exceeded the anxiety, and perhaps some level of stress, that he would inevitably have been under from the investigation by itself had the news of it not been publicised.
In addition to the physical toll, the Judge considered the damage to Sir Cliff’s reputation. After that he assessed General Damages at £190,000, noting that he had no direct comparison in existing case law. The Judge’s candid comment is worth noting: every case is different, and it is part of his job to make assessments like this.
Aggravated Damages
In some cases, the conduct of the Defendant is considered worthy of additional sanction, so that aggravated and, very exceptionally, exemplary damages can be awarded on top of the basic general damages award. Mr Justice Mann considered whether the BBC should pay an additional amount for injury to Sir Cliff’s feelings. In support of this claim, the Claimant alleged the BBC caused suffering due to:
- a flagrant disregard for his privacy and failure to give him adequate notice of the broadcast, so depriving him of the opportunity to seek an injunction to prevent the broadcast
- a failure to acknowledge wrongdoing or apologise
- the Corporation submitting the broadcast to the Royal Television Society awards in the category “Scoop of the Year”
- its conduct in litigation
- intrusive cross-examination.
The Judge considered each allegation in turn. He considered that the failure to give notice (in point 1) had merit but included that within the existing £190,000 award for general damages.
He dismissed the other points except point 3. The Judge said that the BBC caused additional distress in submitting the broadcast for the award, which it did not win. He awarded Sir Cliff an additional £20,000 by way of aggravated damages.
After this exercise the Judge considered if the overall amount for general and special damages was appropriate. He said:
That gives a total of general and aggravated damages of £210,000. I need to stand back and reflect on whether, overall, that is an appropriate figure to award. Having performed that exercise I am satisfied that it is. It is a large figure, but this was a very serious invasion of privacy rights, which had a very adverse effect on an individual with a high public profile and which was aggravated in the manner to which I have referred.
Special Damages
The Claimant’s quantifiable losses included professional fees due to his solicitors, PR firm, and others. He also claimed to suffer financially due to the loss of opportunity to publish a revised biography.
The Judge was not asked to rule on specific amounts. Instead, to help the parties reach agreement or guide future hearings, he considered whether “causation” was established by the Claimant in respect of the various things Sir Cliff claimed.
Asking the question, “did the breach cause the alleged loss?” he considered the heads of Sir Cliff’s special damages claim in turn, mostly approving them.
(NB It is likely that special damages were also included within the agreed compensation paid by South Yorkshire Police.)
Damages are not a windfall
As Sir Cliff Richard’s case shows, the compensation has been either agreed as fair between the parties, or court ordered after careful examination. In this respect Sir Cliff’s case is identical to every civil compensation award of damages. Money paid is not a “windfall”, “jackpot”, or other disparaging terms. As Mr Justice Mann said:
A claimant is entitled to proper compensatory damages and the figure I have specified is a proper figure for that purpose.
Why Celebrities are Different
Where Sir Cliff’s case differs is in the unusual size of the award for damage to his reputation. Most claimants suffer damage to their reputations in wrongly publicised matters involving the police but they don’t get awarded nearly as much compensation.
Consider my client RL’s story, which has many similarities to Sir Cliff’s case. RL was a working man with no criminal convictions. Essex police raided his flat in error looking for drugs. Both RL and his girlfriend were held in their home for over an hour while the police conducted a full search and established their innocence.
The media were tipped off about the raid, just like in Sir Cliff’s case. Local newspaper staff filmed and photographed the raid and later reported it. The paper described “Arrests after police bust for suspected drug dens”, identified the location in the front page headline “30 police storm homes in Rifle Hill drugs blitz”, and showed a blurred out photograph of a man being led away next to a caption reading “A suspected drug dealer is led away (left) following raids by police in Rifle Hill, Braintree.”
Although Mr L was not identified in publicity, his flat number was clearly visible in one image. The reader would be under the impression that my client was the man being led away.
To make matters worse, the police gave a statement which sought to justify the raid, saying that they went in to my client’s home because “information was brought to our attention about the possibility of drug use”.
Compensation for Damage to Reputation
While there are similarities to Sir Cliff’s case, RL’s case was never going to justify such an award. The damage to his reputation was not as significant as Sir Cliff’s. RL is not a world-famous celebrity. He was not personally identified in media coverage. The allegations were not as offensive to society. And yet the implication that my client was somehow involved in criminal activity still impugned his reputation. He suffered due to the police’s misconduct and was rightly compensated for it. His award was £4,000, which was an excellent settlement in the circumstances, and far more than the £1,500 Essex Police initially offered.
There can be no doubt that Sir Cliff’s high public profile played a part in the size of his award. The nature of the allegations, the “sensationalist” publicity, and his unusually high losses, were all factors. Celebrities may say they’re just like you and me, but in some ways that’s just not true.
Contact Donoghue Solicitors for help with your civil action against the police on 08000 124 246 or by completing the online form on this page.