Cooper & Anor v Turrell

Factual and Procedural Background

The Defendant was a founder, director, and Chief Executive Officer of Company A, a public company listed on the Alternative Investment Market in London, until his termination on 4 June 2010. The Executive Chairman of Company A and other directors commenced three related actions against the Defendant concerning his conduct following his termination, including secret audio recordings made by the Defendant during meetings on that date.

The first action involves claims by the Executive Chairman for misuse of private information and/or breach of confidence arising from a secret audio recording of a private conversation concerning the Executive Chairman's health. The third action is by Company A for breach of confidence related to the same recording of directors' discussions and legal advice. The second action involves claims by both the Executive Chairman and Company A for libel based on multiple publications made by the Defendant, including voicemail messages, emails, and internet postings.

Judgment was entered for the Claimants on 21 June 2011 for damages to be assessed and other remedies, following the Defendant's non-compliance with court orders. The hearing for damages and other relief proceeded in the Defendant's absence after his applications for adjournments were refused.

Legal Issues Presented

1. Whether the Defendant's disclosures constituted breaches of privacy and confidentiality rights of the Executive Chairman and Company A, and the appropriate remedies.
2. What remedies should be granted in the defamation action, considering the meanings of the words complained of and the extent of their publication on the internet.

Arguments of the Parties

Claimants' Arguments

• The secret audio recording captured private and confidential information, including health-related information about the Executive Chairman, which was unlawfully disclosed.
• The publications made by the Defendant were defamatory, false, and malicious, damaging the reputations of both the Executive Chairman and Company A.
• The Defendant's conduct post-termination, including internet postings and emails, constituted an illegitimate campaign aimed at damaging the Company and the Executive Chairman.
• Injunctive relief, delivery up of recordings, and damages were appropriate remedies given the breaches and harm caused.

Defendant's Arguments

• The Defendant denied that the conversations recorded were private and contended that the health information disclosed was already public through earlier media disclosures by the Executive Chairman.
• He challenged the particularity of the confidentiality claim and argued that the voicemail was slander, not libel, requiring proof of special damage.
• The Defendant pleaded justification (truth) and qualified privilege in relation to the publications.
• He denied knowledge of the Executive Chairman's medical history at the time of appointment and disputed the credibility of the Claimants’ witnesses.
• The Defendant claimed to be unable to attend the damages hearing due to passport renewal, requesting adjournment, which was refused for lack of supporting evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jeynes v News Magazines Limited [2008] EWCA Civ 130	Test for determining the meaning of defamatory words (reasonableness, hypothetical reasonable reader, rejection of strained meanings).	The court adopted this test to determine the meanings borne by the words complained of and found the meanings attributed by the Claimants to be correct.
Hospital for Sick Children (Board of Governors) v Walt Disney Productions Inc [1968] 1 Ch 52	Enforceability of injunctions against defendants abroad and third parties within jurisdiction.	Supported the court's decision to grant an injunction despite the Defendant's absence from the jurisdiction.
Babanaft International Co v Bassatne [1990] Ch 13	Provisions for injunctions with territorial limits and practice guidance on interim non-disclosure orders.	The court included a proviso in the injunction consistent with this authority to limit its effect outside the jurisdiction.
Campbell v MGN [2002] EMLR	Damages for misuse of private information, including compensation for distress and aggravated damages.	Referenced as a benchmark for awarding damages for misuse of private information.
Archer v Williams [2003] EMLR 38	Damages for misuse of private information.	Considered in assessing damages for misuse of private information.
McKennit v Ash [2006] EMLR 10	Damages for misuse of private information.	Referenced in relation to damages for misuse of private information.
Mosley v News Group Newspapers Ltd [2008] EMLR 20	Damages for misuse of private information and defamation, highlighting deterrent effect and extent of publication on the internet.	Used as a principal guide for awarding damages, with recognition of greater damages warranted due to the Defendant's conduct.
Gleaner Company Ltd v Abrahams [2004] 1 AC 628	Damages in libel serve both compensation and deterrence.	Supported the court’s approach to damages in libel cases.
John v MGN Ltd [1997] QB 586	Ceiling on general damages in libel cases.	Referenced to contextualize limits on damages awards.
English and Scottish Co-operative Properties Mortgage and Investment Society Limited v Odhams Press Limited [1940] 1 KB 440	Corporations need not prove actual damage in libel; damages presumed.	Applied to support awarding substantial damages to Company A.
Houston v Smith (unreported, 1993)	Damages in defamation involving a small number of professional contacts.	Used to illustrate that publication to a limited professional audience can warrant substantial damages.

Court's Reasoning and Analysis

The court found that the Defendant's secret audio recording and subsequent disclosures breached the privacy and confidentiality rights of the Executive Chairman and Company A. The recorded conversations were private and confidential, particularly as they included privileged legal advice. The Defendant's defenses, including claims that the information was already public or lacked particularity, were rejected.

Regarding the defamation claims, the court applied the established legal test for meaning, concluding that the defamatory meanings attributed by the Claimants were the meanings the words bore. The Defendant's defenses of qualified privilege and justification were dismissed due to evidence that he knew the statements were false and acted maliciously.

The court accepted the credibility and detailed evidence of the Claimants’ witnesses, who attended for cross-examination, and disbelieved the Defendant’s unverified statements and unsupported claims.

The court acknowledged the serious nature of the Defendant's campaign of libel and misuse of private information, the extent of publication including on the internet and social media, and the significant harm caused to the reputations and business interests of the Claimants.

In granting injunctive relief, the court considered the Defendant's absence from the jurisdiction and found it did not preclude granting an injunction, noting enforceability against third parties within the jurisdiction and the Defendant's continuing connections to entities within the jurisdiction.

Damages were assessed with reference to comparable cases, emphasizing the need for compensation, vindication, and deterrence. The court carefully avoided double counting damages for distress in the libel and misuse of private information claims.

Holding and Implications

The court entered judgment in favor of the Executive Chairman and Company A with the following awards:

• £30,000 damages to the Executive Chairman for misuse of private information (action number 3031).
• £50,000 damages to the Executive Chairman for libel (action number 3032).
• £30,000 damages to Company A for libel (action number 3032).
• £10,000 damages to Company A for breach of confidence (action number 3033).

The court granted injunctive relief restraining further publication of the confidential and defamatory material and ordered delivery up of the audio recordings and related materials.

The decision directly affects the parties by affirming the Claimants' rights to privacy, confidentiality, and protection from defamation, and imposes remedies accordingly. No new legal precedent was established; rather, the judgment applied established principles to the facts of this case, reinforcing the courts' approach to privacy, confidentiality, and libel in the context of corporate disputes and internet publications.