GDPR Damages

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Article

17 October, 2019

The principles on how damages are assessed are set out below:

The subject matter The severity of the breach. The examples given are that breaches involving medical data or financial information will likely attract higher figures than other types of data, whereas 'social' information like where a person was at one point will be classed as low in terms of confidentiality.
Nature, Extent and Purpose of Misuse The relationship between the parties should be considered, and if it was a relationship of trust this will increase the compensation figure. If the breach was repeated or was in any way deliberate, this will also be reflected in the compensation amount.
Consequences Any steps the Defendant has had to take as a result of the breach will increase the amount of compensation.
Financial Loss to Claimant/Financial Gain to Defendant It is not required to show that there has been financial loss, but if the breach has led to real consequences for the claimant, this will increase the amount of compensation.
Mitigating and Aggrevating Factors Such as the breach being a genuine mistake or a belief that consent had been obtained.

Vento bands for injured feelings provide a very rough starting point:

Top bands for the most serious cases, such as where there has been a lengthy campaign of harassment £25,700 - £42,900
Middle band for serious cases which do not merit an award in the highest band. £8,600 - £25,700
Bottom band for less serious cases, such as a one-off incident or an isolated event. £900 - £8,600

There are three types of damages that can be claimed for false imprisonment. These are basic, aggravated and exemplary damages:

Basic damages are awarded for the actual time that you were imprisoned.

Aggravated damages are awarded for any mental distress or injury to feelings caused by the unlawful arrest or detention.

Exemplary damages are to punish the relevant authority for any particularly oppressive or insulting behaviour. Exemplary damages are, however, only usually payable in exceptional circumstances.

Also potential for a personal injury claim for a recognised medical condition if this was incurred solely as a result of the wrongful arrest or unlawful detention. Interesting point will be if it has aggravated a pre-existing mental health issue.

Damages Guidelines

The leading case in this area is the case of Thompson & Hsu v Commissioner of Police of the Metropolis [1998] QB 498, which gave guidelines as to the amount of damages that a Court should consider awarding. It held that:

  • In a straightforward wrongful arrest and imprisonment case the starting point is likely to be £500 for the first hour;
  • If aggravated damages are to be awarded then they are not likely to be less than £1,000;
  • The total amount of basic and aggravated damages should be what is considered fair compensation for the injury suffered; and
  • Exemplary damages should be awarded where the basic and aggravated damages are an inadequate punishment for the defendants. If these are applicable then they are not likely to be less than £5,000. The absolute maximum is likely to be £50,000 and the conduct for this would need to directly involve officers of at least the rank of superintendent.
  • In conclusion - from what I know of the case, it's worth @£1,500 minimum and depending on the distress caused and the situation involving the claimant, it may well increase.
  • If you were to plead an article 8 right in the pleadings, this will take you out of the small claims limit. Also due to complexity of issues re aggravated damages that should assist also.

For more information contact John Bennett in our Data Breach Claims department via email or phone on 01254 872111. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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