Damages For Hurt Feelings

The Royal Court recently sat in the case of Cole v. Chief

Officer of the States of Jersey Police [2007] JRC 240. The

Plaintiff succeeded in the tort of misuse of private

information (sometimes also described as breach of

confidence).

The Plaintiff, in answering a local newspaper advertisement,

completed an application form for casual employment. Within the

application form the Plaintiff answered "no" to the

question enquiring whether he held a previous criminal record.

On this basis he received a preliminary offer of employment.

The wording of this provisional offer stated, "I confirm

that you have provisionally been allocated a position with

Jersey Post over the Christmas period, subject to satisfactory

Police checks".

Following a security check against the Plaintiff's

criminal record the offer of employment was withdrawn as it

showed convictions in the UK. The Rehabilitation of Offenders

(Jersey) Law 2001 was not in force at that time and these

offences were not therefore deemed expunged.

Following the Plaintiff's failure to secure a position

with Jersey Post he brought various actions against both Jersey

Post and Jersey Police for breaches of his data protection

rights, human rights and in negligence. His actions against

Jersey Post were struck out by the Court of Appeal in an

earlier hearing. The Court of Appeal ([2004] JCA 087) however

considered on the facts that the Plaintiff may have a claim

against the Police for breach of confidence or misuse of

private information and that he should amend his claim to

reflect this and how this breach caused injury to his

feelings.

Naomi Campbell

The leading case in England in this area, concerns Naomi

Campbell and the Mirror newspaper litigation ([2004] WLR 1232).

The Royal Court recognised that the tort of breach of

confidence or misuse of private information as developed under

English law should be recognised and applied in Jersey law.

The three elements of the tort taken and considered by the

court in turn were:

Whether the information was confidential. In the present

case the Defendant accepted that the Plaintiff's past

criminal record was confidential.

Whether the disclosure was unauthorised. This was a central

issue in the case. The Defendant submitted that the

Plaintiff had in fact consented to the disclosure of his

criminal record. This was a question of fact to be decided

on the evidence before the court. Drawing upon the Data

Protection (Jersey) Law 2005 the court held that consent in

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