Coogan v News Group Newspapers Ltd and another; Phillips v News Group Newspapers Ltd and another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Vos |
| Judgment Date | 25 February 2011 |
| Neutral Citation | [2011] EWHC 349 (Ch) |
| Docket Number | Case No: HC10C01890 |
| Court | Chancery Division |
| Date | 25 February 2011 |
[2011] EWHC 349 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Vos
Case No: HC10C01890
Case No. HC10C03630
Mr Jeremy Reed (instructed by Schillings Lawyers) for the Claimant in each case
Mr Anthony Hudson (instructed by Farrer & Co) for the 1 st Defendant
Ms Alexandra Marzec (instructed by Payne Hicks Beach) for the 2 nd Defendant
Hearing dates: 18 th January, 14 th to 16 th February 2011
Mr Justice Vos:
Introduction
These actions arise from the well-known allegations of mobile telephone interception made against Mr Glenn Mulcaire, the second Defendant ("Mr Mulcaire"), a private investigator engaged by the News of the World (the "NotW"), a national Sunday newspaper. The 1 st Defendant, News Group Newspapers Limited ("NGN"), is the proprietor of the NotW.
Two actions are before me. They have been brought by two well-known figures, the football commentator Mr Andrew Gray ("Mr Gray"), and the comedian Mr Stephen Coogan ("Mr Coogan"), respectively. The actions are very similar indeed, so that these applications are being heard together. The same solicitors and counsel appear in both actions.
In the broadest of outline, there are 3 substantive issues which I have to determine in each case:-
i) First, whether the court should make interim declarations that Mr Mulcaire is prevented from relying upon the privilege against self-incrimination (the "privilege" or "PSI") in respect of the claims against him by virtue of section 72 of the Senior Courts Act 1981.
ii) Secondly, whether the Claimants should be permitted to amend their Particulars of Claim to allege that Mr Mulcaire intercepted the Claimants' telephone voicemail messages specifically comprising or including what is pleaded as "commercial information".
iii) Thirdly, whether Mr Mulcaire should be required to give certain further information under Part 18 CPR in relation to his alleged telephone voicemail interception activities, particularly in relation to persons other than the Claimants.
The first and second issues are related because the Claimants are seeking to amend their Particulars of Claim in order to support their objective of demonstrating that these proceedings are "for the infringement of rights pertaining to intellectual property" within the meaning of section 72(2)(a) of the Senior Courts Act1981. Only if that sub-section is satisfied will Mr Mulcaire's otherwise acknowledged right to take advantage of the privilege be abrogated by section 72.
The first and third issues are also related since it is acknowledged that some of the requests for further information made by the Claimants stand or fall by Mr Mulcaire's right to invoke the privilege.
The procedural course of these applications has been somewhat fitful, mainly because the parties started off by thinking that the outcome was entirely determined by the decision of Mann J in the related case of Nicola Phillips v. Glenn Mulcaire and others [2010] EWHC 2952 (Ch) (the " Phillips case"). That case is now proceeding to the Court of Appeal, and is due to be heard in a window commencing at the end of May 2011. The parties are likely to wish to ask the Court of Appeal to hear an appeal from the decision I reach on the section 72 point at the same time as it hears the Phillips case. One of the reasons why I refused Mr Mulcaire's application further to adjourn the hearing of this case on Monday 14 th February 2011 was in order to facilitate that possibility.
As will appear in due course, Mann J did not have the benefit that I have had of extensive citation of relevant authority over a hearing lasting over 3 days in total. It would not be unfair to comment, I think, that the parties' awareness of the complexity of the issues raised by these applications grew as the hearing progressed. Indeed the central submissions made by each side on the crucial question as to the meaning of the words "commercial information" in the definition of "intellectual property" in section 72(5) of the Senior Courts Act 1981 only finally crystallised on the 15 th February 2011. It is probably useful to set out the statutory provisions and those competing central submissions at the outset and before dealing in detail with the rather intricate facts that have given rise to these applications.
Section 72 of the Senior Court Act 1981
Section 72 provides as follows under the heading: "[w]ithdrawal of privilege against incrimination of self or spouse in certain proceedings". I have highlighted the most important parts of the section:-
"(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person … to proceedings for a related offence or for the recovery of a related penalty—
(a) from answering any question put to that person in the first-mentioned proceedings; or
(b) from complying with any order made in those proceedings.
(2) Subsection (1) applies to the following civil proceedings in the High Court, namely—
(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.
(3) Subject to subsection (4), no statement or admission made by a person—
(a) in answering a question put to him in any proceedings to which subsection (1) applies; or
(b) in complying with any order made in any such proceedings,
shall, in proceedings for any related offence or for the recovery of any related penalty, be admissible in evidence against that person …
(4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.
(5) In this section—
"intellectual property" means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property;
"related offence", in relation to any proceedings to which subsection (1) applies, means—
(a) in the case of proceedings within subsection (2)(a) or (b)—
(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or
(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;
(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;
"related penalty", in relation to any proceedings to which subsection (1) applies means—
(a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate;
(b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.
(6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description".
The central submissions of the parties
Mr Jeremy Reed, counsel for the Claimants in both actions, submitted that the words "technical or commercial information" in the definition of "intellectual property" in section 72(5) should be understood as if it read "protectable technical or commercial information".In the broadest outline, he contended that, if the commercial information was not protectable by a claim for breach of confidence, the proceedings could not be for "infringement of rights pertaining to any intellectual property" within section 72(2)(a). Put another way, therefore, the epithet "protectable" must be understood to describe the "technical or commercial information" intended to be covered because the claim in question must be a proceeding "for infringement of rights pertaining to [technical or commercial information]", and it could not be such a proceeding unless the commercial information in question could be protected by action.
In consequence, Mr Reed submitted that the expression "commercial information" should cover any information with a commercial value which could be protected by an action for breach of confidence. He relies in this regard in particular on dicta of the majority of their Lordships in Douglas v. Hello! Ltd. [2008] 1 AC 1, and on the judgment of Lord Neuberger MR in Tchenguiz v. Imerman [2010] EWCA Civ 908, to which I shall refer in more detail in due course. Mr Reed did not accept that "technical or commercial information", according to his definition, would not necessarily be regarded as "intellectual property" as normally understood, because he pointed to some 25 different statutory definitions of "intellectual property", submitting that the term had entirely different meanings in different contexts.
Ms Alexandra Marzec, counsel for Mr Mulcaire, supported by Mr Anthony Hudson, counsel for NGN, argued that "commercial information" in section 72(5) had quite a different meaning. The definition should, she argued, be construed narrowly and purposively. "[C]ommercial information" must be construed in the context of the words that precede it, namely "technical or", and of the words that follow it, namely "or other intellectual property". It can,...
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