Costa v Imperial London Hotels Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes,Lord Justice McFarlane,The Master of the Rolls,Lord Justice Maurice Kay,The Lord Chief Justice |
| Judgment Date | 01 May 2012 |
| Neutral Citation | [2012] EWCA Civ 48,[2012] EWCA Civ 672 |
| Docket Number | Case No: B3/2011/2058,Cases No: A3/2010/2862 and A3/2011/0688 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 2012 |
[2012] EWCA civ 48
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Hon Mr Justice Vos and the Hon Mr Justice Mann
Royal Courts of Justice
Strand, London, WC2A 2LL
The Lord Chief Justice of England and Wales
The Master of the Rolls
and
The Vice-President of the Court of Appeal (Civil Division)
Cases No: A3/2010/2862 and A3/2011/0688
Claims Nos HC10C01562 and HC10C03630
Gavin Millar QC and Alexandra Marzec (instructed by Payne Hicks Beach) for the Appellant
Jeremy Reed (instructed by Schillings) for the Respondent Coogan (and by Taylor Hampton) for the Respondent Phillips
Thomas de la Mare (instructed by Treasury Solicitor) for the the Secretary of State for Business Innovation and Skills, as an interested party
Hearing dates: 28 & 29 November 2011
The issues raised on these two appeals concern the extent and effect of section 72 of the Senior Courts Act 1981 ('section 72'), which cuts down the common law privilege against self-incrimination in relation to certain types of claim. The issues arise in the context of claims brought by two individuals who allege that their mobile telephone voice messages have been unlawfully intercepted (i.e. that their phones had been hacked into) by Glenn Mulcaire, a private investigator engaged by News Group Newspapers Ltd ('NGN'), the owners of the recently closed newspaper, the News of the World.
The claims are brought by (i) Nicola Phillips, a former assistant to Max Clifford, the well known public relations consultant, and (ii) Stephen Coogan, the well known comedian. Mr Coogan and Ms Phillips (together 'the claimants') each allege that voice messages on their mobile telephones ('voice messages') have been unlawfully intercepted by, or on the instructions of Mr Mulcaire and/or NGN, and that they have a cause of action in breach of confidence and in misuse of private information.
Ms Phillips originally brought proceedings against NGN alone. However, on 28 October 2010, she applied to Mann J (i) for permission to add Mr Mulcaire as a defendant, and (ii) for an order that Mr Mulcaire swear an affidavit identifying (a) the individuals who had instructed him directly or indirectly to intercept her voice messages and the voice messages of others working for Mr Clifford, (b) the nature of the interception he was instructed to carry out, and (c) similar facts about the interception of voice messages of another employee of Mr Clifford. Mr Mulcaire did not resist being joined as a defendant, but he objected to being required to swear the affidavit as sought, on the ground that it would tend to incriminate him, because intercepting voice messages is an offence under section 1(1) of the Regulation of Investigatory Powers Act 2000 (' RIPA'). Indeed, in January 2007, Mr Mulcaire had pleaded guilty and had been sentenced to six months in prison for offences under RIPA of a similar nature.
In answer to Mr Mulcaire's argument based on privilege against self-incrimination ('PSI'), Ms Phillips raised two points. The first was that there was no substance in the argument on the facts, because, if he gave the information sought, Mr Mulcaire would not, in fact, be at increased risk of prosecution under RIPA. Ms Phillips's second point was that there was no substance in Mr Mulcaire's argument on the law, because section 72 removed his PSI.
On 17 November 2010, Mann J gave judgment on Ms Phillips's application. He rejected her first point holding that, on the facts, 'prima facie Mr Mulcaire is entitled to invoke the privilege against self-incrimination' – [2010] EWHC 2952 (Ch), para 35. However, he concluded that Ms Phillips's second point was sound, as 'this action is one to which section 72 applies'— [2010] EWHC 2952 (Ch), para 50. He gave Mr Mulcaire permission to appeal.
Mr Coogan's claim was brought against both NGN and Mr Mulcaire. The relief sought by Mr Coogan in his particulars of claim included (i) an injunction restraining NGN and Mr Mulcaire from intercepting his voice messages, and from using or publishing any information which they had obtained from previous interceptions, (ii) information from Mr Mulcaire as to the identity of the individuals (a) who had instructed him to intercept Mr Coogan's voice messages, (b) to whom he had supplied information or recordings of such messages, and (c) whom he had instructed to hack into Mr Coogan's phone, and (iii) damages from both NGN and Mr Mulcaire. In his Defence, Mr Mulcaire relied on PSI for the same reason as in the claim brought by Ms Phillips. For the same reason, he also refused to answer most of the requests for further information served by Mr Coogan.
On 18 January 2011, Mr Coogan (together with another claimant, Andrew Gray) applied to Vos J for a declaration that Mr Mulcaire could not rely on PSI as he sought to do, for an order that he provide full answers to the requests for further information, and for an order striking out the passages relying on PSI in his Defence. The hearing required an adjournment and was only concluded on 16 February 2011.
On 25 February 2011, Vos J gave judgment, in which he dealt with the section 72 issue more fully than Mann J, who, he said, 'did not have the benefit that I have had of extensive citation of relevant authority' – [2011] EWHC 349 (Ch), para 7. Nonetheless, he reached the same overall conclusion as Mann J, namely that section 72 served to deprive Mr Mulcaire of PSI; accordingly, subject to one or two small exceptions, he acceded to Mr Coogan's application – see [2011] EWHC 349 (Ch), para 120. Vos J gave Mr Mulcaire permission to appeal.
Mr Mulcaire now appeals against the decisions of Mann and Vos JJ, and in particular the orders requiring him to make disclosure in connection with the messages which he intercepted ('the disclosure orders'). It is common ground that, were it not for section 72, he would be entitled to rely on PSI as he sought to do in both cases. Thus, although the claimants argue that the factual basis for Mr Mulcaire's claim to PSI is weak on the facts (because the Metropolitan Police have now gathered so much evidence in relation to journalists and investigators intercepting voice messages) there is no challenge to the conclusion reached on the first point by Mann J.
Section 72 and the issues in these appeals
The issues which have been debated on these appeals concern section 72, which is, so far as relevant, in the following terms:
'(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 … :
(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;
(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.
(3) …. [N]o 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 …, be admissible in evidence against that person …
(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;
….'.
The following arguments, which appear to be of some general significance, were relied on in this court by Mr Millar QC, who appeared with Ms Marzec, for Mr Mulcaire, to justify the contention that the disclosure orders should not have been made:
i) Information obtained by Mr Mulcaire from intercepting the voice messages of Ms Phillips and/or Mr Coogan was not 'intellectual property' and therefore section 72 cannot apply;
ii) If the information in question was 'intellectual property':
(a) Mr Mulcaire would, if he were required to provide all the information ordered by Mann J, and some of the information ordered by Vos J, be at risk of being prosecuted for an offence which is not a 'related offence', so section 72 does not apply;
(b) Section 72 is inconsistent with Article 6 of the European Convention on Human Rights ('the Convention'), and the court should accordingly make a declaration of incompatibility.
In relation to these arguments, the Coogan claim has taken a somewhat curious course. In the...
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