Hugh Grant v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 26 May 2023 |
| Neutral Citation | [2023] EWHC 1273 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2022-000412 |
[2023] EWHC 1273 (Ch)
Mr Justice Fancourt
Case No: BL-2022-000412
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch)
IN THE MOBILE TELEPHONE VOICEMAIL INTERCEPTION LITIGATION
Royal Courts of Justice
Rolls Building, Fetter Lane,
London, EC4A 1NL
Mr Anthony Hudson KC, Mr Ben Silverstone, Mr Harry Lambert and Ms Radha Bhatt (instructed by Clifford Chance LLP) for the Defendant
Mr David Sherborne and Mr Ben Hamer (instructed by Gunnercooke) for the Claimant
Hearing dates: 25 – 27 April 2023
APPROVED JUDGMENT
This judgment was handed down remotely at 10.00 am on 26 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
NGN's application
By application notice dated 7 December 2022, the Defendant, News Group Newspapers Limited (“NGN”), applied to strike out, or alternatively for summary judgment in, the whole of the claim brought by Mr Hugh Grant on 9 March 2022 in the Mobile Telephone Voicemail Interception Litigation (“MTVIL”). Mr Anthony Hudson KC appeared with Mr Ben Silverstone, Mr Harry Lambert and Ms Radha Bhatt on behalf of NGN and Mr David Sherborne and Mr Ben Hamer appeared on behalf of Mr Grant. I heard the application over 3 days, with detailed argument on matters of law and fact.
Although the application issued by NGN was to strike out these claims pursuant to rule 3.4 of the Civil Procedure Rules and for summary judgment in the alternative, Mr Hudson readily accepted that in reality this was an application for summary judgment. If that did not succeed, the strike out application would not.
The issue raised by the application is whether Mr Grant's claim was statute-barred when issued. It is common ground that the primary limitation period under s.2 Limitation Act 1980 (“the Act”) expired long before the claim was issued, but Mr Grant has pleaded reliance on s.32(1)(b) of the Act as suspending the running of time until about 2021. In that year, he explained in his witness statement dated 20 March 2023, he saw for the first time evidence that showed that NGN had targeted him, in particular in 2011, and had carried out acts of unlawful information gathering (“UIG”) on many other occasions. It was only then, he says, that he realised that he had a claim against NGN in relation to the conduct of employees of The Sun, one of NGN's newspapers.
The reference to The Sun is significant because Mr Grant brought a claim in the MTVIL against NGN in 2012, but only in relation to the publication of articles in (and UIG conducted by employees of) the News of the World. There is no suggestion that the settlement in that claim precludes his bringing the current claim in relation to UIG by employees of The Sun.
The starting point is Mr Grant's 2022 claim, which, as indorsed on the claim form, is for:
“Damages (including aggravated damages) for misuse of private information by journalists or other third parties acting or working for and on behalf of The Sun newspaper in relation to the obtaining or use of private or confidential information relating to the Claimant or his private life by means of unlawful information gathering techniques (such as the accessing or interception of his landline or mobile phones and their voicemail or answer messaging facilities, and/or blagging his private information or the instruction and use of private investigators) and the publication of articles in The Sun arising out of or containing or being corroborated by the same.”
The claim is therefore based solely on the tort of misuse of private information.
Mr Grant filed “claimant-specific” Particulars of Claim dated 13 July 2022, which were expressed to be supplemental to the Re-Amended Generic Particulars of Claim for Pinetree Claims and the Re-Amended Generic Particulars of Concealment and Destruction. These pleadings give very detailed particulars of a ‘generic’ claim relied upon by all claimants within the MTVIL, alleging the considerable extent of the UIG of NGN, the extent of internal knowledge and encouragement of what was being done by senior executives and editors, and the lengths to which editors and executives went in an endeavour to conceal the alleged UIG and destroy evidence of it, including lying on oath to the Leveson Inquiry and Parliament. These generic particulars are adopted by individual claimants as parts of their claims.
Section 32(1) of the Act provides, so far as material:
“… where in the case of any action for which a period of limitation is prescribed by this Act, either –
…..
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; ….
… the period of limitation shall not begin to run until the plaintiff has discovered the …concealment …or could with reasonable diligence have discovered it.”
It is not in dispute, for the purposes of this application, that NGN deliberately concealed facts relevant to Mr Grant's rights of action. Indeed, despite its continuing implacable denials of wrongdoing at The Sun, NGN accepts that all the allegations of deliberate concealment pleaded against it are to be assumed to be true for the purposes of this application. These allegations are found in the schedules of concealment, the schedule of NGN's unlawful acts and lies appended to Mr Grant's Particulars of Claim and are pleaded in the Re-amended Generic Particulars of Concealment and Destruction. If true – which will be a matter for the trial due to take place in January 2024 – these allegations would establish very serious, deliberate wrongdoing at NGN, conducted on an institutional basis on a huge scale. Of particular relevance for this application, they would also establish a concerted effort to conceal the wrongdoing by hiding and destroying relevant documentary evidence, repeated public denials, lies to regulators and authorities, and unwarranted threats to those who dared to make allegations or notify intended claims against The Sun.
NGN's acceptance that the concealment allegations should be assumed to be true for the purposes of this application means that the only matter in issue is whether Mr Grant has a realistic prospect at trial of proving that he did not know about the concealment and could not with reasonable diligence have discovered it until 9 March 2016 or later (the burden as to which will be on him). I will refer to this critical date as “the Applicable Date”. More specifically, since this is NGN's summary judgment application, the burden lies on NGN to satisfy the court at this stage that there is no real prospect of Mr Grant so proving at a trial.
What is of paramount importance in analysing the question of concealment and knowledge is a correct analysis of the claim that has been issued. It is facts relevant to the rights of action that are the subject of the claim that must have remained concealed beyond the Applicable Date: see Various v MGN Ltd [2022] EWHC 1222 (Ch) at [63], [90]. I will return to Mr Grant's Claim Form and his Particulars of Claim after summarising the law on the application of s.32.
The law on s.32(1) Limitation Act 1980
What s.32(1) means and how it is to be applied has long been the subject of judicial analysis and explanation. In particular, the words “any fact relevant to the plaintiff's right of action” have been explained as being the essential facts that a claimant has to prove to establish a prima facie case, as distinct from evidence required to prove the case (per Neill LJ in C v Mirror Group Newspapers [1997] 1 WLR 131 at 138H). This was known as the “statement of claim test”. As explained by Buxton LJ in AIC Ltd v ITS Testing Services (UK) Ltd (“The Kriti Palm”) [2006] EWCA Civ 1601 at [453]:
“The court therefore has to look for the gist of the cause of action that is asserted, to see if that was available to the claimant without knowledge of the concealed material.”
More recently, the test has been considered at the highest level, in Test Claimants in the FII Group Litigation v HMRC [2022] AC 1 (“ FII”) and again by the Court of Appeal in Gemalto Holding BV v Infineon Technologies AG [2022] 3 WLR 1141 (“ Gemalto”).
FII was a claim for restitution and relief from the consequences of a mistake of law. The claimants had paid tax that was not lawfully due and claimed repayment, with interest. It was therefore a case falling under s.32(1)(c) (action for relief from the consequences of a mistake), not s.32(1)(b). The Supreme Court (in a joint judgment of Lords Reed and Hodge) considered that the date of discovery had nothing to do with discovering the truth of the facts alleged in the claim, since limitation periods applied to claims that were disputed as well as to those that were admitted, and to well-founded causes of action and ill-founded causes of action alike. A party can at best only have a reasonable belief that their assertions are correct.
Their Lordships considered that the purpose of s.32(1) was to ensure that a claimant was not disadvantaged by reason of being unaware of the circumstances giving rise to their cause of action as a result of fraud, concealment or mistake; and that time therefore ran from the point when a claimant knew, or could with reasonable diligence have known, that they had a worthwhile claim — or (which amounted to the same thing) knew, or could with reasonable diligence have known, that they made a mistake “with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence.”
The question in Gemalto was whether the test identified by the Supreme Court in FII applied in the same way in a case of fraud or deliberate...
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