Coogan v News Group Newspapers Ltd and another; Phillips v News Group Newspapers Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Clarke,Lord Dyson,Lord Hope,LORD WALKER,Lord Kerr |
| Judgment Date | 20 July 2012 |
| Neutral Citation | [2012] UKSC 28 |
| Date | 20 July 2012 |
| Court | Supreme Court |
[2012] UKSC 28
Lord Hope, Deputy President
Lord Walker
Lord Kerr
Lord Clarke
Lord Dyson
Appellant
Gavin Millar QC
Jeremy Reed
(Instructed by Payne Hampton)
Respondent
Michael Beloff QC
Alexandra Marzec
(Instructed by Taylor Hicks Beach)
Heard on 8, 9 and 10 May 2012
LORD WALKER (with whom Lord Hope, Lord Kerr, Lord Clarke and Lord Dyson agree)
This appeal raises two issues as to the common law privilege against self-incrimination. The first issue is as to the meaning of the words "proceedings for infringement of rights pertaining to … intellectual property" in section 72(2)(a) of the Senior Courts Act 1981 ("the 1981 Act"). The second issue is whether, on the footing that the appellant, Mr Glenn Mulcaire, would by complying with an order of Mann J made on 19 November 2010 tend to expose himself to criminal proceedings for conspiracy, such proceedings would or would not be for a related offence within the meaning of section 72(5) of the 1981 Act.
These issues arise in the context of the interception of mobile phone messages, at present a topic of widespread interest and concern. The respondent, the claimant in the proceedings, is Ms Nicola Phillips. She worked for Max Clifford Associates ("MCA"), the corporate vehicle of Mr Max Clifford, the well-known public relations consultant. Her responsibilities included both trying to place in the media favourable stories about clients of MCA, and trying to prevent the placing in the media of unfavourable stories about them.
Mr Mulcaire was during 2005 and 2006 working as a private investigator. He was often engaged by staff on the News of the World, then a Sunday newspaper published by News Group Newspapers Ltd ("NGN"). NGN is a party to the proceedings but did not appear before the Court of Appeal or in this Court. During the same period Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household.
After an investigation by the Metropolitan Police Mr Mulcaire and Mr Goodman were charged with one count of conspiracy to intercept communications, contrary to section 1(1) of the Criminal Law Act 1977 ("the 1977 Act"). This charge related to voicemail messages of three members of the royal household. Mr Mulcaire was also charged with five further counts under section 1(1) of the Regulation of Investigatory Powers Act 2000, one relating to voicemail messages on Max Clifford's mobile phone. In November 2006 Mr Mulcaire pleaded guilty to all these counts, and Mr Goodman pleaded guilty to the count of conspiracy. In January 2007 Mr Mulcaire was sentenced to a total of six months' imprisonment, and Mr Goodman to four months.
During 2008, 2009 and 2010 a large number of civil claims were commenced by individuals who claimed that messages on their mobile phones had been unlawfully intercepted. These claims were brought against NGN, and sometimes against Mr Mulcaire as well. They were often referred to as "phone-hacking" claims. Case-management of the claims was undertaken by Vos J. Many of the claims have already been compromised.
On 10 May 2010 Ms Phillips commenced proceedings against NGN (initially as the only defendant). Part of her case (set out in particulars within her re-amended particulars of claim, para 8.5) is as follows:
"Ms Phillips's clients often leave voicemail messages on her mobile phone and she on theirs. In addition to dealing with their commercial affairs, Ms Phillips often develops amicable relationships with her clients over the course of time. Accordingly, voicemail messages left by Ms Phillips's clients sometimes contain factual information, some of which is private information and some of which is commercially confidential information. This includes private and/or confidential information relating to her clients' personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans."
The first issue, in more concrete terms, is whether the information described in this pleading is "technical or commercial information" falling within the definition of "intellectual property" in section 72(5) of the 1981 Act.
Paragraphs 9, 10 and 11 of her re-amended particulars of claim plead facts on the basis of which it is contended that Mr Mulcaire and NGN owed Ms Phillips an equitable duty of confidence and a duty of privacy in respect of her incoming and outgoing voicemail messages. The pleading also states (para 15) that Mr Mulcaire was at the time "a contracted employee of NGN" (though counsel did not treat that as relevant to the issues in this appeal). Ms Phillips claims an injunction, detailed disclosure of information, delivery up of documents, and an inquiry as to damages or (at her election) an account of profits. She does not claim that the alleged interception of her emails has caused her personal financial loss. Her pleaded case is verified by her appended statement of truth and a short witness statement by her solicitor, Mr James Heath.
On 12 October 2010 Ms Phillips applied for an order that Mr Mulcaire should be joined as a defendant in the proceedings and that he should serve a witness statement disclosing information under several heads. Mr Mulcaire did not resist being joined as a party, but he did resist the order for disclosure on the ground of his privilege against self-incrimination. Against that Ms Phillips relied on section 72 of the 1981 Act as excluding the privilege. She was successful before Mann J, who gave judgment on 17 November 2010 [2010] EWHC 2952 (Ch). The Court of Appeal dismissed Mr Mulcaire's appeal on 1 February 2012 [2012] EWCA Civ 48, [2012] 2 WLR 848. At the same time it dismissed a similar appeal from Vos J in proceedings brought by Mr Stephen Coogan, the well-known comedian. Mr Mulcaire appeals to the Supreme Court with permission granted on 14 February 2012. In the meantime Mr Ian Edmondson, an employee of NGN, has been joined as a third defendant in the proceedings.
Section 72, as amended in immaterial respects by the Copyright, Designs and Patents Act 1988 and the Civil Partnership Act 2004, is 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 or for the recovery of a related penalty—
(a) from answering any questions 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 or (unless they married or became civil partners after the making of the statement or admission) against the spouse or civil partner of 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 section was introduced as an amendment to the Bill which became (under its original name) the Supreme Court Act 1981. Its legislative purpose must be found within the four corners of the section; it is not part of any wider legislative scheme. But it is common ground that it was enacted as Parliament's response to the decision of the House of Lords in Rank Film Distributors Ltd v Video Information Centre [1982] AC 380. That was a case of large-scale...
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