Phillips v Newsgroup Newspapers Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 17 November 2010 |
| Neutral Citation | [2010] EWHC 2952 (Ch) |
| Court | Chancery Division |
| Date | 17 November 2010 |
| Docket Number | Case No: HC10C01562 |
[2010] EWHC 2952 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Before: Mr Justice Mann
Case No: HC10C01562
Alastair Wilson QC and Mark Lewis (instructed by Taylor Hampton LLP) for the Claimant
Anthony Hudson (instructed by Farrer & Co) for the Defendant
Alexandra Marzec (instructed by Russell Jones & Walker) for the Proposed Second Defendant
Edwin Buckett (instructed by E B Solomons, Director of Legal Services) for the Respondent
Hearing date: 28 th October 2010
Mr Justice Mann:
Introduction
There are two applications before me in these proceedings, one seeking third party disclosure from the Commissioner for the Metropolitan Police, and the other seeking joinder of an additional Defendant and immediate disclosure of information from him.
Ground
The background to this case is a series of events which have attracted considerable publicity in the media. On 26 th January 2007 Glenn Mulcaire was sentenced to an aggregate of 6 months’ imprisonment in respect of various incidents in which he hacked into the mobile telephone messaging systems of a number of people, including three connected with the royal family, Mr Max Clifford (a publicity specialist) and Mr Gordon Taylor (a well-known personality in the football world). At the same hearing Mr Clive Goodman, the royal correspondent on the News of the World newspaper, was sentenced to four months’ imprisonment in relation to complicity on his part in those activities, though in relation to fewer victims.
After that prosecution, both Mr Taylor and Mr Clifford sued the News of the World for damages and other relief in respect of the activities of Mr Mulcaire. Both actions were settled. Mr Clifford's action was against Mr Mulcaire and against the First Defendant (Newsgroup Newspapers Limited, “NGN”), which publishes the News of the World. It was said in those proceedings that the News of the World engaged Mr Mulcaire to carry out hacking activities. The stance of the News of the World was that no-one at News of the World other than Mr Goodman was involved in such activities or knew of them.
At the time of the events in question the Claimant in the present proceedings, Ms Nicola Phillips, was employed by MCA (Mr Clifford's company), to assist him in his work, and she had two mobile phones which she used for both personal and business use. In the course of Mr Clifford's action, and before it settled, there was an application by Mr Clifford against the Information Commissioner for disclosure of information about those to whom Mr Mulcaire supplied information. The request related to information as to the persons to whom Mr Mulcaire supplied information about voicemail messages “left for the Claimant's personal assistant (Nicola Phillips)”. Vos J made the order sought on 3 rd February 2010. The settlement of the action came some time after this order. It should be said that Ms Phillips was not actually Mr Clifford's PA (that was not her function), but this was obviously a reference to her. When this came to her attention she came to believe, for the first time, that her mobile phone had been hacked.
To her eyes this made sense of a document she had seen the previous December when she was asked by another employee of MCA to cast her eyes over (inter alia) a manuscript document to see if any of the telephone numbers on it meant anything to her and to see if she could identify the persons to whom those numbers belonged. The document (which I shall call the Mulcaire list) was a manuscript sheet, apparently seized by the Metropolitan Police in the course of their investigation into Mr Mulcaire (and the phone hacking generally), and which contained Ms Phillips’ name at the top, a partial date “28 th Jan”, a list of 39 complete telephone numbers (some of them duplicated, so there are about 30 unique numbers), and about 10 partial numbers (the first two digits—the rest are obscured). She recognised a significant number of the numbers, including one (appearing four times) belonging to Mr Ian Edmonson, another News of the World employee.
Putting all these facts together, Ms Phillips came to the conclusion that her phones too had been hacked into, and commenced these proceedings. Originally they were started against the News of the World. They sought damages, injunctive relief and other associated relief based on breaches of her rights of confidence and privacy. I shall have to give further details of the nature and structure of the claim when I come to consider the relief sought against Mr Mulcaire. The News of the World has served a Defence.
The application against the Metropolitan Police Commissioner
It is common ground that the Metropolitan Police are in possession of a certain amount of documentation acquired during its investigation of Mr Mulcaire and which it seized from him (and possibly others) in the course of that investigation. The application against the Commissioner is one for disclosure under CPR 31.17. Its width was very significantly reduced during the course of the hearing, more or less when anyone suggested a problem with its width, and as a result of that narrowing its form at the end of the hearing can be summarised as follows. The Metropolitan Police Commissioner is to disclose copies of documents seized by them in their investigation into the phone hacking leading to the two convictions referred to above, where those documents fall into one of the following categories:
(a) Documents containing the name of the Claimant, or identifying her;
(b) Documents containing her two mobile telephone numbers, numbers permitting access to her voicemail account and her home landline number;
(c) Any reference to the telephone numbers on the Mulcaire list or to the people to whom those numbers relate so far as those documents derive from the interception of Ms Phillips’ phone messages (with provision for the redaction of the material supplied so as to protect the privacy of third parties);
(d) Any other document seized from Mr Mulcaire which records or evidences the identity of telephone numbers of people who received interception information derived from Ms Phillips’ telephone and the nature of that interception information, again with redactions to protect third party privacy interests.
The purpose of the disclosure is said to be to demonstrate more clearly that there was hacking into her phone, the extent of it, the period over which it happened and the use to which the hacking was put. The assumption is that the numbers on the Mulcaire list were numbers that he got from the hacking exercise, and the disclosure exercise is intended to follow those numbers through and to see what other numbers Mr Mulcaire got from hacking into the phone system. At the moment the case against Mr Mulcaire exists in the realms of inference. It is known that Mr Mulcaire hacked into Mr Clifford's phone, and the order made by Vos J (with its preceding application) demonstrates that there was at that stage probably some evidence that Ms Phillips’ phone was a victim as well. Mr Mulcaire's modus operandi was apparently to hack into voicemail boxes, use any relevant information contained in voice messages there and note, and probably follow up, the telephone number from which the message came. It is said that those numbers would then become the subject of hacking in order to build up a pattern of linked people and information. Since she was an employee of Mr Clifford at the time (she has since left and is now self-employed, working in the same field) it can be inferred that she too would be a target of the sort of exercise conducted by Mr Mulcaire. What Ms Phillips does not yet know is the extent of the exercise so far as it was carried out in relation to, or flowing from, her phone. The information sought would also assist in identifying the person to whom any relevant information was passed, and in particular whether it was provided to NGN (which, interestingly, is “not admitted”, rather than denied in NGN's defence).
It is said that the documents which are sought from the Commissioner will enable Ms Phillips to establish the extent of her case, and to succeed on it to its proper extent. If it transpires that the trail goes nowhere, then she will have a commensurately weaker case. If it goes some way, she will have a commensurately stronger one. However, she does not know how far it goes, partly because the very activity she complains of is a covert one, the true extent of which will be hidden from the victim. The documents in the hands of the Metropolitan Police will help to fill in those gaps.
CPR 13.17 provides:
“(1) This rule applies where an application is made to the court under any Act or disclosure by a person who is not a party to the proceedings.
…
(3) The court may make an order under this rule only where —
(a) the documents of which disclosure is sought are likely to support the case of the applicant or adversely affect the case of one of the other parties to the proceedings;
And
(b) disclosure is necessary in order to dispose fairly of the claim or to save costs.”
NGN and Mr Mulcaire (both represented before me) did not adopt a position on this application. The position of the Commissioner, represented by Mr Edwin Buckett, was that he took a neutral stance overall, but drew my attention to the requirements of the rule, and to certain case law on its application. The case law draws attention to the fact that third party disclosure such as this is not routinely ordered and has to be properly justified in every case. Where an application is made against a body such as the Metropolitan Police,...
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