Shobna Gulati and Others v MGN Ltd

JurisdictionEngland & Wales
JudgeMr Justice Mann
Judgment Date06 November 2013
Neutral Citation[2013] EWHC 3392 (Ch)
CourtChancery Division
Docket NumberCase No: HC12A04144, HC12A04145,
Date06 November 2013

[2013] EWHC 3392 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Royal Courts of Justice

Rolls Building, 7 Rolls Buildings

Fetter Lane, London EC4A 1NL

Before:

Mr Justice Mann

Case No: HC12A04144, HC12A04145,

HC12A04146, HC12A04147

Between:
(1) Shobna Gulati
(2) Abbie Gibson
(3) Sven Goran-Eriksson
(4) Garry Flitcroft
Claimants
and
MGN Limited
Defendant

Mr David Sherborne and Mr Jeremy Reed (instructed by Taylor Hampton Solicitors Ltd) for the Claimants

Desmond Browne QC and Matthew NicklinQC (instructed by Reynolds Porter Chamberlain LLP) for the Defendant

Hearing dates: 24 th & 25 th October 2013

Approved Judgment — Public judgment with redactions

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Mr Justice Mann Mr Justice Mann

Introduction

1

In the present 4 actions the defendants (MGN) have applied for summary judgment on two of them (the Gibson and Flitcroft actions, using the names of the claimants as descriptors) and have further applied to strike out parts of the Particulars of Claim in all four. The defendant has also sought to vary a costs order made by Vos J on the occasion of the first hearing of these applications. This judgment deals with the summary judgment and strike-out applications only.

The background to these actions and the applications.

2

MGN is a newspaper proprietor whose titles include the Daily Mirror, the Sunday Mirror and the Sunday People. These actions involve claims that the claimants' mobile phones were hacked by journalists employed by the newspapers, or by third parties acting for the newspapers, the hacking taking the form of listening to voicemail messages in the voicemail boxes without the consent (or knowledge) of the respective claimants, with the result that on occasions newspapers were able to publish stories about the private lives of the claimants or others which they would otherwise not have found out about or been able to verify. It is said that that activity infringes the privacy rights of the various claimants. I set out the details of the various claims, so far as relevant, below.

3

The actions were all started on 22 nd October 2012. The applications in this case were made in notices dated 26 th February 2013 and first came on before Vos J in April 2013. On that occasion it was adjourned for reasons that are in dispute in this application (the dispute is said to go to the costs order which should be made in relation to that hearing) and was to come back in July. There was a problem with counsels' availability in July, and it was adjourned over to this month (October 2013). Service of the Particulars of Claim is all that has happened in these cases; they have got no farther than that, and in particular Defences have not been served.

The nature of the 4 claims

4

All 4 claims are based on claims that mobile phones of the respective claimants were hacked by persons working for the defendants. The cases all rely on articles that are said to have been published as a result of the hacking, both as evidence of the hacking (it is said that hacking is the most likely source of the story and therefore demonstrates that it occurred in relation to the claimant's phone) and as material on which damages should be based (at least in part). However, none of them pleads direct evidence of hacking in their particular cases in the sense of direct first hand evidence or records of particular hacking events. Instead, the Particulars of Claim propound a claim based on inference from various "generic" facts", that is to say various pleaded facts which are said to evidence a pattern of phone hacking in the tabloid industry generally, and the Mirror Group in particular, and each case also relies on the specific facts of the other three as part of the material from which it is said to be justifiable to infer that there was hacking in the individual case in question. The Particulars of Claim are therefore virtually the same in each case, since each case is pleaded in the other.

5

The structure of each Particulars of Claim is as follows:

(i) The first three paragraphs set out the identities of the parties, and cross-refer to the story about the claimant on the basis of which the hacking is alleged.

(ii) Paragraph 4 contains a general allegation that journalists on the defendant's newspapers habitually used techniques such as phone hacking or call data blagging (essentially getting information out of a data holder by misrepresentations) to obtain or verify stories. Paragraph 5 contains some averments described as "generic". They are allegations said to go to the allegation of phone hacking but which are general in their character and not, of themselves, confined to wrongdoing in relation to the claimants' phones. Paragraphs 4 and 5 are set out in the Appendix 1 to this judgment; it is a regrettable necessity that such an extensive part of the pleading has to be set out, but the case of the defendant requires it. Part of paragraph 5 is redacted in the publicly available version of this judgment because it relates to material emanating from a Mr David Brown in respect of which there are reporting restrictions because of certain criminal proceedings, and because it is said to carry its own confidentiality. However, I shall refer in general terms to the nature of this evidence later on. The basis of the redactions is the reason why my reference to that material is more oblique than would otherwise have been the case.

(iii) Paragraph 6 cross-refers to the first schedule. That schedule sets out details of the stories that appeared in the press in relation to each of the 4 claimants and says that the best particulars that the claimants can presently give appear in that schedule, and says that the claimants will rely on the habitual use of blagged or hacked material appearing in paragraph 5.

(iv) Paragraphs 7 to 12 contain allegations of duties owed, and breach based on the material previously referred to. Paragraphs 13 to 17 contain the relief claimed.

(v) Schedule 1 (as foreshadowed above) contains the details of the hacking affecting each claimant, so far as the claimant has those details. Schedule 2 contains the material cross-referred to in paragraph 5n.

(vi) Schedule 3 contains confidential material moved from the position of the redactions into a confidential schedule.

(vii) Paragraphs 4 and 5 contain a key to anonymised individuals referred to elsewhere in the pleading.

The general principles applicable to applications for defendants' summary judgment applications and applications to strike out

6

Many of these were not in dispute, and I can summarise them as follows. In relation to summary judgment applications the position is as follows.

(i) The usual way of trying disputes is to have a trial after the "normal processes" of disclosure and interrogatories have been gone through, though there are exceptions to that. One such exemption is that summary judgment may be given against a claimant if it is "clear beyond question that the statement of facts is contradicted by all the documents or other material on which it is based" ( Three Rivers v Bank of England (No 3) [2003] 2 AC 1 at para 95, per Lord Hope of Craighead).

(ii) The simpler the case, the easier it will be to take that view. "But more complex cases are unlikely to be capable of being resolved in that way without conducting a mini-trial on the documents, without discovery and without oral evidence. As Lord Woolf said in Swain v Hillman [2001] 1 All ER 91 at p95, that is not the object of the rule [CPR 24]. It is designed to deal with cases that are not fit for trial at all." So there should not be mini-trial.

(iii) Judgment may be given against the claim if it has "no real prospect of succeeding". "The word "real" distinguishes fanciful prospect of success … they direct the court to the need to see whether there is a "realistic" as opposed to a "fanciful" prospect of success." ( Swain v Hillman at page 92j).

(iv) The prohibition on mini-trials does not mean that everything that is said has to be accepted at face value. "In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent on those factual assertions may be susceptible of disposal at an early stage so as to save the costs and delay of trying an issue the outcome of which is inevitable." ( ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 at para 10, per Potter LJ).

7

Mr Desmond Browne QC, for MGN, submitted that a case should not be allowed to go for trial simply because it is asserted that some further evidence may turn up. In support of this submission he relied on ICI Chemicals v TTE Training [2007] EWCA Cv 725 at paras 12 to 14. He is right that a view to that effect was expressed by Moore-Bick LJ in that case but care must be taken in applying that view to a case such as the present. In that case Moore-Bick LJ was dealing with an argument that further facts might turn up which would affect the construction of a commercial document. He expressed the view that a submission that something might emerge should be treated "with caution", not that it should be rejected out of hand. Paragraph 14 of his judgment makes it clear that he is seeking to distinguish between real and fanciful prospects of success. That is the real distinction, in my view. He was also not dealing with the familiar case in which a claimant makes an ostensibly sustainable allegation but acknowledges that the process of disclosure is necessary to make the case stronger or to have it investigated properly. It is a familiar state of affairs that a claimant is ultimately reliant on disclosure from the other side in order to bring his case...

To continue reading

Request your trial
9 cases
  • Representative Claimants v Mgn Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 17 December 2015
    ...... only to a very few (sometimes only two) people, those privy to the information suspected others of leaking it. That led to distrust which had a very adverse effect on close relationships, ...In the case of Shobna Gulati he described his award for general hacking as for invasion "not reflected in" other awards ......
  • Various Claimants v MGN Ltd
    • United Kingdom
    • Chancery Division
    • 27 May 2022
    ...in order to plead a viable claim for misuse of private information. 74 In this regard, the decision of Mann J in Gulati v MGN Limited [2013] EWHC 3392 (Ch) is of importance. That judgment was on MGN's application for summary judgment against Mr Flitcroft and Ms Gibson and to strike out the......
  • Allianz Global Investors GmbH and Others v G4S Ltd (formerly known as GS4 Plc)
    • United Kingdom
    • Chancery Division
    • 10 May 2022
    ...Josiya v British American Tobacco plc [2021] EWHC 1743 (QB) at [44], [47] and [58]) and phone hacking cases (e.g. Gulati v MGN Ltd [2013] EWHC 3392 (Ch)). Where the impugned conduct is clandestine or concealed the court recognises that the claimant may need to rely on disclosure of docume......
  • Shobna Gulati and Others v MGN Ltd
    • United Kingdom
    • Chancery Division
    • 21 May 2015
    .... There were attempts to strike out two of the original claims and parts of two others. Those applications all failed ( [2013] EWHC 3392 (Ch)). 21 Then at the end of last summer the position suddenly changed. In September 8 cases were progressing for trial. Suddenly, immediately before a h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT