Various Claimants (Claimants) News Group Newspapers Ltd and Another (Defendants) The Commissioner of Police for the Metropolis (Respondent) 'TPQ' (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 12 July 2013 |
| Neutral Citation | [2013] EWHC 2119 (Ch) |
| Docket Number | Case No: VARIOUS |
| Court | Chancery Division |
| Date | 12 July 2013 |
and
[2013] EWHC 2119 (Ch)
Mr Justice Mann
Case No: VARIOUS
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC, Julian KnowlesQC, David Sherborne, Jeremy Reed, and Sara Mansoori (instructed by Atkins Thomson) for the Claimants
Dinah Rose QC, Anthony Hudson and Ben Silverstone (instructed by Linklaters LLP) for the Defendants
Jason Beer QC and Jonathan Dixey (instructed by MPS) for the Respondent
David Owen permitted to represent 'TPQ'
Hearing dates: 8 th & 9 th July 2013
Introduction
This application is an application for an order providing for disclosure by the Metropolitan Police Service ("MPS") of certain information relating to phone hacking activities said to have been conducted by journalists engaged by the first defendant newspaper ("NGN").
In this litigation persons who believe they have been the subject of illegitimate phone hacking by journalists acting for NGN bring, or may wish to bring, actions. There are a great number of them – potentially hundreds – and this litigation has become managed litigation in order to make sure that it is properly and efficiently dealt with.
Among the difficulties that claimants face is that they do not necessarily know the extent of the activities that were conducted against them from matters within their own knowledge. The activities were covert and the extent, or even the existence, of hacking activities would be unlikely to be apparent to the victim. The activities have been discovered only as a result of police investigations. As a result the main evidence of hacking is, or in the first instance is derived from, material in the hands of the MPS as a result of those investigations.
For over 2 years, before and after a claim made by Lord Prescott, a former Labour minister, the MPS have been informing those who seemed to them to be victims of hacking activities that there seemed to have been hacking in relation to those victims. In the Prescott case itself various concessions were made by the MPS and since, as will appear, I think that they are important to the status of the MPS it is necessary to set them out here.
When the case brought by Lord Prescott (and others) was settled it settled on the basis of an agreed declaration, an agreed Statement of Reasons and agreed letters contained in a Schedule to the order containing the declaration. The Administrative Court made the declaration, but with misgivings and qualifications which mean that the declaration cannot be taken to represent a legal definition of the general position applicable to the functions of the MPS for the period following that order. Nonetheless the material was material to which the MPS submitted in the context of phone hacking generally. That material, so far as relevant, was as follows:
The declaration was that:
"In breach of its duties under Article 8 of the European Convention on Human Rights, in circumstances where the interference with the individuals' right to respect for their private lives may have amounted to the commission of a criminal offence, the Defendant [viz the MPS] failed to take prompt, reasonable and proportionate steps to ensure that those identified as potential victims of voicemail interceptions were made aware of:
(a) The interference with the right to respect for private life that may have occurred; …
(c) The steps they might take to protect their privacy; and
(d) …The identity of those whom the police believed to be primarily responsible for the interception."
Such steps should have included informing the public generally, by announcements in the media, to the mobile telephone companies, or otherwise (and should have included, where appropriate, individual notification)."
The schedule to the order contained "Letters of regret", 3 of which apologised for providing inadequate information and 2 of which apologised for not providing any information at all until a late stage. They all express a commitment to "providing those who have been subject to unlawful intrusion with an appropriate response."
The "Statement of Reasons" contains the following:
"6. The Metropolitan Police developed a "victim" strategy that detailed how certain categories of individuals would be identified and then informed that they may have been the subject of unlawful interception.
7. The victim strategy was not executed as originally intended…
11. As to the [declaration], the Metropolitan Police has reflected on the way in which it should notify victims and potential victims who are unaware that their rights may have been infringed, especially where they are large in number, and the positive obligations imposed on it under Article 8 of the European Convention on Human Rights.
12. The Metropolitan Police has agreed that, for certain types of crime, it should endeavour to make the facts known publicly at the appropriate time, for example by a press statement. Additionally, and depending on individual circumstances, it may also be appropriate in some cases to tell certain people individually."
In line with those newly declared intentions (and pursuant to apparent MPS policies), apparent victims have been informed to some extent of their position as apparent victims and given some information about the matter. Mr Beer was at pains to explain that there were various reasons why the MPS told victims of their apparent status, including the investigatory needs of the MPS itself and a perception that victims needed to know and should know. The MPS did not, however, provide those persons with the all the information in their hands (mainly documentary evidence). Some information might be imparted, but copy documents were not provided. This left the individuals in question in a difficult situation in relation to litigation. They had information which caused them to believe they had a claim, but did not have copies of the material they would ultimately need in order to make a full claim or assess its strength.
Eventually, and in a previous phase of this litigation arising out of the facts of a police investigation called Operation Weeting, an agreed regime was put in place in order to permit the provision of information by the MPS to claimants or potential claimants. To avoid the need for repetitive applications for disclosure, made by as many people as there were potential claimants, a regime was put in place intended to yield information without such applications. It was put in place as a result of an order which was consented to by the then claimants and by NGN, and not opposed by the MPS. The regime was intended to provide those victims with that sort of written information. Broadly speaking, a person who believed they had been, or might have been hacked (which they would usually understand themselves to be because the MPS will have told them), and who wished to obtain information that the police might have on the topic, would provide the MPS with agreed forms of undertakings (to restrict use of any information provided), whereupon the MPS would provide certain specified types of information, redacted to protect the interests of 3rd parties (and conceivably so as not to prejudice prosecutions). Not only did that enable the information which a claimant might think he or she required to be obtained for the purposes of suing; it also enabled that party to form an early view of merits of the case on the basis of such information, and it doubtless enabled an early settlement of the case. I am told that it also operated for the benefit of persons who elected to take advantage of a private arbitration scheme set up by NGN to facilitate claims by those who wished to make private applications for compensation rather than suing in the courts, because they too could make a more informed claim, and form a more informed view of settlement proposals. The MPS did not formally agree to the order (it required the protection of a non-consent order) but it did not oppose it. NGN agreed to the form of order, and indeed submitted to an order that it should pay the costs of the police in providing that information. Since the order was not disputed it was not necessary for the court to rule on jurisdictional or discretionary matters which might have affected a disputed application. As far as I know, the system worked well and effectively. There has been a high rate of settlement of claims. I repeat that this regime, and this disclosure material, covered material held by the police as a result of its "Operation Weeting".
A new phase in the investigation has now opened up ("Operation Pinetree"), involving journalists other than those working with the original investigator whose activities gave rise to the first wave of litigation. The original police disclosure regime would not have worked for this new phase, because the evidence is apparently different. So a new order was proposed, albeit operating in part on substantially the same lines. The attitude of the MPS this time is the same as it was last time — it does not consent to the order, but does not oppose it. The terms of the order, as being an order which would not attract the police's opposition, have been agreed by the MPS. The terms of the order have also been agreed so as to protect the particular interests of a particular third-party, whom I do not need to identify here.
However, this time round NGN does not agree to this procedure. It takes the point that there is in fact no jurisdiction to make the order and that in any event the order should not be made in these circumstances. It has therefore argued against it at the hearing before me, and that gives...
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