Various Claimants v (1) News Group Newspapers Ltd (2) Glenn Michael Mulcaire
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE VOS |
| Judgment Date | 27 February 2012 |
| Neutral Citation | [2012] EWHC 397 (Ch) |
| Date | 27 February 2012 |
| Court | Chancery Division |
[2012] EWHC 397 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Various Claims
Rolls Building
Mr. Justice Vos
In the matter of Mobile Phone Voicemail Interception Litigation
MR. JEREMEY REED (instructed by Lee & Thompson) appeared on behalf of the Claimants Charlotte Church, James Church and Maria Church.
MR. MICHAEL SILVERLEAF QC, MR. ANTHONY HUDSON and MR. GUY VASSALL-ADAMS (instructed by Olswang LLP) appeared on behalf of the First Defendant.
MR. GAVIN MILLAR QC and MS. ALEXANDRA MARZEC (instructed by Payne Hicks Beach) appeared on behalf of the Second Defendant.
MR. JASON BEER QC appeared on behalf of the Metropolitan Police Service.
MR. DAVID GLEN appeared on behalf of The Guardian and the BBC.
MR. ANDREW EDIS QC appeared on behalf of the Crown Prosecution Service.
Hearing date: 23 rd February 2012
Introduction
Guardian News & Media Limited ("GNM") issued an application notice dated 15 th February 2012 for an order under CPR 5.4C(2) and/or (6) and/or the inherent jurisdiction of the Court that GNM be permitted to obtain copies of the following 4 documents referred to in open court at the Pre-Trial Review in this action on 19 th January 2012 (the "PTR"), from the court records or from a party to the action:-
(1) a statement of case described as the "generic Particulars of Claim" which is to be used for all or some of the claims in this action due to be tried [or rather that was due to be tried] on 13 th February 2012 (the "Generic Particulars of Claim");
(2) the Notice to Admit served by the Claimants on the First Defendant (the Notice to Admit");
(3) the 1 st Defendant's document setting out its response to the said Notice to Admit, also described as "generic admissions" (the "Response");
(4) the document described as the "generic list of issues".
The first three of these documents are together called the "3 documents", and all 4 are called the "4 documents".
I should record immediately the following events that took place last Thursday 23 rd February 2012 (the day on which the argument was heard):-
(1) No objection was taken by any party to the disclosure to GNM of the generic list of issues, the 4 th document in unredacted form. Accordingly, that document has already been made available to GNM.
(2) At the end of the hearing, and in the light of the course it had taken, I asked the parties whether there would be any objection if GNM were to be provided immediately with copies of the 3 documents, redacted to exclude all the passages to which either the 1 st Defendant, News Group Newspapers Limited ("NGN"), or the 2 nd Defendant, Mr Glenn Mulcaire ("Mr Mulcaire") had taken exception. No objection was taken to this course, and accordingly such redacted copies were provided to GNM.
(3) After the hearing, I received a letter from the Editorial Legal Director of the Daily Telegraph, whose representative had been present in Court at the hearing. He sought copies of the same documents that I had indicated should be made available to GNM. I acceded to his request and made it clear to the parties, through my clerk, that what applied to GNM applied to the media generally, so that the parties should make available such copies to any media organisation requesting them. The same will apply if, pursuant to this judgment, further material is made available to GNM. It would be wholly disproportionate and inappropriate to require each media organisation to make its own separate application, although if the parties are faced with an application by a third party that they believe raises different issues from this application, it will be open to them to apply to me for a further determination.
Stripped of the peripherals, the nub of the issue, therefore, that I now have to decide is whether certain material concerning Mr Mulcaire contained in the 3 documents should be redacted before those documents are disclosed to the press. Mr Gavin Millar QC and Ms Alexandra Marzec, counsel for Mr Mulcaire, have contended before me that reporting of some parts of the 3 documents will create a substantial risk that the course of justice in the further criminal proceedings that Mr Mulcaire may face will be seriously impeded or prejudiced.
This application should, according to Mr Millar, be seen alongside the application that Mr Mulcaire had previously made for a postponement of reporting order under section 4(2) of the Contempt of Court Act 1981 ("COCA"). That application was due to be heard on Thursday and Friday 23 rd and 24 th February 2012, on the basis that the trial of the remaining telephone interception claims were fixed for a trial that should have commenced today. But since all those claims have now settled and there will be no trial – at least at this stage—Mr Mulcaire's application for a postponement of reporting order became unnecessary, and was not brought on for hearing.
The grounds of GNM's application are stated on its face as follows:-
(1) "The [4 documents] and their content entered the public domain when they were referred to and relied upon compendiously but extensively by counsel and also referred to and read by Mr Justice Vos during the course of submissions at the PTR on 19 January 2012. Extracts were also read out. The documents were in the bundles used by the Judge for and at the hearing. The hearing was held in public and the press and public were present throughout. No reporting restrictions were made so far as material to this application. Examples of the references to the documents are found in the transcript of the hearing at pages 1, 4, 8, 9, 10, 12, 13, 14, 22, 34, 35, 37, 38, 44, 46, 48, 55, 58, 59, and 61.
(2) [GNM] wishes and requires to obtain copies of the documents because without them it is unable to (a) understand fully the submissions that were made at the PTR, and (b) understand the issues more generally which are and are not in dispute in this action, particularly for the purpose of being able to follow the forthcoming trial, as to which the issues in the documents referred to above are centrally relevant.
(3) Ordinarily pursuant to CPR 5.4C(1) a non-party can obtain a copy of statements of case from the court records as of right unless an order has been made which prevents this.
(4) In this action an order was made by Mr Justice Vos dated 15 April 2011 which at paragraph 2 appears to prevent [GNM] from obtaining as of right the document in (i) above, and also those in (ii) and (iii) if, as [GNM] will submit, they are also properly to be classified as statements of case. [GNM] applies for permission to obtain copies of these documents pursuant to CPR 5.4C(6) or the inherent jurisdiction.
(5) A further order was made by Mr Justice Vos on 20 May 2011 which set out the process by which the parties to the action should proceed in relation to what they consider to be confidential documents.
(6) Further or alternatively, GNM applies for permission to obtain the documents in (ii) to (iv) pursuant to CPR 5.4C(2)".
(7) The Claimants' solicitors have confirmed that they consent to this application."
Before dealing with the details of the application, I should set out briefly, some of the essential background chronology.
Background chronology
On 18 th April 2011, I made an order restricting the inspection of documents on the court file as follows:-
"1. These directions shall be directions in the Current Claims and, where appropriate in future claims issued against one or both of the Defendants in which allegations of breach of confidence and/or misuse of private information arising out of interception of phone voice messages are made ("the Future Claims")
2. No one shall be at liberty to inspect or obtain any document from the court record or any documents referred to during this Case Management Conference, including anyskeleton arguments that have been served, unless an application for the same is made and granted …".
The intention of this order was to hold the ring whilst the parties negotiated and agreed an appropriate confidentiality regime. Some of the parties to this application seem to have thought that this part of order continued, but in fact it did not survive beyond 20 th May 2011.
On 20 th May 2011, I made an order restricting access to the court file as follows:-
"2. Until 10am on Monday 6 June 2011 (when the Order in this paragraph will cease to apply), no one shall be at liberty to inspect or obtain any document from the court record or any documents referred to during this Case Management Conference, including any skeleton arguments that have been served, unless an application for the same is made and granted …
4. Until 10am on Monday 6 June 2011 the Claimants have permission to consider the material on their individual court files and to place any material they consider necessary in a Confidential Schedule, subject to them first sending a copy of the Confidential Schedule to [NGN] and [NGN] agreeing to the same.
5. Until 10am on Monday 6 June 2011 [NGN] has permission to consider the material on their individual court files and to place any material they consider necessary in a Confidential Schedule, subject to them first sending a copy of the Confidential Schedule to the Claimants and the Claimants agreeing to the same.
6. No document in the Mobile Phone Voicemail Interception litigation may be placed on the Court File until 7 days after it has been served on the other parties to the litigation, with liberty to apply in default of agreement. This shall not preclude any party from taking a step in the litigation, whether by issuing claims or issuing applications or otherwise, prior to the expiration of that 7 day period, save that no confidential information may be included in any document so issued. Documents shall be hand delivered...
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