Various Claimants v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Floyd,Lord Justice McCombe |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] EWCA Civ 350 |
| Docket Number | Case No: A3/2018/0801 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 March 2019 |
[2019] EWCA Civ 350
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
MR JUSTICE MANN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
THE SENIOR PRESIDENT OF TRIBUNALS
( Sir Ernest Ryder)
and
Lord Justice Floyd
Case No: A3/2018/0801
Richard Spearman QC (instructed by Reynolds Porter Chamberlain LLP) for the Appellant
David Sherborne, Sara Mansoori and Julian Santos (instructed by Atkins Thomson) for the Respondents
Hearing date: 13 February 2019
Approved Judgment
This appeal raises a question concerned with the protection from disclosure of confidential journalistic sources enjoyed by publishers under section 10 of the Contempt of Court Act 1981. It arises in the phone hacking litigation brought against the appellant, MGN Limited (“MGN”), by the respondents, who bring claims for misuse of private information as a result of the unlawful interception of voicemail messages left on their mobile phones. MGN claims that an order made in the proceedings in 2015 for early disclosure by MGN gives rise to a real risk, in the case of one claimant, that MGN will have to disclose material which would reveal the identity of a confidential journalistic source. MGN accordingly applied to the judge for a variation of the order made in all the claims so as to prevent any disclosure occurring without the consent of the alleged source. The judge, Mann J, who is the Managing Judge in this and other phone hacking litigation, refused the application to vary. MGN appeals to this court against his judgment, dated 22 March 2018, and his consequent order, with the permission of Newey LJ granted on 11 April 2018.
Background to the application
On 21 May 2015 Mann J handed down his judgment in Gulati v MGN Limited [2015] EWHC 1482 (Ch). At paragraphs 6 to 10 he gave a general introduction to the techniques used for phone hacking, which is all that is necessary for an understanding of the issues on this appeal:
“6. Although the colloquial expression “phone hacking” has for some time been used to describe the activities which lie at the heart of this case, (and I shall continue to use it) a more accurate description would be “mobile voice-message interception”. It does not involve listening in to actual two-way phone conversations. It works in the following way.
7. A mobile telephone account comes with a voicemail box in which the account holder can receive, and listen to, voice messages left by callers when he or she does not answer the phone. The messages can be retrieved from the phone itself, or by ringing in from an outside line. The mailbox can be protected from an unauthorised person ringing and listening to voicemail messages by a PIN code. At the time of the events covered by this action some of the mobile phone companies had default PIN codes, and many users did not bother to change them (if indeed they knew that they existed). Other users changed the PIN codes but used codes that were predictable — perhaps consecutive numbers, or years of their birth or of others close to them. An unauthorised person who knew or could guess those PIN codes could use them to access another's voicemail account.
8. There were two ways in which an unauthorised person could access another's voicemail box. The trick is to get through to the voicemail system, and not the owner of the phone in person. If the owner answered the phone the hacker would not be in the voicemail system. So, unless one knows that the owner will not pick up (so that the call goes through to voicemail after a number of unanswered rings) one has to ring when one knows the phone line is in use so that the call goes through to voicemail. The first hacking technique produces this effect. It involves the use of two phones simultaneously. The technique was described by Mr Evans, one of the witnesses. The first phone was used to ring the telephone number of the victim. He would count to three and then use the second phone to dial the same number. Because a call was already being made the second phone was likely to go to the caller's voicemail box. Phone 1 was immediately disconnected, usually without actually ringing the receiving phone so as to alert the owner of the phone, so the owner would often not know that an attempt had been made to ring his or her phone. At that point the unauthorised caller could concentrate on the second phone, and the voicemail box. Once the voicemail system had responded the hacker could behave like the owner, and press keys which allowed the entry of a PIN, which in turn allowed access to the messages that had been left there. This, of course, required knowledge of the PIN, but because so many people never changed their PIN number from the default number provided by the network, or used a predictable number which could be accurately guessed by the hacker, their phone accounts were vulnerable to this activity. This technique was given the slang term “double tapping”.
9. The other access route applied only to the Orange network. This network provided a separate number which would be dialled into from any phone in order to get voicemail messages. The dialler would have to identify the phone number whose messages were being recalled, and then enter the PIN. This route in was available to anyone who knew the number of the phone in question and could ascertain or guess the PIN. The voicemail messages could then be accessed.
10. This activity proved to be a very useful source of information for the newspapers involved in this case. Once into a user's voice mailbox, a journalist could listen to messages left there and often find out the numbers of the people who left them. The content of the message might itself be of significance, as might the identity of the person who left it. Furthermore, the number of the person who left it could also be ascertained, and if it was a mobile number an attempt could be made to hack into that user's voicemail as well. In that way a pattern of sources of information could be built up. Mr Evans, the principal witness about the actual hacking activities in the case, described this extended activity as “farming”.”
In his judgment in Gulati, Mann J concluded that unlawful phone hacking was rife throughout the Daily Mirror, The Sunday Mirror and The People, which are all newspapers published by MGN. He proceeded to assess and award damages to eight representative claimants for the intrusion and harm caused to them by the hacking of their mobile phones. An appeal to this court against his judgment and order was dismissed on 17 December 2015: Gulati v MGN Ltd [2015] EWCA Civ 1291. At paragraph 106 Arden LJ (with the agreement of Rafferty and Kitchin LJJ) said:
“Indeed, so far as I can see, there were no mitigating circumstances at all. The employees of MGN instead repeatedly engaged in disgraceful actions and ransacked the respondents' voicemail to produce in many cases demeaning articles about wholly innocent members of the public in order to create stories for MGN's newspapers. They appear to have been totally uncaring about the real distress and damage to relationships caused by their callous actions. There are numerous examples in the articles of the disclosure of private medical information, attendance at rehabilitation clinics, domestic violence, emotional calls to partners, details of plans for meeting friends and partners, finances and details of confidential employment negotiations, which the judge found could not have been made if the information had not been obtained by hacking or some other wrongful means. The disclosures were strikingly distressing to the respondents involved.”
The reference to damage to relationships perhaps requires some further explanation. Members of the public who found details of their personal and private lives appearing in the newspapers (unknown to them via the hacking of their phones) naturally came to suspect that friends, relatives or other close associates were leaking this information to the press. This suspicion was supported by the fact that newspaper articles based on the private information would often describe the source as a friend of the claimant. It is not difficult to see how these suspicions could lead to the poisoning of relationships and the breakdown of trust between individuals.
Because the unlawful phone hacking activities had been undertaken over a number of years, and because much of the phone hacking had been carried out using pay-as-you-go mobile phones which had been disposed of or destroyed, there was little in the way of a documentary record of the extent to which any individual's phone had been hacked. One of the important threads of the evidence was constituted by the existence of some call data from MGN's landlines to the claimants' mobile telephones. This was in itself of some value to the claimants, but the process known as “farming” (described by Mann J in the passage cited above) meant that close associates of the claimants would be subjected to phone hacking as well, and private information of the claimants would often be obtained by hacking into these associates' phones as well and obtaining access to private voicemail messages left by the claimant. In a judgment dated 8 July 2015 ( Various Claimants v MGN Limited [2015] EWHC 2381 (Ch)) Mann J noted:
“The hacking of associates is as significant in many cases, or as likely to be as significant in many cases, as the hacking of the claimant. Merely to produce the fruits of a search in relation to calls made to the claimant's number may produce an entirely false impression.”
It was on the basis of these considerations that Mann J, shortly after handing down his judgment...
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