Various Claimants v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 27 May 2022 |
| Neutral Citation | [2022] EWHC 1222 (Ch) |
| Docket Number | Case No: HC-2000-000003 |
| Court | Chancery Division |
[2022] EWHC 1222 (Ch)
THE HON. Mr. Justice Fancourt
Case No: HC-2000-000003
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
7 Rolls Buildings
Fetter Lane
London, EC4A 1NL
David Sherborne, Julian Santos (instructed by Thomson Heath as lead solicitors, and Charles Russell Speechlys LLP, Hamlins LLP and Taylor Hampton for the individual claimants) for the Claimants
Richard Spearman QC, Richard Munden, Ben Gallop (instructed by RPC) for the Defendant
Hearing dates: 11, 12, 27 April 2022
Approved Judgment
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.
THE HON. Mr Justice Fancourt
Table of Contents
| Page | |
| Introduction | 2 |
| Factual background | 4 |
| Routemap | 6 |
| The causes of action pleaded | 7 |
| The tort of misuse of private information | 11 |
| Section 32 Limitation Act 1980 | 13 |
| The statutory provision | 13 |
| The authorities on s.32 | 13 |
| Analysis | 20 |
| The argument based on “ The Kriti Palm” | 22 |
| What are the essential facts of the claimants' claims? | 25 |
| MGN's case on actual knowledge | 27 |
| The publication claims | 27 |
| The underlying UIG claims | 29 |
| MGN's case on discovery by reasonable diligence – constructive knowledge | 32 |
| Introduction to issues on constructive knowledge | 32 |
| Constructive knowledge at the time of publication | 33 |
| The Claimants' evidence | 34 |
| Analysis | 36 |
| Constructive knowledge as a result of media coverage 2011–2015 | 38 |
| The media coverage of phone hacking 2013–2015 | 40 |
| Conclusions on whether the claimants were put on inquiry | 44 |
| Conclusion on summary judgment applications | 47 |
Introduction
The Mirror Newspapers Hacking Litigation (“MNHL”), which has been running since 2011, is in its fourth phase and more than 80 individual claims are currently progressing towards a third trial within this phase, scheduled to start in about May 2023. A case management conference (CMC 22) was listed to be heard on 3 and 4 February 2022. On 28 January 2022, without prior notice, the Defendant (“MGN”) issued and served applications for summary judgment in 23 individual claims, or alternatively to strike out part of each claim, on the ground that the entire claim or part of each claim was statute-barred when issued.
The particular issue raised by the applications is whether s.32(1)(b) of the Limitation Act 1980 (deliberate concealment by defendant of fact relevant to claimant's right of action) arguably applies and defers the running of the 6-year limitation period for the claims in tort to a time less than 6 years before each claim form was issued. MGN contends that each claimant knew, or alternatively could by using reasonable diligence have discovered, more than 6 years before the date of issue of the claim form, all the relevant facts needed to plead the claims that they have now brought.
MGN's primary case is that each claimant knew all the relevant facts that needed to be pleaded, at or shortly after the publication dates of the articles of which they complain (which range between 2000 and 2009), and so the limitation period started to run at the time of publication. Its alternative case is that each claimant either came to know all the relevant facts between 2011 and 2015 at the latest, or in the further alternative that each claimant could by using reasonable diligence have discovered the relevant facts before 2015, or at the very latest in May 2015.
MGN accepts that it deliberately concealed from the claimants facts relating to unlawful information gathering (“UIG”) activities carried on by its journalists or staff, or by private investigators (“PIs”) on their behalf. For reasons that will have to be explained in a little detail later, there is no agreement between the parties on the relevant facts that were concealed by MGN and are necessary for the causes of action advanced by each claimant, nor the degree of generality or specificity with which the relevant facts could be pleaded for the purposes of the s.32 test.
The claimants' lawyers protested at the time of service of the 23 applications – and still protest – that they are an attempt by MGN to derail the timetable towards trial in May/June 2023. They point out that, in many instances, defences were served many months previously and that accordingly MGN has not made its applications as soon as it could have done. In directions that I made at CMC 22, all defences in the existing claims where no defence has yet been served are to be served by no later than 30 June 2022. Whether the applications were so motivated or not, the answer is to deal with the issues that they raise in the most convenient way, as early as possible in view of the relative shortage of time and the court's and the parties' lawyers' other commitments, which in some instances are heavy.
Accordingly, I directed that up to 6 of the applications in the individual claims would be heard on 11, 12 and 27 April 2022. The parties were able to agree on 6 suitable claims that provide a range of facts relevant to the limitation issues, including dates of issue of the claim forms. It is hoped that my decision on these 6 cases may well enable the parties to agree the fate of the applications in the other individual claims, or at least many of them. Further court time has been made available in June 2022 in case the court needs to decide the outcome of the applications in other cases.
The 6 claimants whose claims have been selected as the initial sample are:
i) Nikki Sanderson (claim issued 7 December 2020),
ii) Zoe Grace (claim issued 3 March 2021),
iii) Ingrid Dupre (claim issued 6 July 2021),
iv) Fiona Wightman (claim issued 30 July 2021),
v) Paul Sculfor (claim issued 15 June 2021), and
vi) Eric Tomlinson (claim issued 5 August 2021).
It will be necessary later to consider some of the evidence in those claims in response to the applications.
Although MGN's applications are for summary judgment and in the alternative to strike out part of the claimants' claims, the argument on paper and in court focused almost exclusively on summary judgment. That is, no doubt, because summary judgment would dispose of the entire claim whereas the strike out application would leave the major part of each claim to proceed to trial.
In the context of a summary judgment application on a s.32 issue, the onus lies on MGN to satisfy the court that at trial there is no real prospect that the claimants will prove the s.32 issues (the onus there being on them). MGN must therefore persuade me that, at trial, a claimant has no real prospect of proving that they did not know, and could not by the exercise of reasonable diligence have discovered, more than 6 years before issue of the claim form, the relevant facts that were concealed, and that there is no other compelling reason why the claim should be disposed of at a trial ( CPR rule 24.2).
Factual background
As is well known, MGN was the publisher of the Daily Mirror, the Sunday Mirror and the Sunday People during the period 1995 to 2011. During that period, a very large number of articles were published containing personal and often sensitive information about well-known figures – principally in the worlds of sport, fashion, film and television – and some less well-known people associated with them. Private actions for breach of confidence and (latterly, following the decision of the House of Lords in Campbell v MGN Ltd [2004] 2 AC 457) for misuse of private information were brought by some well-known personalities. MGN tried and failed to strike out four of the early claims that were brought, on the basis that they disclosed no arguable case of misuse of private information.
There was considerable publicity given to phone hacking claims and allegations, in particular between 2011 (in the tragic Milly Dowler case and with the start of the Leveson Inquiry) and 2015.
In 2014, following the Leveson Report, the conclusion of the Old Bailey trial of Andy Coulson, Rebekah Brooks and others, and many more claims brought by victims of phone-hacking, MGN made public admissions about phone hacking and in February 2015 issued an apology to claimants in the first phase of MNHL, whose claims were moving towards a trial, and to all phone hacking victims. The apology contained limited admissions of wrongdoing by MGN journalists in the search for stories to publish. MGN admitted that on occasions it had acted unlawfully.
The admissions and apology did not prevent several of the first wave claimants from taking their cases to trial and recovering substantial damages. In his judgment in Gulati and others v MGN Ltd [2015] EWHC 1482 (Ch) (“ Gulati”), which was published on 21 May 2015, Mann J found that wrongdoing at MGN's newspapers had been very much more widespread and much more serious in nature than the admissions that MGN had previously made. The judgment received extensive coverage in the media. Mann J's order was upheld by the Court of Appeal, by order dated 17 December 2015.
Both the judgment of Mann J and the judgment of Arden LJ on appeal noted that MGN had gone to considerable lengths to try to conceal from readers and victims the fact that UIG had taken place and was the source of the private and sensitive information in the articles. This was done by falsely attributing the information in the articles to an anonymous “friend” or “pal”, or “persons close to” the subject of the article, or even sometimes by identifying a credible and unsuspicious source of information. This was a deliberate deception by MGN, which understandably caused havoc and...
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