Various Claimants v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fancourt |
| Judgment Date | 19 April 2024 |
| Neutral Citation | [2024] EWHC 902 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: HC-2000-00004 |
[2024] EWHC 902 (Ch)
Mr Justice Fancourt
Case No: HC-2000-00004
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (Ch)
IN THE MOBILE TELEPHONE VOICEMAIL INTERCEPTION LITIGATION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
David Sherborne, Kate Wilson and Ben Hamer (instructed by Hamlins LLP) Counsel for the Claimant
Anthony Hudson KC, Ben Silverstone and Harry Lambert (instructed by Clifford Chance LLP) Counsel for the Defendant
Hearing dates: 17 April 2024
APPROVED JUDGMENT
Friday, 19 April 2024
( 10:00am)
Judgment by Mr Justice Fancourt
This is an application issued on 13 February 2024 by News Group Newspapers Limited (‘NGN’) for a direction in the mobile telephone voicemail interception litigation (‘MTVIL’) that there should be a trial of a preliminary issue, namely:
“Whether for the purposes of section 32(1) of the Limitation Act 1980, the claimant knew or could with reasonable diligence have known more than six years before he/she issued proceedings, facts that would have led a reasonable person to discover that they had a worthwhile claim, in the sense that such a person would have sufficient confidence to justify embarking on the preliminaries to issuing proceedings, such as submitting a claim to the defendant, taking advice and/or collecting evidence.”
The issue identified, therefore, amounts to this: can the claimants defeat what would otherwise be a successful limitation defence by relying on section 32(1)(b) of the Limitation Act? I will refer to that as the “section 32 issue”.
There are currently 42 claims in this fourth tranche of the MTVIL that have not settled and are proceeding towards a trial in January 2025 of between six and eight weeks' duration. NGN accepts that, practically, there cannot be a preliminary issue in more than a selection of those claims, and that is likely to require a trial of in the region of six to seven days. Such a trial, if now separately listed, would be heard in a window between April and July 2025, i.e. after the trial in January 2025 will have concluded. NGN proposes therefore that the fixed trial, in January 2025, should be vacated and the window used instead for a trial of this preliminary issue in certain claims. If that happened, a six to eight week trial would not be listed afresh, now, before the Michaelmas term 2025 at the earliest, and possibly not until 2026.
The section 32 issue is proposed by NGN to be tried on the basis that all the factual allegations about breach and deliberate concealment are assumed for this purpose to be true. That includes the extensive allegations of deliberate concealment and destruction of evidence in the re-amended generic particulars of concealment and disruption.
The section 32 issue, as NGN submits, is a ‘threshold’ issue for all the remaining claims. All these claims were issued more than six years after the causes of action arose, and so they depend for success on section 32(1)(b). Accordingly, if there is a preliminary issue as sought by NGN, and NGN succeeds on a given claim, that will dispose of that entire claim, but not other claims. If the claimant succeeds to any extent on the preliminary issue, that claim will continue towards a trial, shorn of the limitation defence. The other issues in the claim, in particular the allegations of misuse of private information or breach of confidence, the generic issues about the extent of unlawful information gathering and concealment and false denials by NGN, causation of loss and quantum of damages, would then be tried.
It is clear that the section 32 issue is an important issue in each of these claims and that it is an issue on which NGN has at least a real (as opposed to fanciful) chance of succeeding on many claims. NGN does not put its case higher than that for the purposes of this application, and the claimants did not dispute that that was a fair characterisation. It is, however, apparent that NGN considers that its prospects of success are good, if not strong, on many of the claims.
Given that there cannot be a trial of preliminary issues in every claim, which would take as long as the full trial is listed for, if there is to be a preliminary issue, as sought, it is important that claims are selected to be as far as possible representative of the different relevant fact patterns in all the remaining claims. That is so that a decision on about six claims may be likely to persuade the remaining parties that their cases will be decided in the same way and thereby encourage settlement. Whether that is a realistic ambition is one of the matters that I shall have to consider.
So far as the law is concerned, the court obviously has always had power to order a trial of a preliminary issue. That power is now contained in rule 3.12 of the Civil Procedure Rules. Orders for preliminary issues are only made, or should only be made, after careful consideration of the possible consequences, including in particular whether it will unexpectedly turn out to be a means of delaying the final determination of the claims and increasing the costs. Experience shows that this is often the case. Sometimes, as a result of a preliminary issue, there are two trials and two appeals to the Court of Appeal, and it takes twice as long as a single trial. On the other hand, with the much greater emphasis placed by the rules of court on alternative dispute resolution in the 2020s, preliminary issues which significantly increase the chances of settlement, even if they will not resolve the claim or a part of the claim, are sometimes ordered.
There is also the point forcefully made, on behalf of NGN, that limitation issues should in principle be decided on a preliminary basis. The limitation defence exists so that where a claim is stale the defendant is not be put to the trouble of investigating historic matters and finding witnesses for a full trial. If limitation issues are only decided at such a trial, the policy of the law would be undermined, to the extent that the limitation defence succeeds.
On the other hand, if the parties have already proceeded a substantial way towards a trial, that policy objective is unlikely to be achieved by ordering a late preliminary issue and costs may be wasted if it is. Moreover, it is sometimes difficult to isolate a limitation issue, if the issue is not one of law only, or if the facts that are relevant to it are not agreed or cannot safely be assumed, or sometimes if the facts are interwoven with facts relating to other issues that would be live at the trial.
In a number of cases, observations have been made to the effect that preliminary issues should usually only be on questions of law; that lengthy preliminary issues, where there are disputed facts, should be regarded as very exceptional; and that caution should be exercised in ordering preliminary issues that will involve cross-examination of witnesses who will also be called at trial. See, amongst other cases, McLoughlin v Jones [2002] QB 1312; Bond v Dunster Properties Limited [2011] EWCA Civ 455; Gorton v McDermott Will & Emery [2018] EWHC 2045; Mather v Ministry of Defence [2021] EWHC 811 (QB) and Bindel v PinkNews Media Group Ltd [2021] EWHC 1868 (QB). The decision in each case, however, is a fact sensitive case management decision and observations made in other cases can only be guidance.
The right approach to deciding whether to have a preliminary issue in a particular case is generally taken to be summarised by Neuberger J in Steele v Steele [2001] CP Rep 106, a case where the claimant claimed repayment of monies previously laid out for the benefit of her then husband and exoneration in relation to security provided for his benefit. The defendant raised various limitation issues. The Master had directed a trial of preliminary issues on limitation and adjourned the case to the Judge to be heard. The Judge declined to do so, considering that the preliminary issues were inappropriate, as directed. He identified various questions that should be asked in what he called “a case such as this”, that is, one in which there were various limitation issues raised and various arguments why relief that was claimed was not subject to any period of limitation, which were all questions of law. That is why Neuberger J was concerned with the question of what was involved in identifying the relevant facts and whether they were to be agreed.
The ten questions that Neuberger J identified were the following. First, whether the determination of the preliminary issue would dispose of the case, or at least one aspect of the case. Second, whether the determination of the preliminary issue could significantly cut down the cost and time involved in pre-trial preparation, and in connection with the trial itself. Third, if the preliminary issue is an issue of law, how much effort will be involved in identifying the relevant facts for the purposes of the preliminary issue. Fourth, if the preliminary issue is one of law, to what extent is it to be determined on agreed facts. Fifth, where the facts are not agreed, the court should ask itself to what extent that impinges on the value of a preliminary issue. Sixth, whether the determination of a preliminary issue may unreasonably fetter either or both parties, or indeed the court, in achieving a just result. Seventh, is there a risk of the determination of the preliminary issue increasing costs and/or delaying the trial. Eighth, to what extent may the determination of the preliminary issue prove irrelevant. Ninth, to what extent is there a risk that the determination of a preliminary issue could lead to an application for the pleadings being amended so as to avoid the...
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