Various Claimants v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 04 June 2020 |
| Neutral Citation | [2020] EWHC 1436 (Ch) |
| Court | Chancery Division |
| Date | 04 June 2020 |
| Docket Number | Case No: HC-2000-000004 |
[2020] EWHC 1436 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Rolls Building, 7 Rolls Buildings
Fetter Lane, London EC4A 1NL
Mr Justice Mann
Case No: HC-2000-000004
David Sherborne, Sara Mansoori and Julian Santos (instructed by Hamlins LLP) for the Claimants
Clare Montgomery QC, Antony Hudson QC and Ben Silverstone (instructed by Clifford Chance LLP) for the Defendants
Hearing dates: 20 th 21 st and 22 nd May 2020
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.
JUDGMENT ON AMENDMENT OF GPOC RE LIMITATION
Amendment – limitation issues
This judgment deals with the second disputed area of amendments to the GPOC. This area deals with limitation. The claimants seek to add a new section to the existing GPOC headed “The Claimants' generic case on the issue of limitation”, which comprises 22 paragraphs spanning 12 pages. Some of the paragraphs are very long. Because of that length I shall, on occasion, satisfy myself with citing paragraphs without quoting their content. The content is, of course, apparent to the parties.
The defendant has pleaded a limitation defence in relation to the claims in this tranche (Tranche 4) of this litigation, having not taken the point in previous tranches. The events giving rise to the claims in this litigation are capable of going back to 1996, and no events after 2011 are pleaded. Obviously far more than 6 years has passed since those events; all the cases in this tranche of the litigation were issued in the last couple of years. That leads to the possibility that limitation will be pleaded, and it now has been. However, the defendant has expressly conceded that it will not contest an averment by a claimant that for the purposes of section 32 of the Limitation Act 1980 time did not begin to run before May 2011. That is presumably because it acknowledges that the concealment extension of the limitation period in that section is capable of applying until then (though it disputes the concealment). It was in 2011 that serious publicity started to be given to the phone hacking allegations made in relation to the defendant, and in particular to the News of the World. In response to the limitation plea the claimants do indeed seek to rely on section 32 of the Limitation Act 1980, and the questions that arise on this part of the amendment application relate to how they should go about that.
Section 32
Section 32 of the 1980 Act provides:
“ 32 Postponement of limitation period in case of fraud, concealment or mistake
(1) Subject to [subsections (3) and (4A) [, (4A) and (4B)]] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—
(a) the action is based upon the fraud of the defendant; or
(b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or
(c) the action is for relief from the consequences of a mistake;
the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent.
(2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty.”
The current form of the GPOC
The conventional way of dealing with limitation points and the invocation of section 32 would be for a claim to be made in Particulars of Claim, a limitation defence to be pleaded, and then section 32 to be pleaded in reply. However, in this litigation the claimants, in terms of pleading, have anticipated the limitation defence in the GPOC, which conventionally have contained only material which would otherwise be found in Particulars of Claim. The existing form of the document contains a summary of alleged acts of concealment and of destruction of evidence and paragraph 6 contains the following:
“”
“6. For the avoidance of any doubt, the Claimants will rely at trial upon such lies, concealment and destruction for the following purposes in this litigation:
…
6.3 As vitiating any reliance upon a defence of limitation. The Claimants will rely upon NGN's deliberate concealment and destruction of evidence of its wrongdoing, as well as its breach of disclosure obligations and duties, as rebutting any attempt to seek to defend these claims on the basis that they fall outside the statutory limitation period and should therefore be statute-barred.”
(The underlined words are sought to be introduced by amendment. The italicised words are in the original.) Although that does not refer in terms to section 32, it is a plain enough reference to it, and the defendant obviously thought so too because in its Defence to that pleading in its current form it “notes” paragraph 6.3 and sets out the concession referred to above “for the purposes of section 32 of the Limitation Act 1980”.
Paragraph 3 contains a clear allegation of concealment to avoid matters coming to light:
“3 … Senior NGN Employees took deliberate steps to lie about, conceal and destroy evidence of these habitual and widespread practices in in order to avoid the true nature, scale and extent of such activities being revealed and/or the subject of legal proceedings.”
Turning to the rest of the GPOC in its current form, it starts by summarising the Claimants' case. It pleads, in general terms, the widespread misuse of confidential information by the defendant's newspapers (both The Sun and the News of the World), and its concealment. Paragraph 5 contains more summaries of acts of concealment relied on, including the deliberate destruction of documents in 2010 and 2011 (after claims had been intimated).
The document then goes on to plead a lot of material said to show the knowledge of senior personnel at the defendant of unlawful activities, giving examples of their involvement and knowledge. It also pleads acts of concealment of the facts – for example, paragraph 11.3A contains a particularised allegation of concealment of the true nature of a contract under which an individual (Mr Mulcaire) was engaged to carry out unlawful information gathering activities. There is extensive pleading of what is said to be a deliberate policy of email deletion in 2011 in order to conceal activities from view, particularly in the light of a police investigation and incoming civil claims. Paragraph 16 refers to the destruction of evidence.
The list of acts and allegations are too extensive to produce here, and I do not really need to do so. The point which arises from them is that allegations are already made as to what it was that required concealment, what steps were taken to conceal them, that the steps were deliberate and that the result was that the facts would not be discovered for some time.
Paragraph 16 pleads further allegations of destruction (it contains some amendments which are objected to. They are shown underlined):
“Despite its full knowledge of these civil claims, the MPS investigation into Operation Weeting, and the clear obligation and duty to preserve documents, NGN deliberately chose through its Senior Employees to destroy or permit the destruction of substantial amounts of highly material evidence. This was done with the deliberate intention of concealing facts relevant to Claimants' and potential Claimants' rights of of action and in circumstances in in which it was unlikely to be discovered, at least for some time.”
Apart from the amendments that I have mentioned above, no objection was taken to all the pleading to which I have hitherto referred, including the implied references to section 32 (which, as I have indicated, were clearly understood as such by the defendant). This includes factual material proposed to be added by amendment. There has been no attempt to oppose reliance on section 32 in the pleading as it stood before the amendments despite the fact that it had stood (and had been pleaded to) for many months.
The opposed amendments
The main objection is to a whole new section from paragraphs 20 onwards, but prior to that there are still other objections. They are as follows:
(i) The introduction of a paragraph 5.7:
“5.7. Further, during this litigation NGN has deliberately breached (a) its legal duty by filing false or misleading witness statements in the course of MTVIL (including failing to reveal the targeted deletions in January 2011), for the purposes of or at the Leveson Inquiry and during the MPS investigations; (b) its duty of disclosure by (i) not providing relevant documents, such as disclosure relating to unlawful information gathering at The Sun; and/or the Features Department of The News of the World; and/or commissioning by NGN journalists of private investigators to unlawfully gather information; and/or (ii) by deliberately redacting documents to conceal highly relevant information (see paragraphs 40.5 – 40.6 below), in circumstances where this was unlikely to be discovered by the Claimants, at least not for some time.”
This introduces the concept of certain legal duties which are said to justify reliance on section 32(2) because they were broken.
(ii) The underlined words in paragraph 6.3, which I have set out above. This looks like an attempt to introduce the same point.
(iii) The parts of paragraph 16 shown...
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Various Claimants v News Group Newspapers Ltd
...facts in their own individual pleadings. I have recently ruled on an application to amend the GPOC and allowed the amendments — see [2020] EWHC 1436 (Ch). This judgment should be read with that one to provide some context for some of the issues that now 6 It would seem that originally the ......