Various Claimants v News Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 19 June 2020 |
| Neutral Citation | [2020] EWHC 1593 (Ch) |
| Date | 19 June 2020 |
| Docket Number | Case No: HC-2000-000004 |
| Court | Chancery Division |
[2020] EWHC 1593 (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 Defendant
Hearing date: 22 nd May 2020
Approved Judgment
STRIKE-OUT APPLICATIONS 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.
Introduction
This judgment deals with two applications by the defendant which are capable of having a significant effect on this managed litigation, and not only in terms of the forthcoming trial of Tranche 4 cases in October of this year. In them the defendant seeks to strike out all Replies that have recently been served in cases in this Tranche on the basis that they are an inadequate invocation of the provisions of section 32 of the Limitation Act 1980 (“the Act”), and to strike out certain cross-references in those Replies which rely on section 32(2). In fact, the latter application is an attempt to revisit a matter which is said to have been dealt with (by being available but not being properly raised) in a previous amendment application, as I shall explain.
I shall not set out the nature and background to this litigation, which has been set out in countless previous judgments. It suffices to say that in it a large number of claimants claim that the defendant has infringed their privacy rights by engaging in unlawful information gathering against them (in the form of, inter alia, voicemail interception and blagging information), some of which activities resulted in stories being printed about them which again infringed their privacy rights. The events in question are said to have taken place between 1996 and 2011, but it is probably fair to say that a large part of the events are likely to have taken place in the years in the middle of that period. The large number of claimants over the years have been batched into Tranches. All cases in Tranches 1 to 3 have been settled without a trial taking place.
Tranche 4 is the current batch. There are well over 100 cases in this Tranche if one counts cases which have just been started (there was a cut-off date at the end of May). There is to be a trial of cases in this Tranche in October of this year. Nothing like all the Tranche 4 cases will be tried, or even ready for trial, at that point. Those to be moved towards trial (if not settled before trial) will be chosen later this term.
In this Tranche the defendant has started to plead a limitation defence to all cases. This has led to the claimants pleading a concealment riposte pursuant to section 32 of the Act. The acts of concealment are extensive, ranging from the concealment which comes naturally from a covert act through to the deliberate destruction of emails in 2011 which is said to have been done in order to cover the defendant's tracks once it became apparent that claims were being brought and criminal investigations started. The concealment case is an extensive one, and, as will appear in relation to the section 32(2) point, is said to extend into the conduct of these proceedings and how disclosure has been given.
Because the claimants all rely on the same sort of facts in order to run the section 32 riposte, and because the concealment acts (or some of them) are also relied on in relation to the claims themselves as part of a generic case, the claimants are entitled to rely on a common pleading called the Generic Particulars of Concealment and Destruction (“GPOC”). This provides a long document to which individual claimants can, if they wish (and they all do), subscribe. It prevents them all having to set out the same 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 arise.
It would seem that originally the claimants may have been content to rely on the GPOC as setting out the section 32 ripostes that they wished to make to the limitation defence, without serving a Reply, and the defendant had indicated through their leader, Ms Montgomery QC, that they were content for that to be done, without accepting that what was pleaded there was enough in any individual case. However, they seem recently to have changed their minds (possibly as a result of a better understanding of remarks made by Ms Montgomery in court) and 17 of the claimants served Replies over the period 7 th to 9 th April 2020. It is those replies (and any served subsequently) that Ms Montgomery seeks to strike out. She did so in an application dated 7 th May 2020, which was issued shortly prior to the hearing of the claimants' application to amend the GPOC. Mr Sherborne, for the defendants, said he could not be expected to be ready to meeting the striking out application at the same time as his amendment application, so it was not dealt with even though it can now be seen (as would probably have been apparent at the time if there had been time to consider it) that it raised related issues to those which had to be dealt with on the amendment application. In my judgment on the amendment point I referred to this application, and offered what I had hoped were some helpful remarks which might obviate the need for this one, but it has turned out that I have not helped the parties to a settled resolution of the point.
Those replies also plead a reliance on two particular paragraphs in the GPOC and there is a separate application to strike those out. That is the point that arises under section 32(2) of the Act.
I shall deal first with the general strike-out application, and then the section 32(2) point.
PART 1 — STRIKING OUT THE REPLIES
Striking out the Replies — outline
The basis on which the defendant seeks to strike out the Reply is, in essence, that it does not properly plead matters which need to be pleaded under section 32(1) if the claimants are to be allowed to run the point that material facts relevant to their cause of action have been concealed from them. The same complaint was made in relation to amendments sought to be made to the GPOC, but in the judgment referred to above I allowed the amendment on the footing that a generic pleading did not have to plead claimant-specific matters as to the date of knowledge or putative knowledge required by section 32(1) of the Act. Ms Montgomery now takes the same sort of point in relation to the Replies, which is where Ms Montgomery says that detail should now appear. Since it does not appear, the Replies should be struck out.
Structure and content of the Replies
That attack requires consideration of the structure and content of the Replies. The Replies were served in anticipation of the amendments (actually re-amendments) to the GPOC being allowed because they cross-refer extensively to that document as amended.
Ms Montgomery took, as an example, the reply of Gary Lucy on the footing that it was typical, and her submissions could be taken to apply to all Replies. Mr Sherborne did not suggest that Mr Lucy's case was untypical though he did point to some other Replies which contained more specific pleadings in answer to more specific Defences.
Paragraph 3 pleads that Mr Lucy relies on section 32 and pleads “as follows”. Because of the dispute as to whether what follows is sufficient, it is unfortunately necessary to set it out in full:
“a. The Claimant repeats and relies upon paragraphs 20 to 40 of the Re-Amended Generic Particulars of Concealment and Destruction (“Re-Amended C&DPOC”). He did not discover, nor could he have with reasonable diligence discovered, the facts pleaded therein which facts are relevant to the Claimant's rights/causes of action and have been deliberately concealed from him by the Defendant, until a date which is within 6 years of his claim having been brought.
b. The effect of NGN's concealment as set out in the Re-Amended C&DPoC upon the Claimant was that relevant facts which were required in order for him to plead his case against NGN were concealed, including (but not limited to) the following:
(i) In support of the entirety of his claim, the Claimant will rely on a number of crucial relevant facts set out in the generic statements of case and obtained from generic disclosure received in this litigation as demonstrating the scale and unlawful nature of the activities of the Defendant's journalists, the activities of private investigators instructed by them, the time period during which the unlawful information-gathering took place and the general circumstances in which the information was obtained by the Defendant's journalists. These facts, which are summarised in paragraphs 30 to 41 of the Re-Amended C&DPoC, are essential to his rights/causes of action. For the reasons set out in paragraphs 30 to 41 of the Re-Amended C&DPoC, this generic disclosure had been deliberately concealed by NGN until it was obtained by the Claimants through a series of specific disclosure applications, most of which were resisted strenuously by NGN. The Claimant was not aware of these facts, and could not with reasonable diligence have discovered them, until a date within 6 years prior to the issue of these proceedings.
(ii) In support of his causes of action at paragraph 6(b) of his Particulars of Claim, the Claimant relies on the targeting of him...
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